Brooks v. Sentle

• Decision Date: 29 March 1943
• Citation: 58 N.E.2d 234,74 Ohio App. 231
• Parties: BROOKS v. SENTLE et al.
• Court: Ohio Court of Appeals

58 N.E.2d 234

74 Ohio App. 231

BROOKS v. SENTLE et al.

Court of Appeals of Ohio, Sixth District, Lucas.

March 29, 1943

Syllabus by the Court.

1. Where the trial court grants a motion for judgment notwithstanding the verdict, renders judgment thereon, and recites in the entry thereof that such motion was granted upon consideration of plaintiff's evidence and a special finding of fact, a reviewing court is not precluded from examining the entire record upon appeal from such judgment.

2. Where the uncontradicted facts are that the owner of an automobile, while riding therein, permits another to drive it, a presumption arises that the driver is the agent of the owner.

Heslip & Gibson, of Toledo, and Artee Fleming, of Akron, for appellant.

Kirkbride Frease & Cole, of Toledo, for appellees.

LLOYD Judge.

In his action commenced in the Court of Common Pleas, the plaintiff Booker T. Brooks, as administrator, sought to recover damages for the wrongful death of Charles Eugene Brooks, alleged to have been proximately caused by the negligence of an employee of defendant Harvey H. Sentle, doing business as Sentle Trucking Company.

On the night of February 13, 1940, the right front wheel of a tractor owned by defendant Sentle and operated by one of his employees, became detached, requiring the stopping of the tractor and the trailer attached thereto, on the right side of route No. 20 some 20 or 25 miles west of Toledo, whereon the tractor with the trailer had been proceeding westerly. The tractor weighed 5,600 pounds and the trailer was loaded with 6,400 pounds of steel.

The decedent, in his Buick automobile, in company with a Mr Stewart and Mose Robinson, was also traveling westerly on route No. 20. The decedent, Brooks, who lived in Akron, had planned to drive to Chicago, and Stewart, who desired to stop at his home in Gary, Indiana, arranged to go along. Robinson having heard of his intended trip, asked the decedent if he might accompany him as far as Gary where his sister resided. As he stated it: 'Well, I heard him say something about it and I wanted to see my sister, so I asked him could I go.'

For this privilege he paid nothing and received no payment of anything from Brooks. Robinson had been, or was, a chauffeur and apparently a capable, if not an exceptionally expert driver. He drove the automboile from Akron to Toledo where Stewart assumed its operation. They stopped at several places in the city, the last of which was a gasoline station where Robinson asked Brooks to let him drive 'from there on * * * for the reason' that he 'thought it was safer,' and that 'I was a better driver than they were and I thought it would be better for me to drive at that particular time.' Brooks was sitting in the front seat with Robinson. Stewart was in the rear seat. At about 10:30 p. m. the Buick of Brooks, being driven by Robinson, crashed into the rear of the Sentle trailer, the collision resulting in the death of both Brooks and Stewart.

Robinson, who was the only witness on behalf of plaintiff as to the actual happening, testified, in substance, as follows:

The weather was 'bad, that it was sleeting and mistlike and had to have the windshield wiper going so we could see.' The front lights on the Buick lighted the roadway 'maybe 200 feet' and 'I could see far enough to stop if I seen anything. I guess I could see about 100 feet.' When he first saw the truck, he was 'too close to stop * * * I could not miss it.' Before the collision, the Buick had been traveling from 40 to 45 miles an hour. There were no lights on the tractor and trailer and there were no flares or fusees. It was 'all dark.'

Several Witnesses of defendant Sentle testified that the tractor and trailer were well lighted and that flares and fusees had been placed on the highway to warn traffic of the danger.

At the conclusion of plaintiff's...