Deckant v. City of Cleveland
| Decision Date | 31 May 1951 |
| Docket Number | No. 32461,32461 |
| Citation | 155 Ohio St. 498,99 N.E.2d 609 |
| Parties | , 44 O.O. 448 DECKANT v. CITY OF CLEVELAND. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. If a special instruction given by the court under Section 11420-1, General Code, correctly states the law pertinent to one or more of the issues of the case, the giving of it does not constitute error even though it is not a full and comprehensive statement of the law.
2. Where a special instruction to a jury is requested, which instruction is correct as to the law but is claimed to be erroneous because not full and complete, it is the duty of the court to consider such instruction in connection with all other special instructions given upon the same subject. (Paragraph two of the syllabus in Wymer-Harris Construction Co. v. Glass, Adm'x, 122 Ohio St. 398, 171 N.E. 857, 69 A.L.R. 517, approved and followed.)
Appellee, Sadie Deckant, hereinafter referred to as plaintiff, instituted an action against the appellant, city of Cleveland, hereinafter designated defendant.
In her petition filed in the Common Pleas Court of Cuyahoga County on August 21, 1947, plaintiff averred that defendant is a municipal corporation; that St. Clair avenue is a thoroughfare in defendant city extending in a general easterly and westerly direction; and that there is a double set of streetcar tracks in St. Clair avenue.
On July 22, 1947, just after 1 p. m., plaintiff was a passenger on the front seat of an automobile owned and driven by her stepfather, her mother being a passenger in the back seat thereof. The automobile was being driven eastwardly on St. Clair avenue and as it approached 170th street it was travelling between the southerly curb of St. Clair avenue and the most southerly streetcar rail thereon. As the automobile neared 170th street, there being other automobiles parked along the southerly curb of St. Clair avenue, it became necessary for the driver of the automobile in which plaintiff was a passenger to turn out from his line of travel on to the eastbound rails in order to pass the parked automobiles. After the front wheels of the automobile had turned out over the eastbound rails, one of the wheels came into contact with the most southerly rail and became caught by the rail by reason of the fact that it was maintained in a negligent manner in that the grade of the pavement immediately south of the southerly rail was approximately two inches lower than the grade of the rail.
When the wheel of the automobile became caught, the automobile went out of control of its driver, slid on to the northerly portion of St. Clair avenue and came into collision with a westbound automobile with such force that plaintiff was thrown out of the automobile on to the pavement and sustained certain injuries for which she claimed damages.
Defendant filed an answer in which it admitted its corporate capacity; that St. Clair avenue is a duly dedicated public thoroughfare extending in a general easterly and westerly direction; and that defendant maintains thereon a double set of streetcar tracks.
Defendant denied each and every allegation in plaintiff's petition except as to such admissions.
Upon the trial of the case there was very little controversy in the evidence.
It appeared that plaintiff's stepfather was proceeding in an easterly direction on St. Clair avenue and travelling on a brick pavement. He knew that such a pavement is slippery when wet, and it was raining very hard at the time of the accident. As a matter of fact, the rainfall was so heavy that he could not see the car tracks ahead of him and he was of the opinion that the cars parked at the south curb, one of which he turned out to pass, were stopped there because it was raining too hard to see ahead.
Where the driver of the automobile turned out, which was just west of East 170th street, the most southerly streetcar rail was two inches higher than the level of the brick pavement immediately adjacent to the rail. As he crossed the rail his car went out of his control and skidded about 50 or 60 feet to the north side of St. Clair avenue and collided with an automobile being driven in a westerly direction, as a result of which plaintiff received her injuries.
The driver of the automobile in which plaintiff was riding testified that he was driving about 20 to 25 miles per hour.
The jury returned a verdict for defendant, upon which judgment was entered, and plaintiff's motion for a new trial was overruled.
The Court of Appeals reversed the judgment of the trial court upon the sole ground that the trial court erred in granting defendant's special request to charge No. 1.
The cause is before this court upon the allowance of a motion to certify the record.
Coleman Kiss and Albert H. Kiss, Cleveland, for appellee.
Robert J. Shoup and E. Sheldon Wirts, Cleveland, for appellant.
There is but one question before this court. Did the trial court err to plaintiff's prejudice in granting defendant's special request to charge the jury before argument, as follows:
The present case was tried upon the theory, so far as plaintiff is concerned, that plaintiff's injuries were caused by defendant's failure to comply with Section 3714, General Code, which reads:
It is plaintiff's contention that the two-inch difference between the car rail and the street immediately adjacent thereto was the cause of the accident in which plaintiff was injured, and that defendant negligently violated Section 3714 in allowing such a condition to exist. On the other hand, it is defendant's contention that the street was in a reasonably safe condition, that it was open, in repair, and free from nuisance and that the sole cause of the accident was the negligence of the driver of the automobile, in which plaintiff was a passenger, in losing control of his car upon a slippery, wet brick pavement and in a rainstorm so violent that it was impossible to see ahead or to observe the tracks.
Plaintiff's counsel, in the closing argument to the jury, said:
It has long been settled in Ohio that a municipal corporation...
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