Delk v. Young

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: PER CURIAM.
• Citation: 35 N.E.2d 969
• Parties: DELK v. YOUNG.
• Decision Date: 09 January 1941

35 N.E.2d 969

DELK
v.
YOUNG.

Court of Appeals of Ohio, Second District, Clark County.

Jan. 9, 1941.

Action by Roy C. Delk against Niles Young for personal injuries. Judgment for plaintiff, and defendant appeals.-[Editorial Statement.]

Affirmed.

[35 N.E.2d 969]

Cole and Hodge, of Springfield, for plaintiff-appellee.

S. A. Bowman, of Springfield, for defendant-appellant.

PER CURIAM.

This matter is before us on an appeal from a judgment rendered in the Common Pleas Court in favor of the plaintiff based upon an automobile accident in which the plaintiff, while being conveyed in the car of the defendant, was injured.

There are certain facts that are not disputed and others concerning which there is divergence of the evidence submitted to the jury.

The petition alleges that the defendant was the owner and operator of a certain automobile; that Route 71, the road upon which the accident occurred, was a main

[35 N.E.2d 970]

market and inter-county highway, running generally in a northwesterly and southeasterly direction in Clark County; that at a point approximately 1 1/2 miles southeast of the village of New Carlisle, said highway was intersected by a culvert and bridge crossing the same; that at the time in question the road was in a deteriorated condition, that the surface thereof at all points approaching the bridge and culvert was choppy as evidenced by chuck holes and a gulley which caused a rise and fall in the level of the highway; that on the 7th day of May, 1936, plaintiff was riding in the rear seat as an invitee and passenger for hire and benefit to the defendant, not being a guest of defendant; that at said date the defendant was a candidate for nomination for the office of Sheriff and attended a political meeting for his benefit at New Carlisle; that solely at the request of the defendant, plaintiff accompanied defendant at said meeting for the purpose of aiding him in his political activities.

Plaintiff alleges that on said return trip he was riding in the rear seat o said car; that at the same approach to the bridge and culvert plaintiff was thrown against the top of the automobile and against a cross beam, causing the injuries complained of, the same being due to the negligence and careless acts of the defendant in the operation of his automobile at an unlawful rate of speed of at least 60 miles per hour; that the defendant, knowing that the condition of the highway was rough and choppy and unsafe for rapid speed, continued to operate the same at 60 miles per hour without any endeavor to lessen the speed; that as a result of said operation he was thrown against the top of the automobile and injured to his damage in the amount claimed.

The defendant answered admitting certain facts, among them that he did attend a political meeting at New Carlisle and further that on the return trip from the village plaintiff received some injuries.

As his first defense he denies that plaintiff was riding in the automobile as an invitee and passenger for hire and/or for the benefit of the defendant; denies that the political meeting was for the benefit of the defendant and denies that plaintiff accompanied the defendant solely at his request and solicitation or for the benefit of defendant. He denies the negligent operation of the automobile and that he was driving at least 60 miles per hour. He denies that, knowing that he was approaching the bridge and culvert and gulley, the continued to operate at such speed.

As a second defense he alleges that defendant was guilty of contributory negligence which directly and proximately caused his injuries, in that the plaintiff did not sit in the rear seat in a manner of an ordinarily prudent man but sat on the rear seat leaning over the back of the front seat between two people on the front seat; that the plaintiff did not remonstrate with or object to the defendant concerning the rate of speed at which he was driving.

For a third defense he alleges that if he were guilty of negligence, which he denies, the plaintiff joined in and assumed whatever risk there may have been due to the manner of the operating of the automobile, in that instead of sitting in the customary position in the rear seat he sat on the edge thereof.

For a fourth defense it is alleged that the plaintiff at the time of the accident was his guest, being a passenger in his automobile for his own pleasure and without making any return or conferring any benefit upon the defendant other than the mere pleasure of plaintiff's company.

The cause came on for trial and the jury having rendered a verdict in favor of the plaintiff, a motion was made for judgment notwithstanding the verdict for the reasons recited in said motion. There was also a motion for new trial in which ten separate errors are enumerated, which need not be here detailed.

At the termination of the plaintiff's case as well as at the termination of all the evidence, the defendant made a motion for directed verdict, which was by the court overruled. Thereupon the defendant gave notice of appeal to the Court of Common Pleas from the judgment rendered, said appeal being on ‘question of law and fact’. Such proceedings were further had that the case was lodged in our court.

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