Burge v. Pepsi-Cola Bottling Co. of Cincinnati

• Decision Date: 23 June 1971
• Docket Number: PEPSI-COLA,No. 70-577,70-577
• Citation: 271 N.E.2d 273,26 Ohio St.2d 237,55 O.O.2d 478
• Parties: , 55 O.O.2d 478 BURGE et al., Appellants, v.BOTTLING CO. OF CINCINNATI, Appellee.
• Court: Ohio Supreme Court

Page 237

26 Ohio St.2d 237

271 N.E.2d 273, 55 O.O.2d 478

BURGE et al., Appellants, v. PEPSI-COLA BOTTLING CO. OF CINCINNATI, Appellee.

No. 70-577.

Supreme Court of Ohio.

June 23, 1971.

Syllabus by the Court

Where the care and attention ordinarily required of a pedestrian using a public sidewalk were diverted by circumstances not caused by him, the question of whether such diversion excused his failure to discern and avoid a hazard is one of fact for the jury so long as the degree of visibility of the hazard was such that it could not be said as a matter of law that a reasonably prudent person under the same or similar circumstances would have seen it in time to avoid injury.

On the morning of October 1, 1964, employees of appellee, the Pepsi-Cola Bottling Company of Cincinnati, parked their service truck adjacent to a sidewalk near the southeast corner of the intersection of Schenck Avenue and Blue Ash Road in the city of Deer Park, Ohio. At about 10:50 a. m., appellant Violet Burge left her home accompanied by her granddaughter, age two and one-half, intending to pick up another granddaughter, age five and one-half, at a nearby school. As the two walked toward the abovementioned intersection, appellant saw appellee's employees engaged in erecting a sign on the front of a nearby store, and passed by and observed appellee's truck. Sometime after Mrs. Burge and the child walked past the truck, one of the employees, having gone to the truck to obtain a tool from a toolbox located on the side of the truck, failed to close the metal toolbox lid. The open lid protruded from the side of the truck in such a manner that it extended horizontally over the sidewalk some 18 inches. Meanwhile, Mrs. Burge and the child had turned left at the corner of Schenck onto Blue Ash and proceeded a few blocks to the school, where they picked up the oldest grandchild. On the way home, the three stopped in a store and Mrs. Burge purchased some groceries, which she was carrying in a bag with her left arm as she proceeded back toward the intersection of Blue Ash and Schenck. As she turned right at the corner and started to walk down the sidewalk on Schenck, Mrs. Burge was generally aware of the truck but did not observe the extended open lid. Immediately thereafter, she turned her head and looked behind her to see whether one of the children who was tagging along was following her around the corner. She continued on a few steps, and, while looking behind her, allegedly struck her left hand against the corner of the protruding toolbox lid.

She and her husband brought this action in the Common Pleas Court of Hamilton County seeking damages for permanent injuries, medical expenses, and pain and suffering resulting from the alleged negligence of appellee, through its agents, in permitting the toolbox lid to protrude over a public sidewalk.

At the close of appellants' evidence, appellee's motion for a directed verdict on the ground that Mrs. Burge was contributorily negligent as a matter of law was sustained, the jury was discharged and judgment was entered in favor of appellee.

Upon appeal, the Court of Appeals affirmed the judgment, and the cause is now before this court pursuant to the allowance of a motion to certify the record.

Orth & Zier, and Frank M. Zier, Cincinnati, for appellants.

McIntosh & McIntosh, and Bruce B. McIntosh, Cincinnati, for appellee.

HERBERT, Justice.

The issue presented in this appeal is whether reasonable minds might disagree upon the question of whether appellant Violet Burge was contributorily negligent.

Appellant's principal contention is that, even if her failure to observe the hazard otherwise constitutes contributory negligence, her concern over the activity of her grandchild distracted her attention and excused her failure to see the toolbox lid. In support of her argument that the element of distracted attention required submission of the question of contributory negligence to the jury, appellant relies upon paragraph three of the syllabus in Grossnickle v. Germantown (1965), 3 Ohio St.2d 96, 209 N.E.2d 442, which reads:

'Whether the care and attention ordinarily required of a pedestrian using a public sidewalk and approaching an intersection are diverted by weather conditions, traffic hazards and the apparently safe condition of the surface of the walk so as to excuse her from observing a hazard, which she otherwise would have the duty to see and the potential danger of which she had prior knowledge, is a question of fact for a jury.'

Appellee, however, contends that Grossnickle limits the applicability of the doctrine of distracted attention to situations where the alleged distraction relates solely to the personal safety of the plaintiff. Such an interpretation of that case is too narrow.

Evidence tending to show multiple distractions, touching upon the personal safety of a plaintiff, might be accorded greater probative force by the triers of fact than evidence tending to show a single distraction of a more tangential nature. However, in Grossnickle, at page 103, 209 N.E.2d at page 448, Justice Schneider stated the general principle of law underlying the issue of contributory negligence:

"The authorities generally are to the effect that one whose attention is diverted is not to be held to the same closeness of observation as he would otherwise be; and where his act, but for such diverted attention, would have been negligent, upon proof tending to show conditions throwing him off his guard, the question of his negligence is one for the jury.' Wheeler v. Sioux Paving Brick Co., 162 Iowa 414, 142 N.W. 400 (attention diverted from dangerous machinery by the approach of a car). See Flattery v. Goode, 240 Iowa 973, 38 N.W.2d 668 (attention diverted from starting of machinery by sticking of tailgate of truck); Bartels v. Cair-Dem, Inc., 255 Iowa 834, 124 N.W.2d 514 (attention diverted by...