Wilfong v. Batdorf

• Decision Date: 03 August 1983
• Docket Number: Nos. 82-944,82-1091,s. 82-944
• Citation: 6 Ohio St.3d 100,6 OBR 162,451 N.E.2d 1185
• Parties: , 6 O.B.R. 162 WILFONG et al., Appellants, v. BATDORF et al., Appellees. DARDIO, Exr., Appellant, v. BALTIMORE & OHIO RR. CO. et al., Appellees.
• Court: Ohio Supreme Court

Page 100

6 Ohio St.3d 100

451 N.E.2d 1185, 6 O.B.R. 162

WILFONG et al., Appellants, v. BATDORF et al., Appellees.

DARDIO, Exr., Appellant, v. BALTIMORE & OHIO RR. CO. et al., Appellees.

Nos. 82-944, 82-1091.

Supreme Court of Ohio.

Aug. 3, 1983.

Syllabus by the Court

1. The mere failure of the driver of an overtaking vehicle to give a signal before passing a vehicle to be overtaken is not sufficient to render the driver guilty of contributory negligence as a matter of law.

2. Any signal which would be effective to alert the driver of a vehicle to be overtaken of the intent of the driver of the overtaking vehicle to pass is sufficient to meet the requirements of R.C. 4511.27(A).

3. The principle of comparative negligence, consistent with the provisions of R.C. 2315.19, applies to all negligence actions tried after June 20, 1980, irrespective when the cause of action arose, as part of the common law of Ohio. (Viers v. Dunlap, 1 Ohio St.3d 173, 438 N.E.2d 881, and Straub v. Voss, 1 Ohio St.3d 182, 438 N.E.2d 888, to the extent inconsistent herewith, overruled.)

The two cases involved herein concern the application of comparative negligence to causes of action which arose before the June 20, 1980 effective date of Ohio's Comparative Negligence Act, R.C. 2315.19, and are therefore being decided together.

In case No. 82-944, plaintiff-appellant, Cindy L. Wilfong, was travelling in a northerly direction on a two lane highway, Route 19, in Sandusky, Ohio, on August 22, 1978. She was following a truck being operated by defendant-appellee, David B. Batdorf. The truck was travelling below the posted speed limit and plaintiff decided to attempt to pass. After checking the southbound lane and finding it clear, she turned on her left signal indicator and proceeded to pull into the southbound lane to complete the passing maneuver. While in the southbound lane and having reached a point parallel to defendant's truck cab, it became apparent to the plaintiff that the defendant was moving into the southbound lane. Plaintiff testified she then sounded her horn. The defendant did not respond until the two vehicles came into contact with each other in the southbound lane. As a result of the contact plaintiff lost control of her automobile. When her vehicle left the highway it rolled over causing her to sustain injuries.

The basis of the plaintiff's action against the defendant and his employer was defendant's negligence in striking plaintiff's vehicle with his truck while she was attempting to pass him. After the presentation of the plaintiff's case, the trial court granted defendants' motion for a directed verdict, holding that contributory negligence barred recovery by the plaintiff as a matter of law. The court of appeals affirmed the trial court.

In case No. 82-1091, plaintiff-appellant's decedent, William H. Dardio, was struck and killed on February 3, 1978 by a locomotive being operated by the employees of the defendant-appellee, Baltimore & Ohio RR. Co. There was evidence in the record concerning the atmospheric conditions that morning as being very foggy with piles of previous snowfalls banked around the crossing and train tracks. The only witnesses to the accident were two employees of the defendant railroad, the engineer and the fireman. They both affirm that the signals required by statute ¹ at railroad crossings were given.

The trial court entered summary judgment for the defendants concluding that the plaintiff's decedent was contributorily negligent by entering the crossing grade after signals were given by the engineer. As a result of plaintiff's decedent's contributory negligence, the trial court ruled that the plaintiff was barred from any recovery. The court of appeals affirmed the grant of summary judgment.

Both cases, Nos. 82-944 and 82-1091, were disposed of by the trial courts based upon their conclusions that, as a matter of law, the plaintiff and plaintiff's decedent were contributorily negligent and that such contributory negligence barred their recovery. The courts of appeals affirmed, refusing to give retroactive application to R.C. 2315.19, the Comparative Negligence Act.

The causes are now before this court pursuant to the allowance of motions to certify the record.

Frank W. Cubbon, Jr. & Associates Co., L.P.A., Guy T. Barone and Stuart F. Cubbon, Toledo, for appellants in case No. 82-944.

Neipp & Wingart and Edward A. Van Gunten, Toledo, for appellees in case No. 82-944.

King, Hermon & Berry Co., L.P.A., James C. King, Lima, Weger, Jauert & Herman and Douglas S. Jauert, Wapakoneta, for appellant in case No. 82-1091.

Cory, Leonard, Witter & Cheney, Frank B. Cory, Lima Shumaker, Loop & Kendrick, Robert M. Anspach and Renee Birnbaum, Toledo, for appellees in case No. 82-1091.

CLIFFORD F. BROWN, Justice.

These cases can be divided into two distinct issues. The first is whether the failure to give an audible signal by plaintiff-appellant Cindy Wilfong before attempting a passing maneuver was negligence per se and the proximate cause of the ensuing accident. The second, an issue common to both cases, is whether the doctrine of comparative negligence should have been applied as the standard by which to judge the conduct of the plaintiff and plaintiff's decedent.

I

After argument by defendant Batdorf's counsel, concerning the failure of plaintiff Wilfong to give an audible signal before attempting to pass, the trial court concluded that her failure to signal in an effective manner before overtaking the truck was, as a matter of law, the proximate cause of the accident. However, the mere failure of a driver of an overtaking vehicle to give an audible signal before passing a vehicle to be overtaken is not sufficient evidence to render that driver guilty of contributory negligence as a matter of law. See Christian v. Cleveland Ry. Co. (1932), 13 Ohio Law Abs. 208, at 211; Galliher v. Campbell (1954), 69 Ohio Law Abs. 378, at 384, 125 N.E.2d 758.

R.C. 4511.27(A) requires the operator of a vehicle to " * * * signal to the vehicle or trackless trolley to be overtaken * * *." (Emphasis added.) There is no requirement for an audible signal in Subsection (A) of R.C. 4511.27. In contrast, Subsection (B) requires " * * * the operator of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle at the latter's audible signal * * *." These sections state separate requirements and the fact Subsection (A) does not mention an audible signal is significant.

The purpose of giving a signal before passing is to alert the vehicle being overtaken so that such vehicle will not move into the left lane where the overtaking vehicle is travelling. ² The requirement that such signal be audible is not set forth in R.C. 4511.27(A). Any signal which would be effective to alert a driver of a vehicle to be overtaken of the intention of an overtaking vehicle's driver to pass is sufficient to satisfy Subsection (A).

It is a question of fact whether the signal given by an overtaking vehicle's driver is sufficient. The use of a signal indicator and the moving of the overtaking automobile into the left lane could be construed as sufficient to fulfill the requirements of R.C. 4511.27(A) to an operator of an overtaken vehicle who is properly keeping a check on traffic in his rearview mirror. Whether such signal by plaintiff was sufficient in this case is an issue for determination by the trier of fact. Also, whether the use of an audible signal would have been effective in this situation, when plaintiff wished to signal to defendant to yield the right of way, is a question of fact in light of the testimony in the record indicating that the defendant may have been unable to hear the horn blast. ³

II

Contributory negligence has long been a bar to recovery by a plaintiff under the common law in Ohio. No matter what the degree of plaintiff's negligence, however slight, a plaintiff who was contributorily negligent could not recover damages. Tresise v. Ashdown (1928), 118 Ohio St. 307, 160 N.E. 898; McKinley v. Niederst (1928), 118 Ohio St. 334, 160 N.E. 850; Smith v. Lopa (1931), 123 Ohio St. 213, 174 N.E. 735.

The General Assembly acted to remove this unjust result when it adopted R.C. 2315.19. ⁴ This statute abrogates the old common-law bar of contributory negligence and substitutes a comparative negligence standard. Under the comparative negligence standard a plaintiff may recover for injuries which flow from the negligence of a defendant even if that plaintiff is himself negligent to a degree. The recovery by the plaintiff is adjusted by the degree of his contributory negligence to the incident. This statute became effective on June 20, 1980.

Whether R.C. 2315.19 is to be given retrospective or only prospective application was addressed by this court in Viers v. Dunlap (1982), 1 Ohio St.3d 173, 438 N.E.2d 881, and Straub v. Voss (1982), 1 Ohio St.3d 182, 438 N.E.2d 888, wherein it was concluded that R.C. 2315.19 should be applied only to causes of action arising after June 20, 1980. Today we reject those holdings and hereby overrule Viers v. Dunlap and Straub v. Voss, supra.

In a four to three decision, the court in Viers, at page 174, 438 N.E.2d 881, grounded its defense of prospective application on Section 28 of Article II of the Ohio Constitution, which states that "[t]he general assembly shall have no power to pass retroactive laws * * *," and the provision of R.C. 1.48 that: "[a] statute is presumed to be prospective in its operation unless expressly made retrospective."

However, when a statute affects procedural rights, as opposed to substantive rights, the constitutional restraints on retrospective application are lifted. Kilbreath v. Rudy (1968), 16 Ohio St.2d 70, 242 N.E.2d 658 ; Denicola v. Providence Hospital (1979), 57 Ohio St.2d 115, 387 N.E.2d 231 . A procedural or remedial statute should be applied to all actions which come to trial after the effective date of such st...