driver and passenger the overturned van were sitting on the guardrail further down the highway without their coats wearing only t shirts one with a broken mat and one with a fractured pelvis about ten minutes after the honor so i think that i think the i think one of the questions here is what what was your client doing at the time that he was hit what rescue activity was testimony that one of the defendants stated that my client's van came to a stop passed and then would have had to walk past them to get to the overture but the other  control has he admitted that he knew that there was a sign a war that the bridge could freeze before the roadway and there was no evidence whatsoever that he was not there for the verdict  i don't think so your honor because if the judge had instructed them on the rescue doctrine which was the fundamental foundation of our case was that a rescue doctor why the jury couldn't connect the negligence view of the proximate cause were choir meant from the original negligence in other words the rescue the rescue has to approximately cause the injury d to the rescuer but you still have to show as a threshold matter that the original defendant or that garza in this case was negligent so why would the rescue doctoring instruction have affected whether whether the jury was how the were helping in the the general public they were protecting the general public from the hazard which was created by this overturned van and that was also in the rescue doctrine which extends not just to the  negligent the remainder of the issues on appeal become academic what mr smith now would like this court to do would be to turn this if this jury issue this issue fact it would issue of law which is the exact same thing that y mr garza testified that he drove it five miles an hour less than the speed limit for the conditions that he perceived it wasn't i see how he got to the overpass and lost control of his vehicle would have been different and therefore kind of embedded in their new trial motion is this legal issue about whether this instruction century an instruction issue isn't it i mean they're allowed to they're allowed to argue somewhere would and i take it there would have been an another or additional special questions for the jury to answer in other words would quite but would question one have been the same words in other words but rescue doctrine does not protect somebody who is trying to rescue someone who was not negligent that's correct because there's no there is no argument to be made the person that was rescued is sure no compensation of the person injured trying to rescue them when they were negligent to begin with doesn't obviously doesn't help out a person like you gets injured trying to rescue them but the you know the legal theory is the there can be a very long sed chain of events for but poor causation and we can debate i suppose proximate cause ation but the rescue doctrine doesn't relieve the point of of having to prove  causation is that right that's correct this is because typically in that situation the brain of is easier because he's involved in trying to resolve the original situation by resting whoever was injured say in an automobile up the overpass with mr schwartz was the nadir when they as soon as he looked at the bay and there was nobody on it and they could have them point turned around and walked back down the hill but the testimony is that they stood around that day and for another ten testimony of mr whitaker i thought there was some dispute about that ten minutes that whitaker wasn't exactly sure when he was cross examined or whatever it was well he he he waffled on that  but it's not connected to anything well st of all i'm curious i don't i don't think the statute goes as far i mean it doesn't specifically prohibit using this evidence there's a statute that says that if it's  felony or something you can use that as a race issue to cut out but that doesn't necessarily prove the negative the cases in ohio seem pretty uniform that you can't use this kind of evidence but all of those cases apply generally across the board to all causes of action i mean most eerie questions were asking whether the substantive state law provides a rule of decision for this particular cause of action but the ohio cases on this jail time so if this were not in the ohio code but this was just ohio rule of evidence you know nine o seven or something and it was in their evidence so we wouldn't apply it right probably not i think you about ten minutes from time they arrived on the street nd way when they got to the hall to the overturned man they had to look in the van they had to see if anybody was hurt and then they started to look around here somebody else that he didn't know he got out remember he wasn't sure where his son was that although there was some initial tests that he thought his son when he went down the hill to talk to them and found the guys against the guard around  substantial protection to the guys that would testify the defendants and testify they were afraid somebody else was going to come along and they were felt that they were in great danger at the time my client was it so bad now  having turned on the lie that everything that happened after that was part of the rescue i mean again but why he stop your van you turn on the lights that rescuer that is over a the trial court ruling is a step backward in our civilization as just as hard as those stated in their way or versus international railway case dangers and bias rescue the trial court imply that we should just walk on by thank you thank you both for your argument and the case will be submitted and the clerk may arrange for calling the next