# Jones v. White Motor Corp.

> Ohio Court of Appeals · September 29, 1978 · 61 Ohio App. 2d 162

URL: https://www.frixlaw.com/law-library/cases/3704493

## Case

- **Full name:** Jones, Admx., Appellant, v. White Motor Corp. Et Al., Appellees
- **Court:** Ohio Court of Appeals
- **Decided:** September 29, 1978
- **Citations:** 61 Ohio App. 2d 162; 15 Ohio Op. 3d 292; 401 N.E.2d 223; 1978 Ohio App. LEXIS 7672
- **Precedential status:** Published
- **Opinion:** Concurrence by Brown
- **Judges:** Potter, Brown, Connors
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3704493

## Opinion text

Brown, J.,
concurring. I concur in the judgments and conclusions reached in the majority opinion. I further observe that this is a good case in which to conclude, or in which the Ohio Supreme Court should conclude, that the defense of contributory negligence should be eliminated as part of the substantive law of Ohio and that, in its place, the doctrine of comparative negligence should be substituted.
The defense of contributory negligence is law created by the judiciary and therefore can be eliminated by the judiciary. The first contributory negligence case was
Butterfield
v.
Forrester
(K.B. 1809), 103 Eng. Rpt. 926. The first American case recognizing the defense of contributory negligence was
Smith
v.
Smith
(Mass. 1824), 2 Pick. 621 . Prosser on Torts 416, Section 65 (4th ed. 1971), Note 1. For a comparison of early Ohio cases, see
Kerwhaker
v.
C. C. & C. R.R. Co.
(1854), 3 Ohio St. 172 , 178;
Mad River and L. E. R.R. Co.
v.
Barber
(1856), 5 Ohio St. 541, 563-564 ;
Timmons
v.
Central Ohio R.R. Co.
(1856), 6 Ohio St. 105 , 108-109 (citing Lord Ellenborough in
Butterfield
v.
Forrester, supra); Puterbaugh
v.
Reasor
(1859), 9 Ohio St. 484 , 489; and
B. & I. R.R. Co.
v.
Snyder
(1868), 18 Ohio St. 399, 409-410 .
*184
The opinion in the present case, representing the views of a unanimous court, reveals how difficult it is for any jury to apply the contributory negligence rule to the facts and to reconcile such defense with the issue of a defendant’s negligence.
With the elimination of contributory negligence as a defense, any facts now considered by the jury under the umbrella of contributory negligence could be considered as factors in determining the issues of the duty of a defendant, his negligence and the proximate result of any negligence.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3704493. Public record. Not legal advice.