#### Gibbs *v.*The Scioto Valley Ry. & Power Co.

*Charge to jury*— Substance *of special request refused, embraced in charge given*— Contributory *negligence in issue,*when— *Error proceedings*— Unnecessary *to include exception to reversal in journal entry.*

(No. 18495

Decided December 16, 1924.)

Error to the Court of Appeals of Fairfield county.

. Gibbs, the plaintiff in error, brought an action against the railway company, seeking to recover damages sustained by him in a collision between a motor. car and a trolley car operated by the company. At the time of the collision Gibbs was a passenger in the motor car, which was being driven by one Elmer Rutter. The petition contains allegations of various acts of negligence upon the part of the railway company.

The answer consists, in the main, of denials of negligence, but avers that the injuries sustained by the plaintiff “were caused wholly and solely through his own negligence and fault and that of said Elmer Rutter,” driver of the motor car. This allegation of negligence is denied by plaintiff in his reply.

A general verdict was returned in favor of plaintiff below. Judgment on the verdict was reversed by the Court of Appeals, which, in its entry, found affirmatively that no error existed in the record save that of refusing to give to the jury, before argument, special request No. 1, asked *499for by the defendant. Special request No. 1 is as follows:

“The jury is instructed that, if the negligence of the plaintiff directly contributed to the injury of which he complains, he cannot recover from the defendant, although the defendant may- have been negligent.”

Defendant’s counsel had asked for ten special requests, four of which were given and six refused. Among the four given was special request No. 8, to wit:

“Even though the collision of the automobile in which plaintiff was riding and the car of the defendant was caused by any one or more of the acts of negligence against defendant mentioned in the amended petition, plaintiff cannot recover if his own negligent act or omission directly contributed to the injuries sustained by him.”

Error is now prosecuted to this court, wherein it is sought to reverse the judgment of the Court of Appeals and to affirm that of the court of common pleas.

*Mr. E. N. Huggins; Mr. G. L. Gorkwell,*and *Mr. Timothy 8. Hogan,*for plaintiff in error.

*Mr. M. A. Daugherty,*and *Mr. Oscar W. Newman,*for defendant in error.

By the Court.

An inspection of the two special requests, one of which was given and the other refused, discloses that the substance of the special request refused was substantially embodied in the one given at the instance of counsel for the defendant. Both of these requests were so framed *500that notwithstanding negligence upon the part of the railway company plaintiff could not recover if Ms own negligence contributed to the injury. That no prejudicial error intervened upon that subject was held in *Limbaugh*v. *Western Ohio Rd. Co.,*94 Ohio St., 12, 113 N. E., 687.

The answer of the railway company, although it contained a general denial, discloses that it pleaded that the injuries sustained were caused wholly by the negligence of the plaintiff and the driver of the car. This was the exact situation developed by the pleadings in *Rayland Coal Co.*v. *McFadden, Adm’r.,*90 Ohio St., 183, 107 N. E., 330. The evidence introduced supports the claim that the jury might find that the defendant and plaintiff were both negligent. In such case it becomes the duty of the court to charge upon the issue of contributory negligence raised by the evidence.

In its general charge to the jury the court said:

> “The defendant, in his cross-petition, raises a claim of contributory negligence on the part of the plaintiff.”

We are unable to find any prejudicial error in this statement. While the court may have been inaccurate in calling the answer a cross-petition, and in stating that it raised the issue of contributory negligence, there could be no prejudicial error intervening for the reason that such an issue not only was raised by the pleadings but was presented to the court by counsel for the railway company in the requests asked, upon the theory that that issue was in the case under the holding of the *McFadden case, supra.*

In the Court of. Appeals counsel for Gibbs ex*501cepted to the entry of reversal and remand. Such exception was sufficient upon which to base a review in this court. However, it seems an exception to a reversal of a judgment recovered in the common pleas court is not necessary to be carried into the journal entry. *Commercial Bank of Cincinnati*v. *Buckingham,*12 Ohio St., 402; *Justice*v. *Lowe,*26 Ohio St., 372.

The judgment of the Court of Appeals is reversed and that of the common pleas affirmed.

*Judgment reversed.*

Marshall, C. J., Robinson, Jones, Matthias, Day, Allen and Conn, JJ., concur.