Cindy L. Kurtz v. Randall L. Adams, 86-LW-1369
| Decision Date | 12 May 1986 |
| Docket Number | 86-LW-1369,1-84-63 |
| Parties | Cindy L. KURTZ, et al., Plaintiffs-Appellants, v. Randall L. ADAMS, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Civil Appeal from Common Pleas Court.
Newcomer Shaffer, Geesey & Hutton, John S. Shaffer, Bryan, Ohio, for plaintiffs-appellants.
Cory Leonard, Witter & Cheney, Frank B. Cory, Lima, Ohio, for defendant-appellee.
This appeal is taken by plaintiffs Cindy L. Kurtz and Dennis Kurtz, from a judgment of the Court of Common Pleas of Allen County dismissing their complaint in a personal injury action filed against the defendant Randall L. Adams.
The collision giving rise to the action occurred at the intersection of 14th Street and McClain Road in Allen County. Plaintiff Cindy Kurtz was driving her car in a westerly direction on 14th Street approaching the "T" intersection formed by 14th Street which terminates at McClain Road, a two-lane highway.
Plaintiff failed to stop at the stop sign on 14th Street prior to entering the intersection, and continued operating her vehicle at slow speed into the intersection. Upon turning north on McClain, plaintiff drove her car partly into the east half or southbound passing lane of McClain Road.
The plaintiff had not entered the intersection at the time defendant, traveling at a legal rate of speed in a southerly direction on McClain Road, crossed its centerline and began passing the car in front of him.
While passing, defendant drove on the left side of McClain Road within 100 feet of its intersection with 14th Street.
Shortly after the plaintiff started her turn onto McClain Road, the collision occurred between her car and that of the defendant.
After the filing of the complaint, the issues of liability and damages were bifurcated and trial was had to the court on November 3, 1983.
The court determined that plaintiff was 70% negligent in causing the accident by failing to effectively stop and yield the way to defendant before entering the intersection, thereby violating R.C. 4511.43(A), and dismissed the complaint.
The trial court found defendant to be 30% negligent in causing the accident by attempting to pass a vehicle within 100 feet of an intersection, in violation of R.C. 4511.30(C).
Plaintiffs filed this appeal, asserting as their sole assignment of error:
"The trial court committed prejudicial error in holding that the plaintiff violated Ohio Revised Code 4511.43(A) and as a result, improperly held the defendant [plaintiff] 70% at fault in causing the accident."
Our correction of the assignment of error arises from the explanation of the error in drafting offered by counsel for plaintiff at oral argument. We do not yield to defendant's contention that this is critical to our consideration, and will proceed as if it were written as corrected.
The statute leading to the trial court's determination of plaintiff's fault is R.C. 4511.43(A), which states in pertinent part:
Plaintiff contends that the trial court erred in holding that plaintiff violated the above section, because the trial court failed to consider the definition of right of way as set forth at R.C. 4511.01(UU):
" "Right of way' means the right of a vehicle, streetcar, trackless trolley, or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or he is moving in preference to another vehicle, streetcar, trackless trolley, or pedestrian approaching from a different direction into its or his path."
As the trial court determined that defendant violated R.C. 4511.30(C), which prohibits driving upon the left side of the roadway within 100 feet of an intersection, plaintiff argues that the above provision operates to deprive defendant of the right of way, since he was not operating in a "lawful manner."
We do not agree...
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