Chesrown v. Bevier

• Decision Date: 08 June 1920
• Docket Number: 16465
• Citation: 101 Ohio St. 282,128 N.E. 94
• Parties: Chesrown v. Bevier
• Court: Ohio Supreme Court

128 N.E. 94

101 Ohio St. 282

Chesrown v. Bevier

No. 16465

Supreme Court of Ohio

June 8, 1920

Negligence - Automobiles and vehicles - Duty to display lights after sundown - Sections 12614 and 12614-3, General Code - Statutory construction - Repeal by implication or supplementaI enactment Charge to jury - Written requests before argument - Trial court to give charge, when - Negligence per se and prima facie - Violation of statute.

1. Section 12614, General Code, is supplemented but not repealed by Section 12614-3, General Code.

2. Upon a written request to charge before argument, if the request correctly states the law and is pertinent to one or more of the issues of the case and the same subject has not been covered by other charges given before argument, it is error to refuse to give such charge before argument, even though the language of the charge is not the exact language the court would have selected.

3. The violation of 'a statute passed for the protection of the public is negligence per sc. (Schell v. DuBois, Admr., 94 Ohio St. 93, approved and followed.)

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Mr. H T. Manner and Mr. J. M. Reed, for plaintiff in error.

Messrs Long & Marriott and Messrs. Skiles & Skiles, for defendant in error.

ROBINSON J.

On the evening of the 13th day of November, 1917, the automobile of plaintiff in error collided with the team of mules and wagon of the defendant in error. The defendant in error filed two suits in the common pleas court of Richland county against the plaintiff in error, each charging the plaintiff in error with negligence in driving upon the wrong side of the road, with negligence in not displaying proper lights, and negligence in driving his automobile at an excessive rate of speed, the one seeking recovery for injury to his person and the other for injury to his property.

Answers were filed making an issue upon each allegation of negligence, charging contributory negligence on the part of the defendant in error, in that he was driving his team and wagon on the wrong side of the road, and in that he had no lights on his wagon, and averring that the collision occurred more than one hour after sunset. Cross-petitions were also filed charging the same negligence and asking judgment for damages sustained to the automobile of plaintiff in error. Replies were filed denying negligence and contributory negligence.

Upon motion the two cases were consolidated and the cause went to trial upon the pleadings in the two cases.

There was evidence tending to support the respective allegations of the parties. Judgment was recovered by the defendant in error, motion for a new trial overruled, and judgment of the court of common pleas was affirmed by the court of appeals.

The error complained of here relates wholly to the refusal to charge special requests of plaintiff in error and to portions of the general charge. The special requests were as follows:

"II. In a collision case no recovery can be had for injuries from defendant's negligence when it appears that plaintiff's own negligence directly contributed in the slightest degree to the injuries complained of."

"III. If, at the time of the accident, the sun had set for one hour or more, and the plaintiff had no lights on his wagon, and by reason thereof the defendant was unable to see plaintiff's wagon or team, and by reason of such want of light, such failure to have attached a light, it directly contributed to the injury, and although the defendant was negligent, the plaintiff cannot recover."

That special charge II is a correct statement of the law must be conceded, although we prefer the word "any" to the words "the slightest," and since there was evidence tending to prove that the negligence of the plaintiff below directly contributed to his injury it was error to refuse to give it to the jury.

The statute with reference to special requests before argument is mandatory, and the duty of the court with reference thereto is to determine whether the request correctly states the law whether the law as stated is pertinent to one or more of the issues in the case, and, if the request correctly states the law and is pertinent to one of the issues of the case, to give at least one such requested charge on each issue before argument.

Special request No. III, whatever may have been in the minds of counsel, is so peculiarly worded that it might well be interpreted as declaring as a matter of law that the absence of lights on the wagon "directly contributed to the injury." If so interpreted, it invades the province of the jury, proximate cause being a question of fact for the jury.

It is also subject to the interpretation, and probably was so intended to be interpreted by counsel, that if the jury should find that the absence of lights on the wagon directly contributed to the injury the plaintiff could not recover even though the defendant were negligent; and if it were subject to no other interpretation either it or special request No. II should have been given, but not necessarily both. The purpose of all instruction of the jury by the court, whether by special request before argument or by general charge, is to make plain the law applicable to the issues of the case, and a request pregnant with a double meaning, one of which is unsound, or would tend to confuse instead of elucidate, is erroneous and properly refused.

In the general charge the court instructed the jury as follows:

"The statutes of this state also provide that whoever operates or drives a motor vehicle upon the public roads and highways of this state shall provide it, among other things, with two white lights in the front, and shall display such lights during the period from thirty minutes after sunset to thirty minutes before sunrise, so that the light therefrom is visible at least two hundred feet in the direction in which such motor vehicle is proceeding. * * *

"The statutes of this state provide that it shall be the duty of every person who operates, drives, or has upon any public highway a vehicle on wheels, during the time from one hour after sunset to one hour before sunrise to have attached thereto a light or lights the rays of which shall be visible at least 200 feet from the front.'"

And it is urged here that the paragraph relating exclusively to motor vehicles is erroneous for the reason that Section 12614, General Code, enacted April 28,1913 (103 0. L., 766), with reference to the lights and the time of displaying same, was repealed by Section 12614-3, General Code, enacted March 7,1917 (1070. L., 58). The two sections read as follows:

Section 12614: "Whoever operates or drives a motor vehicle upon the public roads and highways without providing it with sufficient brakes to control it at all times...