Clary v. McDonald

Citation120 Ohio App. 8,28 O.O.2d 169,200 N.E.2d 805
Parties, 28 O.O.2d 169 CLARY, Appellant, v. McDONALD et al., Appellees. *
Decision Date12 June 1963
CourtUnited States Court of Appeals (Ohio)

Robert H. Huffer and Marshall Douthett, Circleville, for appellant.

Thomas A. Renick and Allan Berger, Circleville, for appellees.

COLLIER, Presiding Judge.

This action was instituted in the Common Pleas Court of Pickaway County by Otis Clary, Jr., plaintiff, appellant herein, hereinafter designated as plaintiff, against D.E. McDonald, Orlando Martin, Jr., and Leroy Diehl, defendants, appellees herein, hereinafter designated as McDonald, Martin and Diehl.

The plaintiff, in substance, alleges in his petition that McDonald, on March 26, 1960, was the sole proprietor of a retail business in the city of Circleville, merchandising tires and appliances; that Martin was an employee of McDonald and on that date was working in a repair shop of the business of McDonald; that on said date the plaintiff accompanied Diehl, as a friend and companion, when Diehl went to McDonald's place of business to exchange tires on his truck; that, as the plaintiff and Diehl were walking from the rear of the business premises of McDonald to the front part of the premises, Diehl stopped in a room adjacent to the repair shop, mounted a small power mowing machine, called a 'Wheelhorse,' and started the machine; that Diehl called the plaintiff's attention to the machine and requested the plaintiff to remove a hammer which was lying under one of the wheels of the machine; and that as the plaintiff reached to pick up the hammer his left hand came in contact with the cutting blade attached to the machine, resulting in the amputation of the second, third and fourth fingers of his left hand.

Plaintiff alleges that Diehl was negligent in starting and operating the mowing machine and requesting plaintiff to remove the hammer whthout knowing the full condition of the machine; that Martin was negligent in that he could have and should have heard Diehl starting and operating the machine and could have and should have prevented Diehl from so doing; and that McDonald, as owner of the business, was negligent in permitting the mowing machine to be equipped with a mowing blade attached and in having the machine filled with gasoline and in operating condition. Plaintiff claims that these alleged acts of negligence of the defendants were the proximate cause of his injuries.

Diehl filed no answer but appeared in person without counsel at the trial. McDonald filed an answer in which he admits he is proprietor of such business establishment, that plaintiff was on his premises as alleged and received some injury to his hand, but denies all other allegations of plaintiff's petition. Martin's answer is similar in all respects to McDonald's except he admits that he was an employee of McDonald at the time and place aforesaid.

Upon the trial, the evidence adduced by the plaintiff established generally the facts alleged in the petition. The plaintiff testified, however, that the purpose of his visit to the store was to inquire about the purchase of the used tires removed from Diehl's truck, which was contradictory to a prior statement made by him in a deposition. The evidence shows also that on a prior visit to the store Diehl was shown by Martin how to start the mowing machine which was owned by a customer and in the shop for repairs, and that on the day of the injury Diehl inquired of Martin whether the mower would run and was told by Martin that he had been working on it and he thought it would run.

At the close of plaintiff's evidence the court sustained the motion of McDonald and Martin for a directed verdict, and plaintiff's motion for a new trial was overruled. The plaintiff's appeal on questions of law to this court followed. The plaintiff indicated no desire to prosecute the case against Diehl and we are not concerned with this defendant in the consideration of this appeal.

The single question before us is whether the trial court was justified in directing a verdict for McDonald and Martin. In considering this motion for a directed verdict the court was required to assume, for the purpose of the motion, the admission of all facts which the evidence tends to prove, and construe the evidence most strongly in favor of the plaintiff. Such motion presents purely a question of law and must be determined on undisputed evidence. 52 Ohio Jurisprudence (2d), 615, Section 120. The plaintiff is also entitled to the benefit of any reasonable...

To continue reading

Request your trial
11 cases
  • Gladon v. Greater Cleveland Regional Transit Auth.
    • United States
    • Ohio Supreme Court
    • 6 d3 Março d3 1996
    ...the entrant will lose the status of an invitee, and become either a licensee or trespasser. See Clary v. McDonald (1963), 120 Ohio App. 8, 11, 28 O.O.2d 169, 171, 200 N.E.2d 805, 808; Sweet v. Clare-Mar Camp, Inc. (1987), 38 Ohio App.3d 6, 9, 526 N.E.2d 74, 78. See, also, Restatement of Tor......
  • Joseph Herron v. Interstate Brands Corp.
    • United States
    • Ohio Court of Appeals
    • 25 d3 Janeiro d3 1995
    ... ... whether his presence in a particular area is with the consent ... of the owner or occupier of the premises. Id.; Clary v ... McDonald (1963), 120 Ohio App. 8, 200 N.E.2d 805 ... In ... Herron's view, the evidence presented below was ... ...
  • Paulus v. Corbly
    • United States
    • U.S. District Court — Southern District of Ohio
    • 22 d2 Dezembro d2 1992
    ...a guest upon the premises may change from an invitee to a licensee when the guest exceeds the limit of her invitation. Clary v. McDonald, 120 Ohio App. 8, 200 N.E.2d 805 (Pickaway Thus, the issue before the Court is whether Mr. Paulus exceeded the limits of his invitation at the motel. An i......
  • Milentije Miljkovic v. Greater Cleveland Regional Transit Authority
    • United States
    • Ohio Court of Appeals
    • 12 d4 Outubro d4 2000
    ... ... invitation, the entrant will lose the status of an invitee ... and become either a licensee or trespasser. See Clary v ... McDonald (1963), 120 Ohio App. 8, 11, 28 Ohio Op.2d 169, ... 171; Sweet v. Clare-Mar Camp, Inc. (1987), 38 Ohio ... App.3d ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT