Frank Commerford sued the Halle Bros. Co. in the Cuyahoga Common Pleas for injuries ■ sustained in a collision between a truck of the Halle Bros, and a machine in which he was riding. Commerford alleged specifically that the accident occurred because of the negligence of the Company in not having a tail light in the rear of its truck. He recovered a $1500 judg-ment.
The Halle -Bros, prosecuted error and for its assignments declared that: 1. Commerford failed to offer the driver of the automobile in which he was a passenger as a witness; 2. The court erred in refusing to charge on the question of contributory negligence, ai^d, 3. Relating to testimony as to medical expenses. The Court of Appeals held:
1. The conduct of Commerford in omitting to produce evidence within his power affords occasion for presumptions against him since it raises a’ strong suspicion that if such testimony were produced it would operate to his prejudice. While such inference may be had it is not imperative that the jury draw suchinference. In other words, a judgment cannot be reversed merely because there was a failure on part of Commerford to introduce a certain witness.
2. It is admitted that the doctrine of imputed negligence does not prevail in Ohio. There is no evidence which tends to show that. Commerford omitted to do anything which could have prevented the accident, and the court was under no duty to charge on the question of contributory negligence, when there was no evidence whatsoever to’sustain it.
Judgment of the Common Pleas affirmed.