Opinion
No. 14459
February 2, 1915, Decided
1. Where two causes combine to produce an injury to an occupant of a vehicle passing over a bridge in a public road, both of which are in their nature proximate, the one being a culpable defect in the bridge and the other an occurrence as to which neither party was at fault, those whose duty it was to maintain the bridge in a reasonably safe condition will be liable to the injured person.
2. About thirty years prior to the injury complained of the defendant railroad company or its predecessor in title made a cut in, under and through a public highway and erected a bridge therein over the cut and over its railroad; the company thereafter and until the date of the injury maintained the bridge: Held, Under the state of facts, it was the duty of the company to make every reasonable provision for the safety of the public in the construction and maintenance of the bridge. To this end it was its duty to erect and maintain reasonably substantial guardrails on the bridge to serve as a protection to life and property.
3. It is proper for a court to send the pleadings in a cause to the jury during its deliberations, but the pleading of a party is not admissible in evidence on the trial to prove its allegations. A pleading of one party may be introduced by his adversary to prove admissions or to impeach statements made on the trial.
This was a proceeding brought by the defendant in error against the railway company to recover damages for wrongfully causing the death of plaintiff's decedent.
The second amended petition, after alleging the qualification of the plaintiff and the incorporation and purposes of the defendant, avers that the defendant owns and operates a railroad running from Toledo to Athens, Ohio; that it also owns and operates a branch, known as The River Division Branch, extending southeasterly to Pomeroy, Ohio; that it or its predecessors in title built and constructed said river division, and in the construction of the roadbed thereof made a cut about 25 feet in depth and about 200 feet in length at or near the residence of one Bates, in Green township, Hocking county, and through and under a public highway known as the Nickel Plate road in said county, which said public highway had been used by the general traveling public prior to said date and now is and ever since has been a public highway used by the general traveling public; that defendant or its predecessors in title caused a bridge to be constructed above, over and across said cut and the roadbed of said branch railway upon and in said Nickel Plate highway, which said highway is a county road, and that said bridge was constructed on said highway at or near the residence of said Bates aforesaid; that said bridge was and is about 52 feet in length and about 11 feet 7 inches in width; that the floor of said bridge is about 23 feet above the top of said branch railway; that the bridge, when constructed by said defendant or its predecessors, was, always has been and still is about 3 feet higher than said public highway originally was on both the east and west sides of the same; that beneath or under said bridge, extending about 50 feet in distance on the north side thereof and about 150 feet on the south side thereof from the center thereof, said cut or roadbed was made; that said bridge was constructed on four wooden frame bents, perpendicular in form; that said bridge was constructed on what is known as the skeleton plan and resembles in form three sides of an octagon; that there was placed upon both the north and south sides of said bridge a frail, weak and unsubstantial railing or banister about 52 feet in length; that about 17 feet in length of the west portion of said bridge was, and for many years prior to said date had been and now is, extremely and unreasonably steep and at a grade of more than ten per cent.; that the west grade or approach to said bridge is likewise extremely and unreasonably abrupt, narrow and steep and difficult of ascent; that on and prior to the 30th of July, 1911, said bridge was defectively constructed in the following particulars: The width thereof was narrower than the usual and ordinary bridge used in said county in the public highways thereof over public places of like character, and was by reason thereof dangerous and unsafe to the general traveling public in the use thereof; that on said day and for many years prior thereto the railing or banister upon or along the south side of said bridge was weak, wabbly, frail and unsubstantial throughout the entire length of said bridge; that the wood thereof was old, weatherworn, brittle and partially decayed and rotten; that one of the upright pieces of said railing or banister, located about 17 feet from the southwest corner of said bridge and upon the same and on the south side thereof, was attached by spikes, which had become loose by reason of age, long-continued use, the rotten and decayed condition of the railing or top thereof and by reason of the inferior quality of the timber from which it was made; that said upright, in being attached to the sill of said bridge, passed through a mortise made near the end of a large plank in the floor of the bridge before being attached to said sill, which mortise had decayed and rotted away; that said upright piece on said date and from the time of its attachment to said sill on the south side of said bridge had been reduced in size at the place of attachment so that it was only about 1 7/8 inches in thickness and was weak, frail, brash, weatherworn and doty; that said railing along the entire length of the south side of said bridge was not substantially braced and especially said upright piece was wholly unsubstantial and unsupported, nor was it braced in any manner; that said bridge on said day and for many years prior thereto had been out of repair, dangerous and unsafe for use to the traveling public, as aforesaid, of which the defendant had full knowledge, or ought to have known by the use of ordinary care; that the construction and maintenance of said bridge cost greatly in excess of $ 50; that on said day the plaintiff, in company with his wife, decedent, and their two children, was driving along said Nickel Plate highway in a two-seated, one-horse surrey, in an easterly direction, in a lawful manner towards said bridge and on the same, and without fault upon the part of either of them, and without neglecting any duty and being wholly ignorant of the defective condition of said bridge and banister, said horse, while drawing said conveyance with its occupants over said approach to said bridge and upon and over said bridge, suddenly fell upon said bridge and against said banister, on the south side thereof, at a point about 17 feet east of the southwest corner of said bridge, and that by reason of said defects, as aforesaid -- the negligence and carelessness of the defendant in constructing and maintaining said bridge and banister, its failure to keep said bridge in repair, the steepness and abruptness of the said west portion of said bridge and the approach thereto, the narrowness of said bridge and the frailty and weakness of said banister and upright piece -- said banister gave way, broke down and precipitated said horse, vehicle and occupants to the ground and said branch railway below, a distance of about 25 feet, inflicting injuries upon the decedent from which she died. Plaintiff claimed damages in the sum of $ 10,000.
A demurrer filed by the defendant to the above second amended petition was overruled by the court.
The defendant in its answer to the second amended petition, after admitting the qualification of the plaintiff and the allegations as to the beneficiaries, admitted the incorporation of the defendant and its ownership and operation of the roads as alleged, the making of the cut on the Nickel Plate highway, that said highway has been used by the general public as averred, the construction of the bridge at the point and of the dimensions stated; that it cost more than $ 50; that on July 30, 1911, the plaintiff with his wife and children was traveling over said highway in a two-horse surrey in a lawful manner towards and upon said bridge; that the horse fell upon said bridge and against the banister on the south side thereof at a point about 17 feet east of the southwest corner of said bridge; that said banister was broken; that said horse, vehicle and occupants fell to the ground upon said branch railway below said bridge; that as a result of injuries received thereby the decedent died, and the defendant denied all the other allegations of the second amended petition.
For a second defense the answer averred that at and long prior to the said 30th of July, 1911, it exercised ordinary and proper care to keep said bridge and the railings or banisters along the sides thereof in a safe, suitable and proper condition for all usual and ordinary modes of travel and for transportation of persons, vehicles and property over said bridge; that the plaintiff and said decedent were then, and for a long time prior thereto had been, familiar with said bridge and the construction and design thereof and the approaches thereto; that on said date the horse referred to, weighing about 1,200 pounds, driven by said parties, as he was pulling said wagon up to and on said bridge, became choked because of the fact that said parties had put on him a collar which was too small and that solely by reason of the aforesaid, as said horse was ascending the grade towards said bridge and when he was upon the same, he staggered and fell with great force, throwing his entire weight upon and against the railing on the south side of said bridge; that said railing was not intended to be subjected to such an unusual and extraordinary burden or weight, as said plaintiff and his wife well knew; that solely by reason of the aforesaid the railing was broken; that the accident mentioned in the plaintiff's second amended petition and the injuries therein described resulted proximately from and solely because of the aforesaid; that at said time said railing on said bridge was of good repair and sufficiently strong to withstand all ordinary and usual and proper uses for which it was intended; that the design of said bridge was proper and correct and one generally approved and followed.
The plaintiff thereafter filed an amendment to the second amended petition, in which it is alleged that at and prior to the date of the building of the bridge referred to, said highway was in good repair and was 30 feet wide and safe for the public to travel over and upon the same with their horses and carriages without injury to themselves or their property; that ever since said date the defendant and its predecessors in title failed, refused and neglected to restore said highway to a safe and efficient highway, have failed and neglected to maintain said bridge in such a condition as to render it a safe and proper highway as required by law and have greatly impaired the usefulness of said highway at such point, and prayed as in his petition.
The answer of the defendant to this amendment was a general denial.
A reply containing a general denial to the new matter in the answers having been filed, the case was tried to a jury, which returned a verdict in favor of the plaintiff. From the judgment entered upon this verdict error was prosecuted to the court of appeals, by which it was affirmed.
This proceeding is brought to reverse the judgments of the courts below.
1. Where two causes combine to produce an injury to an occupant of a vehicle passing over a bridge in a public road, both of which are in their nature proximate, the one being a culpable defect in the bridge and the other an occurrence as to which neither party was at fault, those whose duty it was to maintain the bridge in a reasonably safe condition will be liable to the injured person.
2. About thirty years prior to the injury complained of the defendant railroad company or its predecessor in title made a cut in, under and through a public highway and erected a bridge therein over the cut and over its railroad; the company thereafter and until the date of the injury maintained the bridge: Held, Under the state of facts, it was the duty of the company to make every reasonable provision for the safety of the public in the construction and maintenance of the bridge. To this end it was its duty to erect and maintain reasonably substantial guardrails on the bridge to serve as a protection to life and property.
3. It is proper for a court to send the pleadings in a cause to the jury during its deliberations, but the pleading of a party is not admissible in evidence on the trial to prove its allegations. A pleading of one party may be introduced by his adversary to prove admissions or to impeach statements made on the trial.
This was a proceeding brought by the defendant in error against the railway company to recover damages for wrongfully causing the death of plaintiff's decedent.
The second amended petition, after alleging the qualification of the plaintiff and the incorporation and purposes of the defendant, avers that the defendant owns and operates a railroad running from Toledo to Athens, Ohio; that it also owns and operates a branch, known as The River Division Branch, extending southeasterly to Pomeroy, Ohio; that it or its predecessors in title built and constructed said river division, and in the construction of the roadbed thereof made a cut about 25 feet in depth and about 200 feet in length at or near the residence of one Bates, in Green township, Hocking county, and through and under a public highway known as the Nickel Plate road in said county, which said public highway had been used by the general traveling public prior to said date and now is and ever since has been a public highway used by the general traveling public; that defendant or its predecessors in title caused a bridge to be constructed above, over and across said cut and the roadbed of said branch railway upon and in said Nickel Plate highway, which said highway is a county road, and that said bridge was constructed on said highway at or near the residence of said Bates aforesaid; that said bridge was and is about 52 feet in length and about 11 feet 7 inches in width; that the floor of said bridge is about 23 feet above the top of said branch railway; that the bridge, when constructed by said defendant or its predecessors, was, always has been and still is about 3 feet higher than said public highway originally was on both the east and west sides of the same; that beneath or under said bridge, extending about 50 feet in distance on the north side thereof and about 150 feet on the south side thereof from the center thereof, said cut or roadbed was made; that said bridge was constructed on four wooden frame bents, perpendicular in form; that said bridge was constructed on what is known as the skeleton plan and resembles in form three sides of an octagon; that there was placed upon both the north and south sides of said bridge a frail, weak and unsubstantial railing or banister about 52 feet in length; that about 17 feet in length of the west portion of said bridge was, and for many years prior to said date had been and now is, extremely and unreasonably steep and at a grade of more than ten per cent.; that the west grade or approach to said bridge is likewise extremely and unreasonably abrupt, narrow and steep and difficult of ascent; that on and prior to the 30th of July, 1911, said bridge was defectively constructed in the following particulars: The width thereof was narrower than the usual and ordinary bridge used in said county in the public highways thereof over public places of like character, and was by reason thereof dangerous and unsafe to the general traveling public in the use thereof; that on said day and for many years prior thereto the railing or banister upon or along the south side of said bridge was weak, wabbly, frail and unsubstantial throughout the entire length of said bridge; that the wood thereof was old, weatherworn, brittle and partially decayed and rotten; that one of the upright pieces of said railing or banister, located about 17 feet from the southwest corner of said bridge and upon the same and on the south side thereof, was attached by spikes, which had become loose by reason of age, long-continued use, the rotten and decayed condition of the railing or top thereof and by reason of the inferior quality of the timber from which it was made; that said upright, in being attached to the sill of said bridge, passed through a mortise made near the end of a large plank in the floor of the bridge before being attached to said sill, which mortise had decayed and rotted away; that said upright piece on said date and from the time of its attachment to said sill on the south side of said bridge had been reduced in size at the place of attachment so that it was only about 1 7/8 inches in thickness and was weak, frail, brash, weatherworn and doty; that said railing along the entire length of the south side of said bridge was not substantially braced and especially said upright piece was wholly unsubstantial and unsupported, nor was it braced in any manner; that said bridge on said day and for many years prior thereto had been out of repair, dangerous and unsafe for use to the traveling public, as aforesaid, of which the defendant had full knowledge, or ought to have known by the use of ordinary care; that the construction and maintenance of said bridge cost greatly in excess of $ 50; that on said day the plaintiff, in company with his wife, decedent, and their two children, was driving along said Nickel Plate highway in a two-seated, one-horse surrey, in an easterly direction, in a lawful manner towards said bridge and on the same, and without fault upon the part of either of them, and without neglecting any duty and being wholly ignorant of the defective condition of said bridge and banister, said horse, while drawing said conveyance with its occupants over said approach to said bridge and upon and over said bridge, suddenly fell upon said bridge and against said banister, on the south side thereof, at a point about 17 feet east of the southwest corner of said bridge, and that by reason of said defects, as aforesaid -- the negligence and carelessness of the defendant in constructing and maintaining said bridge and banister, its failure to keep said bridge in repair, the steepness and abruptness of the said west portion of said bridge and the approach thereto, the narrowness of said bridge and the frailty and weakness of said banister and upright piece -- said banister gave way, broke down and precipitated said horse, vehicle and occupants to the ground and said branch railway below, a distance of about 25 feet, inflicting injuries upon the decedent from which she died. Plaintiff claimed damages in the sum of $ 10,000.
A demurrer filed by the defendant to the above second amended petition was overruled by the court.
The defendant in its answer to the second amended petition, after admitting the qualification of the plaintiff and the allegations as to the beneficiaries, admitted the incorporation of the defendant and its ownership and operation of the roads as alleged, the making of the cut on the Nickel Plate highway, that said highway has been used by the general public as averred, the construction of the bridge at the point and of the dimensions stated; that it cost more than $ 50; that on July 30, 1911, the plaintiff with his wife and children was traveling over said highway in a two-horse surrey in a lawful manner towards and upon said bridge; that the horse fell upon said bridge and against the banister on the south side thereof at a point about 17 feet east of the southwest corner of said bridge; that said banister was broken; that said horse, vehicle and occupants fell to the ground upon said branch railway below said bridge; that as a result of injuries received thereby the decedent died, and the defendant denied all the other allegations of the second amended petition.
For a second defense the answer averred that at and long prior to the said 30th of July, 1911, it exercised ordinary and proper care to keep said bridge and the railings or banisters along the sides thereof in a safe, suitable and proper condition for all usual and ordinary modes of travel and for transportation of persons, vehicles and property over said bridge; that the plaintiff and said decedent were then, and for a long time prior thereto had been, familiar with said bridge and the construction and design thereof and the approaches thereto; that on said date the horse referred to, weighing about 1,200 pounds, driven by said parties, as he was pulling said wagon up to and on said bridge, became choked because of the fact that said parties had put on him a collar which was too small and that solely by reason of the aforesaid, as said horse was ascending the grade towards said bridge and when he was upon the same, he staggered and fell with great force, throwing his entire weight upon and against the railing on the south side of said bridge; that said railing was not intended to be subjected to such an unusual and extraordinary burden or weight, as said plaintiff and his wife well knew; that solely by reason of the aforesaid the railing was broken; that the accident mentioned in the plaintiff's second amended petition and the injuries therein described resulted proximately from and solely because of the aforesaid; that at said time said railing on said bridge was of good repair and sufficiently strong to withstand all ordinary and usual and proper uses for which it was intended; that the design of said bridge was proper and correct and one generally approved and followed.
The plaintiff thereafter filed an amendment to the second amended petition, in which it is alleged that at and prior to the date of the building of the bridge referred to, said highway was in good repair and was 30 feet wide and safe for the public to travel over and upon the same with their horses and carriages without injury to themselves or their property; that ever since said date the defendant and its predecessors in title failed, refused and neglected to restore said highway to a safe and efficient highway, have failed and neglected to maintain said bridge in such a condition as to render it a safe and proper highway as required by law and have greatly impaired the usefulness of said highway at such point, and prayed as in his petition.
The answer of the defendant to this amendment was a general denial.
A reply containing a general denial to the new matter in the answers having been filed, the case was tried to a jury, which returned a verdict in favor of the plaintiff. From the judgment entered upon this verdict error was prosecuted to the court of appeals, by which it was affirmed.
This proceeding is brought to reverse the judgments of the courts below.
Counsel: Messrs. Wilson & Rector; Mr. C. V. Wright and Mr. F. C. Amos, for plaintiff in error. Mr. Edwin D. Ricketts and Mr. John C. Pettit, for defendant in error. Judges:JOHNSON, J. NICHOLS, C. J., WANAMAKER and MATTHIAS, JJ., concur. JONES, J., not participating, having sat in the court below. Opinion by:JOHNSON
The first ground upon which the judgment is attacked is that the demurrer to the second amended petition should have been sustained. It will be observed that the averments of this pleading show that the cut in the public road was made and the bridge constructed by the railroad company about thirty years prior to the date of the accident. The bridge was erected long prior to the passage of the statutes regulating the construction of railroads across highways, above or below grade, and providing for the rights and duties of the company with reference to them. During this period the company and its predecessor maintained the bridge.
Plaintiff in error urges that the case of Comrs. of Hardin County v. Coffman, Admx., 60 Ohio St., 527, declares the principle which should control here. In that case it is held that the commissioners are bound to the exercise of ordinary care to keep the bridges under their control in a safe condition for all usual and ordinary modes of travel and transportation of property over them; but that ordinary care does not require them to anticipate that a bridge will be used in an unusual and extraordinary manner, or be subjected to an unusual or extraordinary burden involving peculiar danger, nor are they liable for an injury resulting from such use. In the case referred to the bridge was broken down by a traction engine which was propelled over it by steam and which was drawing a water tank upon which the deceased was riding. It was held that the use was unusual and not such as the commissioners were required to anticipate. In this case the allegations of the pleading in question are to the effect that the plaintiff and his family were traveling in the usual and ordinary mode and that the accident happened by reason of the defects in the structure, which are specifically set forth. We cannot agree with the contention that the petition shows that the coming in contact by the horse with the banister was so unusual or extraordinary as not to be anticipated.
When the defendant company, or its predecessor, found that it was necessary and, therefore, determined to construct a bridge over the cut which it made in and under the Nickel Plate road, as averred in the amended petition, and undertook to maintain it, it was its duty to erect a bridge and approaches which were reasonably safe for the transportation of persons and vehicles over them and to keep them in a safe condition for all the usual and ordinary modes of travel. It being alleged that these duties were not complied with and that the injury to plaintiff's decedent was caused by the failure of the defendant in that behalf, it follows that the demurrer to that pleading was properly overruled.
It is also contended by the plaintiff in error that the trial court erred in overruling its motion at the conclusion of the plaintiff's evidence, and at the conclusion of all of the evidence, to direct a verdict in its favor. It is argued in support of this contention that even if it were shown by the weight of the evidence that the defects in the bridge and the banister existed as alleged, still sufficient appeared from the testimony to show that these defects were not the proximate cause of the injury, but that the fall of the horse was such cause. It is said that if Helber's horse had not fallen against the banister the injury would not have occurred.
Authorities are cited in the briefs of counsel on the familiar question as to what constitutes proximate cause. There is no substantial difference between them, and it may be said generally that the proximate cause of a result is that which in a natural and continued sequence produces the result and without which it would not have happened. The fact that some other cause operated with the negligence of a defendant in producing an injury does not relieve him from liability, where such other cause would not have produced the injury but for the defendant's negligence. The court in its charge fairly gave to the jury the rule which should govern them in the disposition of that question.
The issues of fact were determined by the jury whose finding has been affirmed by the courts below. It is sufficient here to say that there was substantial testimony tending to show that the banister was weak, rotten and wabbly, and had been for several years; that the railroad company had been requested to put in new guardrails; that the horse was properly hitched, carefully driven and sure-footed. The testimony of Mr. Helber was that "not much of the weight of the horse hit the banister" at the time it gave way and by reason of which the deceased lost her life.
It is contended by the plaintiff in error substantially that the railing or banister of a bridge is constructed as a guide and reasonable protection to prevent one traveling over the bridge from driving off the sides. We think that the duty of the railroad company in the circumstances of this case is not so limited. The company had, on its own initiative, erected and maintained this bridge as a substitute for a safe and convenient wagon road which had been previously provided for the public use. When it did so, it was under the obligation to make every reasonable provision for the safety of the public. To this end, it would seem to be clear that, when the defendant erected the bridge in question, under the circumstances set forth, it was its duty to erect and maintain substantial rails or banisters thereon, and if the injury resulted from a defective banister this was the proximate cause notwithstanding the fact that there may have been some preliminary stumbling of the horse, by reason of which he came in contact with the defective banister, provided the jury believed that such contact was of the character and occurred in the manner described by plaintiff and that plaintiff's decedent was without fault.
In Walrod v. Webster County, 110 Ia., 349, the plaintiff was thrown from a bridge and injured. Railings were erected on both sides of the approach, which, in consequence of neglect and the action of the elements, were out of repair and insecure. One of the horses became frightened at a flash of lightning, settled back in the harness and was pushed by the other horse against the defective railing, which gave way. It was held that an instruction that if the accident would not have happened if there had been a proper railing on the bridge, then the defective railing was the proximate cause of the injury, but that if the accident would have happened had the railing been sufficient, then the railing was not the proximate cause of the injury, and plaintiff could not recover, was proper. The court say: "Or as stated in Gould v. Schermer, 101 Iowa, 582: 'The mere fact that some other cause operates with the negligence of the defendant to produce the injury does not relieve the defendant from liability. His original wrong concurring with some other cause, and both operating proximately at the same time in producing the injury, makes him liable, whether the other cause was one for which the defendant was responsible or not.'" Among the authorities sustaining this rule are Hey v. Philadelphia, 81 Pa., 44, 50; Ring v. City of Cohoes, 77 N. Y., 83; Simons v. Tp. of Casco, 105 Mich., 588; and Palmer v. Andover, 2 Cush., 600.
In Faulk v. Iowa County, 103 Ia., 442, it is said: "While the corporation should not be held responsible for the failure to provide a railing which would successfully withstand all pressure which could be applied by such means, yet it may well be held liable for the failure to provide against the pressure which the jury may rightly have found was applied in this case. In other words, the occurrence in question was not of such an unusual character that it was not the duty of the defendant to provide against it."
In Hendry v. North Hampton, 72 N. H., 351, 353, it is said: "The contention of the defendants, that because the hole in the road gave to the plaintiff the impetus which carried her over the unrailed and dangerous embankment, therefore the hole -- not the unrailed embankment -- was as a matter of law the cause of her injury, is best answered by the authorities, which are so conclusive against the defendant's contention, at least in this jurisdiction, that to enter upon a discussion of the question would be a work of supererogation."
In Ivory v. Town of Deerpark, 116 N. Y., 476, the cause of the plaintiff's complaint was that the defendant failed to provide any barrier along the highway at the place of the accident for the protection of travel. The defendant claimed that the absence of the barrier was not the proximate cause of the injury and that this cause was that the horses were beyond the control of the plaintiff. The court held that there was no error in the refusal of the court to charge that unless the jury could say from the evidence that the accident would have occurred had the horses been going at an ordinary rate of speed or were under control, the defendant was entitled to a verdict, while in case the horses were beyond the control of the plaintiff such fact may have been the proximate cause of the injury, it did not, provided the plaintiff was free from fault, relieve the defendant from liability for the injury to the plaintiff as a consequent result from the negligence of the defendant. In that case there would be two proximate causes of the accident and the responsibility would rest with the defendant if one of such causes was attributable to the fault of the commissioners.
It is further urged by plaintiff in error that the trial court erred in permitting the introduction of the second amended petition and the amendment thereto in evidence. Plaintiff's counsel, having read to the jury a stipulation by the parties as to what certain witnesses would testify to with reference to the condition of the roadway at the point of the accident, to the competency of which defendant's counsel objected, also offered in evidence the pleadings referred to. This was permitted over the objection of defendant's counsel. The pleading of a party in a cause is not admissible in evidence to prove its allegations. The correctness of this proposition would seem to be so manifest as to render the citation of authorities wholly unnecessary. Courts have, however, been called upon to announce it. Green v. Morse et al., 57 Nebr., 391, 77 N. W. Rep., 925; Bell v. Throop et al., 140 Pa., 641. Of course, in a proper case a pleading of one party may be introduced by his adversary to prove admissions made by him or as impeaching statements made by him. The pleadings referred to were, as is usually and properly done, sent to the jury in their consultation room. The court in its charge used the following language: "These pleadings of the parties, that is, the second amended petition and the amendment thereto, the answers of the defendant and the reply of the plaintiff to the second defense therein will be before you in the jury room and you may examine them, but except as to the admissions contained therein, to which I have heretofore called your attention, and except as to the allegations therein referred to in the stipulation of counsel as to what certain witnesses would testify to if present in court testifying, they are not evidence in this case and you must not so consider them." While we regard the introduction of these papers in evidence as clearly erroneous, yet in view of the state of the record as above shown and also of the state of the proof as to all the material issues in the case, we do not find that their admission was prejudicial.
Plaintiff in error also complains that the trial court charged the jury that "at least three-fourths or nine of your number must agree before you can render a verdict." The court evidently entertained the view that Section 11455, General Code, as amended February 6, 1913, effective May 14, 1913, which was passed pursuant to Section 5 of Article I of the Constitution, as amended September 3, 1912, applied at the time of the trial, which was after the statute referred to became effective. The action was begun, however, on January 23, 1912. It was decided in Elder et al. v. Shoffstall, 90 Ohio St., 265, that the amendment referred to does not apply to causes pending in the courts of common pleas on the 13th of May, 1913. The direction of the court was, therefore, erroneous.
The verdict of the jury, after finding the issues in favor of the plaintiff and assessing the amount due, contained the following: "And we do so render our verdict upon the concurrence of twelve members of our said jury, that being three-fourths or more of our number. Each of us said jurors concurring in said verdict signs his name hereto this twenty-first day of May, 1913." It is, therefore, clear that the erroneous instruction of the court with reference to the matter did not work any prejudice to the rights of the defendant. The presumption is that as each juror signed and joined in the verdict he did so because it expressed his judgment, acting under his oath.
We have carefully considered the other assignments of error and we do not find any prejudicial error in the record. The judgment will, therefore, be affirmed.
Judgment affirmed.