McFadden v. Galena Shale, Tile & Brick Co.

Per Curiam. Admittedly, the only grounds given by the Court of Appeals for its reversal were: 1. Error in failure to give two requested special instructions. 2. Error in sustaining defendant’s motion to elect at the end of plaintiff’s opening statement. Admittedly, the two requested special instructions relate only to the issue of plaintiff’s damages. There is no claim of error in submission of the issue of defendant Dove’s claimed negligence to the jury. There is nothing to indicate that the jury did not base its verdict for Dove on a finding that defendant was not negligent. Hence, any error in refusing to give the two special instructions could not have prejudiced plaintiff. If, as its verdict indicates, the jury found defendant not negligent, it would not even have reached the issue of damages. Furthermore, the jury verdict for the driver negatives the possibility of any prejudice to plaintiff in being required to elect whether to sue the driver or to sue his employer. If, as the jury found, the driver was not negligent, there could be no verdict against his employer. The judgment of the Court of Appeals is reversed and that of the Common Pleas Court affirmed. Judgment reversed. Tart, C. J., Zimmerman, Matthias, O’Neill, Herbert, White and Brown, J.J., concur. White, J., of the Eighth Appellate District, sitting for Schneider, J. __: