Bush v. Harvey Transfer Co., No. 30572.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: HART
• Citation: 146 Ohio St. 657,67 N.E.2d 851
• Parties: BUSH v. HARVEY TRANSFER CO. et al.
• Decision Date: 19 June 1946
• Docket Number: No. 30572.

146 Ohio St. 657
67 N.E.2d 851

BUSH
v.
HARVEY TRANSFER CO. et al.

No. 30572.

Supreme Court of Ohio.

June 19, 1946.

[67 N.E.2d 852]

Syllabus by the Court.

1. Negligence per se consists of the active violation of a standard of care established by a safety legislative enactment adopted for the protection of the public, specifically describing the conduct required of one amenable thereto.

2. A legal excuse, precluding liability for injuries resulting from negligence per se in the failure to comply with a safety legislative enactment directing the manner of the operation of a motor vehicle on the public highways, must be something which makes it impossible to comply with the safety legislative enactment, something over which the driver has no control, an emergency not of the driver's making causing failure to obey the statute, or an excuse or exception specifically provided in the enactment itself.

3. The two-issue rule is, that error in the charge of the court dealing exclusively with one of two or more complete and independent issues required to be presented to a jury in a civil action will be disregarded, if the charge in respect to another independent issue which will support the verdict of the jury is free from prejudicial error, unless it is disclosed by interrogatories or otherwise that the verdict is in fact based upon the issue to which the erroneous instruction related.

4. In an action based on negligence, the issue of contributory negligence does not arise unless the issue of negligence on the part of the defendant is first found adverse to the defendant; and error in the charge of the court on the issue of negligence prejudicial to the plaintiff will invalidate a verdict for the defendant even though there was no error in the charge on the issue of contributory negligence.

5. Neither negligence nor contributory negligence is presumed. On the contrary, there is a presumption that a decedent, prior to his death caused by a collision of a vehicle of another in which he was riding as a guest, was acting as a person of ordinary care and prudence would have acted under the same or similar circumstances. To warrant the submission of the issue of contributory negligence to the jury it is essential that some evidence be adduced tending to show that the plaintiff failed in some respect to exercise the care of an ordinarily prudent person under the same or similar circumstances and that such failure was a proximate cause of his injury and resulting death.

Appeal from Court of Appeals, Butler County.

Action by Ivan Bush, administrator of the estate of Hobart Bush, Jr., deceased, against the Harvey Transfer Company and another for death of plaintiff's decedent in an automobile collision. A judgment for defendants was affirmed by the Court of Appeals, 67 N.E.2d 53, and the case came before the Supreme Court on allowance of plaintiff's motion to certify the record of the Court of Appeals.-[Editorial Statement.]

Affirmed in part, and reversed in part and cause remanded.

WEYGANDT, C.J., dissenting.

[67 N.E.2d 853]

On the night of May 19, 1943, plaintiff's decedent, Hobart Bush, Jr., while riding in a southerly direction on state route No. 4, south of Middletown, in an automobile operated by one Crigler, was killed when the automobile crashed into the rear end of a truck owned by the Harvey Transfer Company, a motor transportation company. The truck was being operated on the same highway in the same direction by one Hopper but had come to an emergency stop due to a blown fuse extinguishing all lights on the truck.

The Harvey truck was brought to a stop on the west edge of the paved portion of the highway at a point about 300 feet south of the crest of a hill on the highway. As thus parked the truck was without lights. Hopper, who died prior to the trial of the case but whose deposition had been taken, testified in substance that the light fuse on his truck suddenly blew out, leaving the truck without lights, whereupon he moved the truck over to the edge of the pavement and stopped; and that he stuck a fusee on the rear end of his truck and was in the act of getting out his pot torches when the crash occurred.

Another truck, owned by one Stubbs but in the service of the defendant Holmes, doing business as a motor transportation company under the name of Holmes to Homes Transportation Company, and driven by one Dennis, was proceeding in a northerly direction on the same highway, and had passed the unlighted Harvey truck soon after the latter came to a stop. Dennis, the driver of the Holmes truck, observing the situation of the Harvey truck, moved by it up the road to the north a distance of approximately 200 feet where he pulled off the improved portion of the highway into a driveway and parked his truck facing in a northerly direction with lights burning.

As Dennis was parking his truck he observed the lights of the Crigler car approaching from the north when the car was from 600 to 1,500 feet away. When it was about 350 feet away he dismounted from his truck, procured a flashlight, went upon the east side of the highway from three to eight feet and attempted to wave down the approaching Crigler car. The car approached and passed him and as it passed he called out to Crigler, ‘watch out for that truck.’ Three or four seconds elapsed from the time the Crigler car passed Dennis until it crashed into the Harvey truck. Crigler, the driver of the car in which Bush was a passenger, testified that he was blinded by the headlights of the Holmes truck as he approached the Harvey truck and had turned slightly to the right just as the collision with the Harvey truck occurred. The Crigler car struck the right wheel of the Harvey truck with the center of the radiator. The impact did not throw Crigler or Bush from the car seat but the latter was killed by glass from the windshield, cutting a blood vessel in his neck.

The plaintiff as administrator of Bush, brought this wrongful death action in the Common Pleas Court of Butler county against the Harvey Transfer Company, John H. Holmes, d. b. a. Holmes to Homes Transportation Company, and Stubbs, as defendants. The trial court, being of the view that there was no evidence connecting Stubbs with the collision, directed a verdict in his favor.

Plaintiff's third amended petition alleged that the Harvey Transfer Company at the time of the accident was operating a motor tractor with a semi-trailer whose gross weight was in excess of 3,000 pounds; that on the west side of the traveled portion of the highway at the point of accident there was a dry shoulder or berm eight feet wide; that there were other parking facilities nearby off the side of the highway; that defendant Harvey Transfer Company was negligent in the manner of parking its truck on the highway at the point in question; that it failed to place any lighted fusee on the roadway or at any place; that it neglected to place any lighted flares on the highway until long after its vehicle had

[67 N.E.2d 854]

been brought to a stop and after the collision had occurred; that it failed to have reflectors, visible by the light of approaching headlights, on the rear of its semitrailer; and that it neglected to give warning of the presence or position of its truck on the highway to vehicles approaching from the north.

The third amended petition also alleged that the defendant Holmes operated his truck negligently in that he failed to have his employee become conversant with the rules of the Public Utilities Commission relating to the operation of motor vehicles under its certificates; that he left his equipment with bright lights burning on the front thereof, with such lights facing toward the vehicle in which decedent was riding as it approached from the north; that Holmes neglected to place any lighted fusee on the highway or at any place; and that as a result of the carelessness and negligence of the two defendants above named the accident which caused the injury to and death of plaintiff's decedent was brought about.

The answer of the Harvey Transfer Company to plaintiff's third amended petition admitted that the lights on its truck had ceased to burn; that its truck was thereupon brought to a stop on the west side of the highway and the berm contiguous thereto; and that shortly thereafter the Crigler car collided with the rear end of the Harvey trailer. The answer denied that the collision was caused by any negligence on the part of Harvey or on the part of its servant, agent or employee, and denied all other allegations of the petition.

The answer of Holmes admitted that the Harvey Transfer Company was negligently and carelessly managing its equipment as set forth in plaintiff's third amended petition, and that through such negligence the collision occurred, but denied all degligence on his part.

On trial of the case the jury returned a separate verdict in favor of each of the two remaining defendants, and judgment was entered in accordance with the verdicts.

On appeal, two judges of the Court of Appeals held that it was prejudicially erroneous for the trial court to give special charge number four requested by the defendant Harvey and hereinafter quoted. However, the Court of Appeals held that there was present the issue of contributory negligence and affirmed the judgment under the two-issue rule, one judge dissenting.

The plaintiff then filed a motion to certify the record of the Court of Appeals to this court, which motion was allowed.

J. T. Riley, of Franklin, and C. W. Elliott, of Middletown, for appellant.

Rendigs & Fry, of Cincinnati, for appellee Harvey Transfer Co.

Baden & Fiehrer, of Hamilton, for appellee John H. Holmes, d. b. a. Holmes to Homes Transp. Co.

HART, Judge.

Plaintiff contends that the trial court erred in giving to the jury before argument special requested charge number four.

The court in its general charge to the jury submitted for its consideration three specifications of alleged negligent acts on the...