Opinion
No. 20444
Decided February 10, 1947.
Negligence — Injury sustained when falling on unlighted, obstructed, apartment house stairway — Charge to jury erroneous, when — Injecting issue not raised by pleading or evidence — Permitting defendant to emphasize its eleemosynary character erroneous, when.
1. In a negligence action to recover for personal injuries sustained when falling on an apartment house stairway, alleged to be unlighted and obstructed, it is prejudicial error for the court to instruct the jury in his general charge that "if you find" the plaintiff "tripped over a high heel * * * she could not recover at your hands," where there is no evidence that the plaintiff was wearing high heel shoes at the time of the accident.
2. In such action, it is likewise prejudicial error for the court to permit one of the defendants, a charitable corporation, to develop in detail its eleemosynary objects and purposes, the ownership and operation of the apartment house not being a charitable activity.
APPEAL: Court of Appeals for Cuyahoga county.
Mr. Harry J. Dworkin and Miss Elsie R. Tarcai, for appellant.
Messrs. Duncan Thomas, for appellees.
This is an appeal on questions of law from a judgment of the Court of Common Pleas, wherein a verdict and judgment were rendered in favor of the defendants in a personal injury action, predicated upon the alleged negligence of the defendants in permitting a stairway in an apartment house to remain unlighted after dark and in obstructing the landing thereof by a garbage can over which the plaintiff claims to have fallen and to have suffered certain injuries as a result thereof.
During the course of the general charge to the jury the court instructed the jury as follows:
"* * * If you find that the plaintiff was not in the exercise of ordinary care for her own safety if you find that she tripped over a high heel or some other cause, or due to her own inadvertence or negligence, she could not recover at your hands." (Italics ours.)
There is no evidence that the plaintiff was wearing high heel shoes. Therefore that charge was prejudicially erroneous. It is settled that it is prejudicial and reversible error to inject into a case issues not raised by the pleadings or evidence.
See 2 Ohio Jurisprudence, 952, Appeal and Error, Section 774:
"Injecting New Issues Into Case. — It is clearly reversible error for the court in its instructions to inject into the case issues and questions not raised by the pleadings or the evidence, if they have a tendency to confuse the questions properly in the case and to mislead the jury to the prejudice of the plaintiff in error. This rule has found frequent application in negligence actions where the court has brought into its charge elements of negligence which were not alleged in the pleadings or shown by the evidence."
See, also, Langabaugh v. Anderson, 68 Ohio St. 131, 67 N.E. 286, 62 L.R.A., 948; Wuest v. B. O.S.W. Rd. Co., 5 C.C. (N.S.), 619, 17 C.D., 365; 2 Ohio Jurisprudence, 960, Appeal and Error, Section 778; L.S. M.S. Ry. Co. v. Reynolds, 21 C.C., 402, 11 C.D., 701; Cincinnati, G. P. Rd. Co. v. Burkhardt, 10 C.C. (N.S.), 543, 20 C.D., 699, affirmed, Burkhardt v. Cincinnati, G. P. Rd. Co., 82 Ohio St. 463, 92 N.E. 1110; Helton v. Northern Amusement Co., 62 Ohio App. 470, 24 N.E.2d 713; Cincinnati Traction Co. v. Forrest, 73 Ohio St. 1, 75 N.E. 818; Tarian v. City of Alliance, 66 Ohio App. 423, 32 N.E.2d 578; Weybright v. Fleming, 40 Ohio St. 52.
Another ground of error assigned is that during the course of the trial the court permitted the defendants, over objection, to develop in great detail and to a considerable extent, the charitable and eleemosynary objects and purposes of the defendant corporation. It is true that the defendant corporation in this case is a charitable organization. However, the ownership and operation of the apartment house in question is not a charitable activity. The emphasis placed upon the charitable character of the organization to the extent allowed by the court was likewise prejudicial, inasmuch as such evidence had a tendency to unduly favor the defendants in a matter which was not in issue. See 17 Ohio Jurisprudence, 166, Section 128; Thompson v. Kerr, 39 Ohio Law Abs., 113, 51 N.E.2d 742 (motion to certify overruled, May 26, 1943); City of Galion v. Lauer, 55 Ohio St. 392, 45 N.E. 1044.
For the reasons stated the judgment of the Court of Common Pleas is reversed and the cause is remanded for further proceedings according to law.
Judgment reversed.
SKEEL, P.J., and MORGAN, J., concur.