Thomas v. Heer

OPINION

By WASHBURN, PJ.

The answers of the defendants did not raise the issue of contributory negligence of plaintiff, and, so far as the record shows, no request was made that the court charge on that subject; and we can find no evidence in the record which reasonably tended to develop the issue of contributory negligence, so as to justify the court in charging thereon.

It is quite apparent that the jury may have been and probably was misled by the introduction into the charge of an issue not raised by the pleadings or evidence in the case, and that such error was prejudicial.

Cincinnati…