Bowlin v. Black & White Cab Co.

Citation36 O.O.2d 288,7 Ohio App.2d 133,219 N.E.2d 221
Parties, 36 O.O.2d 288 BOWLIN, Appellee, v. BLACK & WHITE CAB CO., Appellant; Spilis, Appellee (two cases).
Decision Date10 August 1966
CourtUnited States Court of Appeals (Ohio)

,W. V. Cruey, Toledo, for appellee Ida Bowlin.

Finn, Manahan & Pietrykowski, and H. William Bamman, Toledo, for appellant.

Charles J. Cole, Toledo, for appellee Florence M. Spilis.

SMITH, Presiding Judge.

This is an appeal on questions of law from a judgment of the Municipal Court of Toledo in favor of plaintiff-appellee against defendant-appellant, Black and White Cab Company, in the amount of $1,400, and judgment in favor of the other defendant-appellee, Florence M .spilis.

The case was submitted to the trial court without the intervention of a jury. At the conclusion of the trial, upon motion by the cab company, the trial court stated in writing separate findings of fact and conclusions of law, as follows:

'1. That the defendant, Black & White Cab Company, is a corporation, organized and existing under the laws of the state of Ohio, and at the time described in said petition was engaged in the operation of public taxicabs within the limits of the city of Toledo, Lucas County Ohio.

'2. That Adams Street was at the time described in said petition a duly dedicated public thoroughfare, running in a generally easterly-westerly direction in the city of Toledo, and that said street intersected at right angles with Erie Street, also a duly dedicated public thoroughfare, running in a generally northerly-southerly direction in said city.

'3. That on July 10, 1965, at about 1:30 p. m., plaintiff was a passenger in one of the taxicabs operated by the defendant, Black & White Cab Company, and that said taxicab was driven by Earl A. Young, an employee of said defendant, Black & White Cab Company, who at said time was acting within the scope of his employment.

'4. That at said time the above-described taxicab was proceeding in an easterly direction on Adams Street and entered the intersection of Erie Street and Adams Street, with a collision occurring between said taxicab and an automobile driven in a northerly direction on Erie Street by the Defendant, Florence M. Spilis.

'5. That a traffic signal controls the flow of traffic at said intersection but that the taxicab heretofore described entered said intersection against said signal.

'6. That the defendant, Black & White Cab Company, through the operation of said taxicab by its employee, Earl A. Young, was guilty of negligence.

'7. That as a direct and proximate result of the negligence as aforesaid the plaintiff sustained injuries and damages and by reason thereof is entitled to a judgment against said Black & White Cab Company in the amount of $1,400.00 and the costs herein.'

The allegations of the petition admitted by the separate answers of the defendants and the evidence in the record support the trial court's findings of fact paragraphs numbered 1, 2, 3, and 4 and that part of 5 'That a traffic signal controls the flow of traffic at said intersection * * *.'

The allegations of the petition setting forth plaintiff's injuries and damage in the amount of $2,000 were denied by the separate answers of the defendants for want of information and knowledge. The said answers of the defendants deny that the injuries and damage to the plaintiff were directly and proximately caused by the concurring negligence of both the defendants in the following respects: In failure to keep a lookout for each other as they entered the intersection; and in failing to take necessary action to avoid a collision occurring between a cab company taxicab and the automobile of defendant Spilis.

Plaintiff-appellant Ida Bowlin filed her notice of appeal on questions of law from the judgment in favor of the defendant-appellee Florence M. Spilis, and defendant-appellant also filed notice of appeal on the judgment against it, the cab company, in the amount of $1,400.

The plaintiff filed a brief in this court denominated 'Brief of Plaintiff-Appellee,' and in the argument and law, in response to the assignments of error of the defendant-appellant cab company, urges this court to affirm the judgment against the cab company and, inferentially, without specific assignments of error, suggests that judgment should also have been rendered against the defendant Spilis based on concurrent current negligence.

The assignments of error of the defendant-appellant cab company are directed to (1 and 2) and overruling of the trial court of its motion for judgment directed in its favor at the conclusion of plaintiff's case and the renewal of such motion at the conclusion of all the evidence; (3) that the conclusion of the trial court that the taxicab entered the intersection against the traffic light was contrary to and not supported by the evidence; and (4) that the judgment is contrary to law and not supported by the evidence, and (5) is excessive.

The errors assigned numbered 1 and 2 as to the overruling of the motion for judgment for the cab company at the close of plaintiff's case and again at the conclusion of the case are based upon the claim that the plaintiff-appellant is conclusively bound by her testimony to the extent that such testimony was of such a character as to defeat her right of recovery. Plaintiff-appellant testified that she was seated in the right side of the back seat of the taxicab; that it was her 'impression' that the traffic light was green when the taxicab entered the intersection; that it was her 'impression' that the other car ran the red light; that she could not answer the question as to why she was suing the cab company when she says the light was green for the cab company; but that on advise of her attorney suit was brought against the cab company and defendant Spilis, the driver of the other car.

The driver of the taxicab testified that he drove the taxicab of the defendant cab company into the intersection on a green arrow. The daughter of plaintiff, who was riding in the back seat of the taxicab with plaintiff, stated that the taxicab had the green light. She also stated that she does not drive a car; that she couldn's tell whether it was a full green light or an arrow; and that when she looked at the light the taxicab was in the middle of the intersection. The witness Avery testified that he saw a green arrow right after the collision of the taxicab and the car of the defendant Spilis, when he was standing 150 to 160 feet away.

The defendant Spilis, upon cross-examination, testified that she was driving in the center of Erie Street, a one-way street, with space for an automobile between her automobile and the right-hand curb; that she was following the light at all times as she was approaching the intersection of Erie Street with Adams Street, also a one-way street; that the traffic light had shown a signal for stop, caution, a straight-ahead arrow, and a double arrow signifying a right-hand turn and straight-ahead; that as she approached the intersection the light showed a double green arrow and was so signaling at the time of the collision between the taxicab and her automobile; and that when she noticed the taxicab approaching from her left she tried to stop but the taxicab struck her automobile on the left front fender and both automobiles were stopped in the intersection until the police arrived.

The witness Templen, sister of the defendant Spilis, stated she was riding in the car of defendant Spilis in the right front seat; that the traffic light for defendant Spilis was a green arrow pointed up and to the right as defendant Spilis entered the intersection, and after she saw the taxicab coming she looked up again and the light was still green; and that after defendant Spilis' car entered the intersection the driver of the taxicab picked up speed as he entered the intersection. The witness Schweinhagen testified that he was in his automobile behind the car of the defendant Spilis; that he saw the traffic light at the time the defendant Spilis entered the intersection, which was two green arrows; that he was stopped in the righthand lane facing the light on Erie Street; and that he recognized the defendant Spilis in the courtroom as the same person he saw at the accident.

It has been frequently held in general terms, or in effect, that a party is bound by his own testimony provided it is understandingly given. It is stated in 32A C.J.S. Evidence § 1040(3) p. 776.

'The extent to which a party is concluded by his own testimony adverse to his contentions in the litigation has been characterized as one of the most troublesome questions in the law of evidence. It has been impossible for the courts to formulate a general and uniform rule patterned for all cases and they frequently depart from the espoused rules where the result would otherwise offend their sense of justice.'

While there seems to be some contrariety of decisions in other jurisdictions, and the cases in Ohio have not settled the question involved in the case at bar, we are of the opinion that the rule applicable here is stated in 32A C.J.S. Evidence § 1040(3), p. 779, as follows:

'The rule that a party is concluded by his own testimony adverse to his contentions in the litigation is not to be extended by a strained construction of his testimony; nor is it the law that everything that a party says in the course of his testimony which is against his interest is to be taken as conclusively true. Thus a party is not concluded by his adverse testimony where it appears that he was honestly mistaken; a party does not testify at the peril of having every slip of his tongue taken as conclusively true if his inadvertently used words cause him to appear to have made a statement which is not true but is against his interest in the case. * * *'

And, on page 785, it is stated:

'According to one line of authorities, a party is not concluded by his own testimony where it is not in...

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