Clark v. Hiatt

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: WISEMAN; HORNBECK, P. J., and CRAWFORD
• Citation: 152 N.E.2d 701,105 Ohio App. 402
• Decision Date: 02 December 1957
• Parties: , 6 O.O.2d 166 CLARK, a Minor, Appellee, v. HIATT, a Minor, Appellant. *

Page 402

105 Ohio App. 402 152 N.E.2d 701, 6 O.O.2d 166 CLARK, a Minor, Appellee,
v.
HIATT, a Minor, Appellant. ^* Court of Appeals of Ohio, Clark County. Dec. 2, 1957.

[152 N.E.2d 702] Syllabus by the Court

1. In an action against the driver of an automobile to recover for injuries to a guest, an amended petition charging wanton misconduct may be amended to conform to the proof, before the case goes to the jury, by alleging defendant's knowledge of the road conditions.

2. In such case, where there is evidence that the automobile was driven at a speed of 75 to 85 miles an hour on a dark night with its headlights deflected downward on a road, along the edges of which was snow, and that the driver continued to drive towards an abrupt bend in the road, of which he had knowledge, without slowing down, and, immediately before coming to such bend in the road, drove at such high rate of speed through the snow drifted across the road, which was slippery, reasonable minds can reach different conclusions from such evidence and, with respect to the allegation of wanton misconduct, a jury question is presented; and defendant-driver's motion for a directed

Page 402

verdict is properly overruled.

3. In an action to recover damages for personal injuries sustained in an automobile collision by plaintiff while riding as a guest in an automobile driven by defendant, a charge to the jury that 'wanton misconduct is to a great extent subjective, or a mental condition' is a correct statement of the law.

4. In such case, there is no prejudicial error in allowing in evidence the testimony of an engineer as to what rate of speed the automobile was traveling to cover a certain distance in feet if another automobile overtaken by such former automobile covered a named distance in feet at a named rate of speed, where such engineer had made measurements of the distances between particular points on the highway over which such automobiles traveled.

Robert G. Bayley and William E. Bailey, Springfield, for appellee.

McKee, Schwer & Taggart, Springfield, and Wiles & Doucher, Columbus, for appellant.

[152 N.E.2d 703]

Page 403

WISEMAN, Judge.

This is an appeal on questions of law from a judgment entered on the verdict of a jury rendered in favor of the plaintiff, appellee herein, for the amount of $10,000 in a suit for damages for personal injuries suffered by the plaintiff while riding as a guest in an automobile driven by the defendant, appellant herein.

This is the second time this court has reviewed a judgment entered for the plaintiff in this action. The opinion of this court on the first review is found in Ohio App., 136 N.E.2d 412 (motion to certify the record overruled, May 16, 1956).

This action was brought under the provisions of Section 4515.02, Revised Code, which permits an action to be brought against the driver of a motor vehicle for injuries to a guest upon the claim that the driver was guilty of wanton misconduct. This court reversed the judgment in the first appeal on the ground that the court failed to charge the jury that neither speed, absence of ordinary care bad judgment or the violation of the safety statute alone are sufficient to constitute wanton misconduct, and that the failure to so charge constituted prejudicial error.

The evidence presented at the second trial was similar to that presented at the first trial. Several questions raised on this appeal were determined by this court in the former appeal.

This case went to trial the second time on the same amended petition.

At the close of plaintiff's case, the court, over the objection of the defendant, permitted the plaintiff to amend the amended petition to conform to the evidence by alleging that the defendant had knowledge of all the conditions of the road at the time of the accident. The answer to the amended petition, which was later refiled as the answer to the amended petition as amended at the close of the plaintiff's case, admitted certain undisputed facts, which was followed by a general denial. To the amended petition as amended at the close of the plaintiff's case the defendant filed a general demurrer, which was overruled. Also, defendant filed a motion for directed verdict, which was overruled. The defendant then presented evidence in support of his defense.

Page 404

The pertinent allegations in the amended petition as amended at the close of the plaintiff's case are herein set forth, with the last amendments italicized. In substance the plaintiff alleges: Plaintiff, James A. Clark, a minor 19 years of age, states that the defendant, Edmund Hiatt, Jr., was a minor 19 years of age; that the Springfield-South Charleston Pike, also known as State Route No. 70, was a public highway extending between Springfield and South Charleston, and that for a distance of 4 miles southeast of Springfield this highway is a smooth macadam surfaced two-lane highway running generally northwest and southeast, which defendant knew at the time of this accident; that on the night of Sunday, December 20, 1953, plaintiff was a passenger in the rear seat of a 1952 Oldsmobile sedan being driven by the defendant in Springfield, and, also, in this automobile were two other teenage companions; that shortly after midnight, while this automobile was so occupied, the defendant drove his car out of Springfield onto the Springfield-South Charleston Pike; that there was other traffic on the highway, that the night was dark and the highway was not lighted and there was snow visible on the ground adjoining the highway, which defendant knew; that while the defendant was driving southeastwardly on said pike he alternated the speed of his automobile between fast and slow, the purpose of this being to induce a road race with another automobile traveling said highway in the same direction, which the defendant knew; that in this manner defendant drove his automobile through the intersection of Bird Road with the Springfield-South Charleston Pike, and proceeded on said highway at a high rate of speed, to wit, 70 miles per hour, passing another vehicle and going over the [152 N.E.2d 704] tracks of the New York Central Railroad which intersects said highway southeast of Springfield, notwithstanding that a train was approaching this railroad-highway intersection, which defendant knew; that thereafter, when another automobile attempted to pass the defendant's automobile at a point adjoining the Clark County Fairgrounds, the defendant increased the speed of his automobile so that it was traveling in excess of 80 miles per hour with only his dim light operating and without keeping a lookout on the road in the direction in which his automobile was traveling, so that it passed the junction

Page 405

of Laybourne Road with said highway, and continued to a point where the highway is entered by the Titus Road, at which point the Springfield-South Charleston Pike is narrow, unlighted, highcrowned, bumpy, smooth-surfaced, and makes a turn to the left at the same point at which it starts uphill, all of which defendant knew, at which point defendant lost control of his automobile, which automobile traveled southeastwardly a distance of approximately 165 feet, on the berm of the highway, then ran off the...