Bramley v. Dilworth

• Decision Date: 07 June 1921
• Docket Number: 3506.
• Citation: 274 F. 267
• Parties: BRAMLEY v. DILWORTH.
• Court: U.S. Court of Appeals — Sixth Circuit

274 F. 267

BRAMLEY v. DILWORTH.

No. 3506.

United States Court of Appeals, Sixth Circuit.

June 7, 1921

W. H Boyd, of Cleveland, Ohio (Boyd, Cannon, Brooks & Wickham and Howell, Roberts & Duncan, all of Cleveland, Ohio, on the brief), for plaintiff in error.

S. H. Holding, of Cleveland, Ohio (Holding, Masten, Duncan &amp Leckie, of Cleveland, Ohio, on the brief), for defendant in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge.

On the 12th of November, 1919, the defendant in error, John G Dilworth, a minor, resident of Pennsylvania, by his next friend, John C. Dilworth, commenced an action in the United States District Court Northern District of Ohio, Eastern Division, against the plaintiff in error, Matthew F. Bramley to recover damages for personal injuries, which injuries he averred in his petition were caused by the negligence of Matthew F. Bramley. The acts of negligence complained of are fully set forth in the petition. Issues were joined by answer and reply, and the cause was tried to a jury, resulting in a verdict for the plaintiff in the sum of $33,000. Judgment was rendered upon this verdict.

Dilworth, at the time of the accident, was visiting in Cleveland. On the evening of the 15th of April, 1919, with a number of other young men of his acquaintance, he attended a fraternity meeting at the Paisley house, on or near to Edgewater Drive, in the city of Cleveland, Ohio. Edgewater Drive runs east and west and is 28 feet wide from curb to curb. At a point near where the accident occurred there is a street called Harbor View Drive, 24 feet wide, running north from Edgewater Drive, then turning in the shape of a letter 'U' and re-entering Edgewater Drive about 500 feet west of the place where the collision occurred. The Paisley house is about one-third of a mile west of the place where the collision occurred.

After the fraternity meeting was over, and about 10:30 p.m., Dilworth, with six other young men, was traveling eastward on Edgewater Drive in a Hudson automobile driven by Leland Ritzman. About the same time Bramley drove a Templar Sedan automobile out of Harbor View Drive at its east point of intersection with Edgewater Drive, crossed Edgewater Drive to the south side, and was proceeding east along that highway. The rear end of his automobile had reached a point about 16 feet east of a point in the south curb of Edgewater Drive directly opposite the east curb line of Harbor View Drive, when the car in which Dilworth was riding, and which was driven by Leland Ritzman, overtook it, and in attempting to pass to the right of it collided either with the spring horn of the frame or the right rear wheel with such force as to break all the glass on the right side and rear of the Bramley car, break the right rear wheel, and force the axle ahead on the right side eight inches, tearing off 4 U-bolts which held the axle to the spring, and also shearing off 8 of the 10 bolts which held the axle housing to the differential housing. It also broke the running board on the right rear side. The left rear wheel of the Hudson car, in which Dilworth was riding, was crushed or crumpled up and completely destroyed, and the rear fender was broken. The force of the collision caused Dilworth to be thrown to the top or the side of the Hudson car, by reason of which he sustained severe injuries.

The petition avers that Bramley was guilty of negligence in attempting to cross Edgewater Drive without giving notice or warning by horn or otherwise, and in driving in a careless manner and at a negligent rate of speed, and without looking to the west along Edgewater Drive to ascertain before turning into that drive whether an automobile was moving easterly thereon; that, on the contrary, he suddenly and quickly attempted to cross Edgewater Drive and proceed in an easterly direction along the same; that at that time Edgewater Drive was paved with asphalt and was wet and slippery; that the condition of the pavement was such that an automobile turning into the drive was liable to skid unless driven slowly and carefully, all of which Bramley then and there well knew. It is further averred in the petition that Bramley, in driving over and across Edgewater Drive, violated paragraphs 1, 6, 12, 13, and 14 of section 1341 and also section 1343a of the Ordinances of the City of Cleveland.

The answer denied these averments of negligence on the part of Bramley, denied that the plaintiff was injured as a direct and proximate result of any negligence or carelessness on the part of the defendant, and averred that defendant was driving properly with due regard to his own safety and the safety of others; that the plaintiff was injured solely as a result of the negligent, terrific, unlawful, and highly dangerous rate of speed at which the Hudson car, in which Dilworth was riding, was being driven by Ritzman, in total disregard of the safety of defendant and all others upon the highway and of the occupants of said car. The reply denied the allegations of the answer which did not admit the averments in the petition.

Section 1343a of the Ordinances of the City of Cleveland prohibits the driving of an automobile or other vehicle recklessly or negligently, or at a rate of speed or in a manner so as to endanger or to be likely to endanger the life or limb or property of any person, and further provides that a rate of speed exceeding 15 miles per hour shall constitute prima facie evidence of a violation of this ordinance, and that a rate of speed exceeding 20 miles per hour shall be conclusive as to its violation.

Paragraph 14 of section 1341 provides, among other things, that no vehicles shall cross any main thoroughfare or make any turn thereon at a greater speed than one-half of the legal speed limit upon such thoroughfare, and that in all other cases vehicles going in a general east and west direction shall have the right of way. The provisions of paragraphs 12 and 13 are substantially the same as to right of way.

The plaintiff in error seeks a reversal of this judgment upon the grounds:

(1) The evidence is insufficient to support the verdict and judgment.

(2) The court erred in its charge to the jury.

(3) Error of the court in permitting the witness Ritzman, the driver of the Hudson car, to testify that he had the right of way, and knew he had the right of way.

(4) The court erred in permitting the witness Scribner to testify that in his opinion the Bramley car skidded.

While under the facts of this case the negligence of the driver of the Hudson car cannot be imputed to the plaintiff in error, nevertheless the manner in which this car was operated, at and immediately prior to the time of the accident, is of vital importance in determining the real cause of this accident.

The witnesses for the defendant placed the speed at which the Hudson car was traveling eastward on Harbor View Drive at 40 or 45 miles an hour. The young men riding in that car testified that it was traveling about 20 or 25 miles an hour, but further stated that it was traveling so fast that because of the condition of the street the driver could not apply the brakes and stop the car within a reasonable distance. There are, however, some other facts in this case that perhaps demonstrate with greater certainty the speed at which this Hudson car was traveling than the opinion of witnesses who saw it or were riding in it. The driver of this car, realizing that there was not sufficient room between the Bramley car and the curb to permit his car to pass, ran the right wheels of the Hudson car over the south curb. These wheels cut into the soft clay on the outside of the curb, cutting a gutter therein 10 to 14 inches wide and from 6 to 12 inches deep in places, and about 35 feet in length to where the car returned to the street. The car, while traveling in this course and under these conditions, came in contact with and completely tore out of the ground a cedar post which was standing just inside the curb, 8 feet long, 6 to 8 inches in diameter, and sunken in the ground from 2 to 2 1/2 feet.

There is some conflict in the evidence as to the distance the Hudson car ran with a crushed left rear wheel and its two right wheels in the soft earth. The evidence offered by the plaintiff tends to prove that it stopped after it had passed the Bramley car a short distance; the defendant's evidence tends to prove that it did not stop until it had run the entire length shown by the ruts in which the wheels traveled until it passed back into the street. While the attending facts and circumstances would indicate that the Hudson car must have been carried by the velocity with which it was moving, in connection with its own power, the entire distance traveled by it until it reentered the paved street, instead of being moved there by its own power only, after it had once stopped, yet whether that be so or not is of little importance. It affirmatively appears from the plaintiff's evidence that this car traveled a substantial distance with two wheels deeply imbedded in the soft earth and its left hind wheel crushed and useless. The force with which it struck the Bramley car has already been described.

The driver of the Hudson car testified he was traveling at about 20 miles an hour, yet under the provisions of section 1343a of the Ordinances of the City of Cleveland, a rate of speed exceeding fifteen miles an hour under any conditions is prima facie evidence, and a rate of speed exceeding 20 miles an hour conclusive evidence of the violation of the provisions of this ordinance, so that if the testimony of Ritzman as to the speed at which he was driving is accepted as true, in view of the wet, slippery, and dangerous condition of this street at this time, 20...