Blair v. Goff-Kirby Co.

• Decision Date: 29 December 1976
• Docket Number: GOFF-KIRBY,No. 75-1149,75-1149
• Citation: 49 Ohio St.2d 5,358 N.E.2d 634,3 O.O.3d 4
• Parties: , 3 O.O.3d 4 BLAIR, Appellee, v.COMPANY, Appellant.
• Court: Ohio Supreme Court

Page 5

49 Ohio St.2d 5

358 N.E.2d 634, 3 O.O.3d 4

BLAIR, Appellee, v. GOFF-KIRBY COMPANY, Appellant.

No. 75-1149.

Supreme Court of Ohio.

Dec. 29, 1976.

Syllabus by the Court

Whether an object is discernible under a given set of circumstances is a question of fact, and, when reasonable minds could reach different conclusions from the evidence presented upon the question, a motion for a directed verdict upon that basis should be overruled.

Early in the morning of September 11, 1968, the appellee, Billy Blair, was driving a truck loaded with steel north on U.S. Route 23 at approximately 25 miles-per-hour with his lights on dim. Although it was a dark, misty, rainy night, he was familiar with the highway.

At that time, the appellant, Goff-Kirby Company, was repairing Route 23 under contract with the state of Ohio. Its repair work consisted of removing and replacing sections of the concrete highway. The construction company had marked its construction work in the right-hand lane by placing yellow barrels spaced 25 to 50 feet apart down the middle of the two-lane, north-bound strip of highway, and by posting a sign to travel in the left lane at the beginning of the construction area. Witnesses testified that only some barrels had working lights and that there were no barricades or lights marking individually removed sections of concrete in the right-hand lane.

The accident accurred just north of a break of about 150 feet in the line of barrels, and near an entrance ramp leading into the highway. Believing the break in the line of barrels to indicate a change in traffic lanes, Blair turned into the right-hand lane and was unable to stop before he drove into an unlighted, and otherwise unmarked, hole where a twelve-foot long, sixfoot wide, three-foot deep section of the highway had been removed.

At the close of appellee's evidence, the trial court directed a verdict for the appellant construction company on the grounds that 'upon the evidence' appellee 'was guilty of negligence as a matter of law, which negligence was the proximate cause of any damage sustained by him.' Concluding that 'reasonable minds could differ as to the discernibility of the hole,' the Court of Appeals for Scioto County reversed that judgment, one judge dissenting. The dissenting opinion distinguished the cases relied on by the majority on the grounds that the 'holes' found not to be discernible in those cases were 'different both in kind and character' from the hole at issue in this cause, because the latter consisted of an 'excavation' three-feet deep and 'extending six feet. * * *'

The cause is now before this court upon an allowance of appellant's motion to certify the record.

Kimble, Schapiro, Stevens, Harcha & Young and Jack D. Young, Portsmouth, for appellee.

Bannon, Howland, McCurdy, Dever & Mearan and William L. Howland, Portsmouth, for appellant.

WILLIAM B. BROWN, Justice.

The main issue raised by this cause is whether the trial court, in directing a verdict against the appellee, properly ruled that the appellee was negligent as a matter of law because he violated Ohio's assured-clear-distance statute, R.C. 4511.21, by colliding with a 'discernible' object.

R.C. 4511.21 provides in pertinent part:

'* * * no person shall drive any motor vehicle * * * in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead.'

Appellant argues that the trial court properly granted its motion for a directed verdict because (1) the judicial gloss given R.C. 4511.21 by this court implies that 'collision equals violation' of the assured-clear-distance statute; and because (2) the hole which appellee drove into was 'substantial' and, therefore, reasonable minds could not differ as to its discernibility.

Appellant's first argument is not well-taken. Although this court held in Skinner v. Pennsylvania Rd. Co. (1933), 127 Ohio St. 69, 186 N.E.2d 722, that the assured-clear-distance statute is a 'specific requirement of law, a violation of which constitutes negligence per se,' we have not found that collision equals violation of R.C. 4511.21 in every case. Violation of the statute and a finding of negligence per se depends on whether there is evidence that the driver collided with an object which (1) was ahead of him in his path of travel, (2) was stationary or moving in the same direction as the driver, (3) did not suddenly appear in the driver's path, and (4) was reasonably discernible. McFadden v. Elmer C. Breuer Trans. Co. (1952), 156 Ohio St. 430, 103 N.E.2d 385. ¹ Since the appellee ran into a stationary object which was in his path of travel, the main question in this cause is whether that object was 'reasonably discernible.'

Appellant's second argument, that it would be 'impossible for reasonable minds to differ as to the discernibility of this hole' because it 'was not merely a hole' but an 'entire section of a lane of travel * * * 12 feet long, 6 feet wide and 3 feet deep,' attempts to obtain the results of opinions of this court which, for purposes of the assured-clear-distance statute, held such large objects as an unlit truck and an unlit, mudspattered automobile discernible as a matter of law. Gumley v. Cowman (1934), 129 Ohio St. 36, 193 N.E. 627; Kormos v. Cleveland Retail Credit Men's Co. (1936), 131 Ohio St. 471, 3 N.E.2d 427.

The rationale behind those opinions which appellant appears to adopt is best articulated in the Kormos opinion, which states, at page 476, 3 N.E.2d at page 429:

'The automobile in the instant case was a substantial object and, whether mud-spattered or otherwise, whether driven or parked, was an object which should have been discernible by the plaintiff below.'

Because the plaintiff in the Kormos case was unable to explain his inability to see the parked car within the 200-foot range of his headlights, the court's reliance on the car's substantiality in holding it discernible was probably not misplaced. However, the substantiality of an object alone is not sufficient to direct a verdict for the appellant if there is sufficient evidence for reasonable men to reach different conclusions as to the object's actual discernibility. For instance, in McFadden, supra, we refused to rule a three-foot-high, 13,000-pound roll of steel discernible per se on the basis of its size and shape. Instead, following Pennsylvania and Iowa cases, ² we held the discernibility of the steel to be jury question because there was conflicting testimony addressed to the object's actual visibility-whether the roll was lighter, darker or the same color as the highway-about which reasonable minds could differ.

That the discernibility of an object, regardless of its size, should be a jury question where the evidence of discernibility is sufficient to make reasonable persons disagree is supported by policy reasons and the holdings of other jurisdictions as well. To begin with, the goals of the tort system are probably better served by a jury determination of the facts than by judge-made determinations of law.

Especially in cases involving the assured-clear-distance statute, which, by definition, require evaluation of the conduct of the driver in light of the facts surrounding the collision, the judgment of a jury is more likely to achieve a fair result than is a judge-made rule of law. As Dean Prosser says, in doubtful cases questions should be sent to the jury 'because the public insists that its conduct be judged in part by the man in the street rather than by lawyers, and the jury serves as shock absorber to cushion the impact of the law.' ³

Furthermore, as the policy reasons behind holding drivers negligent per se for collisions have become less compelling over the years, ⁴ virtually all other states, whether their assured-clear-distance rules are statutory or judge made, have held discernibility to be a jury question. ⁵

For the foregoing reasons, we hold that whether an object is discernible under a given set of circumstances is a question of fact, and, when reasonable minds could reach different conclusions from the evidence presented upon the question, a motion for a directed verdict upon that basis should be overruled.

Our next question is whether the trial court erred in directing a verdict for the appellant construction company, or whether there was, as the appellate court found, sufficient, conflicting evidence as to the discernibility of the hole to send the issue of discernibility to the jury. When a court rules upon a motion for directed verdict, it must construe the evidence most strongly in favor of the party against whom the motion is made and reserve for the jury any questions of fact about which 'reasonable minds may reasonably reach different conclusions.' Hamden Lodge v. Ohio Fuel Gas Co. (1934), 127 Ohio St. 469, paragraphs three and four of the syllabus, 189 N.E. 246.

Evidence was introduced at the trial that the hole was shaped like a section of pavement and that the appellee did not see the hole until he was practically in it. Certainly reasonable persons could conclude that the regularity and size of the hole might make it less, rather than more, discernible and they could agree with appellee's attorney that '(t)he fact that an entire section of the highway had been removed is precisely why the appellee could not discern the hole.' Given the evidence we find no reason to question the appellate court's determination that the discernibility of the hole was a question for the jury. ⁶ The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

HERBERT, CELEBREZZE and PAUL W. BROWN, JJ., concur.

C. WILLIAM O'NEILL, C. J., and J. J. P. CORRIGAN and STREN, JJ., dissent.

STERN, Justice (Dissenting).

R.C. 4511.21 imposes upon each driver the mandatory duty to maintain an assured clear distance ahead. Whatever the policy considerations which might be cited to mitigate this duty, because of changes in the...