Wilkeson v. Erskine & Son

• Citation: 61 N.E.2d 201,145 Ohio St. 218
• Decision Date: 09 May 1945
• Docket Number: 30193.
• Court: United States State Supreme Court of Ohio
• Parties: WILKESON v. ERSKINE & SON, Inc.

61 N.E.2d 201

145 Ohio St. 218

WILKESON v. ERSKINE & SON, Inc.

No. 30193.

Supreme Court of Ohio

May 9, 1945

Syllabus by the Court.

1. Where defendant's motion to direct a verdict in its favor made at the close of plaintiff's evidence is overruled and defendant thereafter proceeds to introduce evidence, any error in the overruling of such motion is thereby waived. Halkias v. Wilkoff Co., 141 Ohio St. 139, 47 N.E.2d 199, approved and followed.

2. Where a defendant, at the close of all the evidence, moves the court to direct a verdict in its favor, the plaintiff is entitled to have the evidence construed most strongly in his favor. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St. 469, 189 N.E. 246, approved and followed.

3. Where, on the trial of a cause, substantial evidence has been introduced from which it might reasonably be concluded that defendant was guilty of negligence which was the proximate cause of plaintiff's injury, the court may not sustain defendant's motion to direct a verdict. The test is not whether the trial judge would set aside a verdict in favor of plaintiff on the weight of the evidence. Id.

4. Where there is no defect in the statements contained in plaintiff's pleadings and there is substantial evidence from which a reasonable conclusion might be drawn that defendant was guilty of negligence proximately causing plaintiff's injury, a motion non obstante veredicto attacking a verdict in favor of plaintiff may not be sustained. The weight of the evidence is not involved upon such motion. Section 11601, General Code.

5. The evidence showed that defendant was in control of a dual-wheel, two-ton dump truck, length 17 feet, 6 inches overall, dump body 8 feet long and 7 feet wide, extending out beyond the rest of the truck; the bottom of the dump body was 43 inches above the pavement; no fender over the right rear wheel; no running board along dump body; and the driver's seat was on the left hand side of an enclosed cab.

Appeal from Court of Appeals, Mahoning County.

Plaintiff brought an action in the Court of Common Pleas of Mahoning county against defendant for causing the wrongful death of a pedestrian on a country road. Plaintiff alleged that on or about 11:30 o'clock a. m., May 29, 1942, plaintiff's decedent, a minor aged 16 years, was walking in a northerly direction on the eastern berm of a country road when a motor truck controlled by defendant likewise proceeding in a northerly direction on such road was caused to collide with plaintiff's decedent resulting in death of plaintiff's decedent.

The assignments of negligence will be noted in the opinion.

At the conclusion of plaintiff's evidence defendant made a motion that the court direct the jury to return a verdict for the defendant, which motion was overruled. Likewise, defendant's motion for a directed verdict was renewed at the conclusion of all the evidence and overruled. The jury returned a verdict in favor of plaintiff. Defendant thereupon moved the court for judgment in its favor non obstante veredicto, which motion was also overruled, and the trial court proceeded to enter judgment upon the verdict. Motion for new trial was overruled.

Upon appeal to the Court of Appeals of Mahoning county the judgment of the trial court was reversed by a divided court, on the grounds which will be stated in the opinion.

The cause is here following the allowance of a motion to certify the record.

Harrington, Huxley & Smith and J. P. Morgan, all of Youngstown, for appellant.

Robert J. Nicholson and Hermon N. George, both of Youngstown, for appellee.

TURNER Judge.

A majority of the Court of Appeals ordered a journal entry in this case in which it is stated that such majority 'find that in the record and proceedings thereof there is error manifest on the face of said record to the prejudice of the defendant-appellant in this, to wit:

'That the Court of Common Pleas of Mahoning county, Ohio, committed prejudicial error in overruling defendant-appellant's motion for judgment in its favor at the conclusion of plaintiff-appellee's evidence; in overruling the motion of the defendant-appellant for judgment in its favor at the conclusion of all the evidence; in overruling the motion of the defendant-appellant for judgment notwithstanding the verdict of the jury, which the court finds was timely interposed; the court further finds that there was no evidence in the record that the defendant-appellant was guilty of any negligence directly and proximately producing the death of plaintiff-appellee's decedent * * *.'

For convenience, we shall refer to the parties as plaintiff and defendant.

We may dispose of the first ground of error set out in the journal entry with the observation that inasmuch as the defendant in the trial court introduced evidence in defense it waived any error which there might have been in the trial court's ruling at the conclusion of plaintiff's evidence. Halkias v. Wilkoff Co., 141 Ohio St. 139, 47 N.E.2d 199. This principle was recognized by the Court of Appeals in the majority opinion, but nevertheless such ground of prejudicial error appears as sustained in the journal entry. As the sufficiency of the statements in the pleadings is not questioned, the other grounds of error may be summarized in the last stated ground, to wit: 'The court further finds that there was no evidence in the record that the defendant-appellant was guilty of any negligence directly and proximately producing the death of plaintiff-appellee's decedent.'

The evidence discloses that two high school boys of the approximate age of seventeen years were walking in a northerly direction along the berm of a country road with an eighteen-foot-wide hard surface. The time was eleven o'clock in the morning, on May 29, 1942. The day was 'a nice, clear, sunshiny day.' Except for these two boys and the truck hereinafter referred to, there was no traffic on this road. Traveling in the same (northerly) direction on this road was the two-ton dump truck with dual rear wheels. The overall length of the truck was seventeen feet, six inches. The dump body was eight feet long and seven feet wide, extending out beyond the rest of the truck. The bottom of the truck bed was forty-three inches above the ground. There was no fender over the right rear wheel. The exhibits show no running board back of the cab part of the truck. The driver sat on the left hand side of an enclosed cab. The front of the truck, so far as could be observed by the truck driver, passed decedent but he was run over by the right rear wheel which left marks on the paved section of the road.

A witness testified:

'Q. What do you say to the people of the jury as to whether that dump body extended out beyond the rest of the truck or not? A. Well, I would say that it extended out.'

The truck was loaded with seven and a half tons of gravel and was travelling at about eight miles per hour in extra low gear up a grade.

The driver of the truck testified:

'Q. Now, as you proceeded up this garde, in the direction of the Mayberry home, where were these boys with reference to the hard surface roadway? A. Right at the edge of the road.

'Q. Right at the edge of the road? A. They was off of the pavement.

'Q. All right, and walking along right off of the edge of the hard surface? A. That is right.

'Q. All right, are you able to tell us how they were walking, that is whether they were walking side by side, or apart, or how they were walking? A. Well, Mayberry was ahead of the Wilkeson boy. * * *

'Q. All right, and, as you approached them, I want you to tell the people on the jury whether you sounded any horn as you approached near to where they were walking: A. No.

'Q. Did you turn the course of your truck, in any way, so as to get farther over toward the middle of the road? A. No.

'Q. What do you say, Mr. Guerrier, as to whether your truck proceeded in a straight course as you came nearer to where these boys were walking and proceeded on and passed them? A. That is right.

'Q. Did you take a straight course? A. That is right. * * *

'Q. Just before you passed them by, I will ask you, if you noticed in which direction these boys were looking? A. Well, when I passed them or how do you mean?

'Q. Just as you were up there ready to pass them? A. Well, they were both looking ahead.

'Q. In other words, looking in the direction in which you were going, Mr. Guerrier, I will ask you whether that is right, there was anything, any obstruction on the road that prevented your truck from operating over more to the west, or toward the center of the road. A. No.

'Q. How far would you say the Mayberry boy was ahead of the Wilkeson boy? A. Well, about two or three feet. * * *

'Q. Now, as you came up the grade nearer to where these boys were walking along, did you notice either one of these boys doing anything in particular? A. Yes, the Wilkeson boy was kicking the grass. * * *

'Q. When you saw this Wilkeson boy doing this, did you give any warning of any kind of the approach of your truck? A. No.

'Q. How far back were you from these boys when you noticed this boy kind of going along kicking the grass, as you said, and that sort of thing? About how far back would you say you were from them when you noticed that? A. About seventy-five feet, or something like that. * * *

'Q. Where did you say the Wilkeson boy was walking from the hard surface of the road? A. Right at the edge of it.

'Q. All right. When you noticed the Wilkeson boy walking along the edge of the hard surface of the road, and you saw him, as you say, kind of kicking away at the grass, or something of that sort, did you continue to watch him do that as your truck got up to where they were? A. No.

'Q. Didn't you watch him any more? A. No, he was on...