Dibert v. Ross Pattern & Foundry Development Co.

• Citation: 6 O.O.2d 73,105 Ohio App. 264,152 N.E.2d 369
• Court: United States Court of Appeals (Ohio)
• Decision Date: 06 December 1957
• Parties: , 6 O.O.2d 73 DIBERT, Appellee, v. ROSS PATTERN & FOUNDRY DEVELOPMENT CO., Inc., Appellant. *

Page 264

105 Ohio App. 264

152 N.E.2d 369, 6 O.O.2d 73

DIBERT, Appellee, v. ROSS PATTERN & FOUNDRY DEVELOPMENT CO., Inc., Appellant. ^*

Court of Appeals of Ohio, Champaign County.

Dec. 6, 1957.

Syllabus by the Court

1. A violation of the provisions of Section 4511.26, Revised Code, which govern vehicles traveling in opposite directions, is negligence per se.

2. The requirement of Section 4511.25, Revised Code, that motorists keep to the right except in certain specified instances is a specific requirement, the violation of which is ngligence per se.

3. The exception contained in Section 4511.25, Revised Code, that a vehicle need not be driven upon the right half of the roadway 'when the right half of the roadway is closed to traffic,' applies only when such portion of the roadway is closed by public authority; and 'the right half of the roadway' is not 'closed to traffic' as contemplated by such section when it is temporarily unavailable to ordinary vehicles because obstructed by a snow drift.

4. Where the right-hand lane of traffic of a roadway is closed by a snow drift and a motor vehicle enters the single left-hand lane of traffic and proceeds for some distance in such lane, and another vehicle approaches from an opposite direction, the presence of the former vehicle in the left-hand lane of traffic constitutes a continuing danger which ordinary care on the part of the driver should have anticipated, and there is no sudden emergency brought on by the entrance of the latter vehicle into such lane of traffic.

5. An instruction to the jury that 'any driver of an automobile on the highway, whether then in the exercise of due care or not, may assume that others driving on the highway will observe the terms of' Section 4511.25, Revised Code, requiring motorists to keep to the right, is a proper statement of the law.

6. In an action to recover for injuries sustained by the plaintiff in a motor vehicle collision, plaintiff's medical witnesses may give their opinions as to a causal relationship between the plaintiff's injuries and his condition at the time of the trial where the charge to the jury correctly and properly instructs the jury as to such opinion's significance.

7. In an action to recover for damages sustained by plaintiff in a collision of two motor vehicles, allegations that plaintiff has been permanently injured, that he was earning a certain sum per month at the time of the collision and that he has since been unable to work except for a specified temporary period are fully adequate to bring in issue the matter of lost earnings; and either the plaintiff, if mentally able, or his wife is competent to testify upon such subject, and the best evidence rule does not render such testimony inadmissible, whether or not payroll records are available to show plaintiff's earnings at the time of the injury.

8. In such case, income or compensation other than lost earnings claimed are irrelevant; and evidence of any pension available to plaintiff is not admissible nor is such evidence rendered admissible for any bearing it might have upon the question of when plaintiff might have been retired in the ordinary course of his employment.

9. In such case, there is no requirement that items of damage for which recovery is sought were paid to or for professionals, in order to be recoverable; and expenses incurred by persons in taking plaintiff to the hospital constitute a proper element of plaintiff's damage, where properly pleaded.

10. Damages of such a nature that they do not follow as a necessary consequence of the injury complained of must be specially pleaded; and, in an action to recover damages for injuries sustained in a motor vehicle collision, evidence as to the cost of remodeling plaintiff's residence in order to enable his wife to care for him is inadmissible, where no mention is made of such item in the petition upon which plaintiff went to trial.

11. The testimony of an experienced automobile mechanic, properly qualified as an expert, relating his opinion as to the angle of impact of two colliding motor vehicles which he observed after the time of the collision is admissible within the reasonable scope of opinion testimony.

12. The separation of witnesses is a matter within the sound discretion of the trial court.

Karl E. Paulig, Donald M. Gibbs, Urbana, and Durfey, Martin, Browne & Hull, Springfield, for appellant.

Grace Fern Heck and William E. Bailey, Springfield, for appellee.

CRAWFORD, Judge.

This is an appeal on questions of law from a judgment for the plaintiff, appellee herein, for personal injuries and property damages to an automobile in the sum of $37,500.

The evidence indicates that about 7 a. m. on December 1, 1950, plaintiff was proceeding northwardly on state route No. 69, just north of the intersection of Runkle Road, in a 1949 Buick four-door sedan; that at the same time and place Harley Bernard Blakely, an employee of the defendant corporation, appellant herein, while in the course of his employment, was proceeding southwardly in a 1946 Chevrolet two-ton stake truck weighing approximately 6,800 pounds, loaded with 3 or 4 tons of aluminum castings; that an unusually heavy snow had covered a considerable section of the highway at that point with a snow drift variously estimated at approximately 1 to 3 feet on the east side, and approximately 2 to 5 feet on the west side of the highway; that a snow plow had cut a path variously estimated at approximately 7 to 12 feet in width; that this path or clearing was, according to plaintiff's witnesses and some of defendant's witnesses, either wholly or principally on the east half or north bound portion of the 20 foot pavement of state route No. 69; that the intersection of state route No. 69 with Runkle Road, which runs roughly east and west, was clear of drift, although the dimensions of such clear space north from the intersection were in dispute; that at some point north of the intersection, variously estimated by the witnesses at approximately 80 feet to 200 feet, the two vehicles collided, the left front corner of the truck and the left rear quarter of the automobile coming together; that immediately after the collision the right-hand portions of both vehicles were in or against the snow drifts on their respective sides of the cleared space, the truck being parallel to the highway and the automobile either parallel or at an angle of 20 or 30 degrees to the highway, the truck being south and somewhat west of the automobile, with the rear of the truck some 8 or 10 feet south of the automobile and at such distance from the rear of the Buick as to afford barely enough space for vehicles to pass between them; and that the plaintiff was lying upon the highway, gravely and permanently injured.

The carefully prepared briefs have discussed separately the 32 assignments of error. In the interest of clarity we shall in general follow the same plan.

1.

The record shows a statement by the court, apparently silently acquiesced in by three jurors, that during a recess he and they had held a conversation in chambers on a subject wholly unrelated to the case on trial. There is no showing that anyone was prejudiced thereby.

Nor does the record show that counsel complained about the incident at the time. He cannot wait until an adverse verdict is returned and then initiate his objection.

2.

Plaintiff's witness Charles Rust, an experienced automobile mechanic who arrived on the scene soon after the collision had occurred, testified that from his examination of the damages to the two vehicles it was his opinion that 'the blow would have had to have been at an angle of about 20 or 30 degrees, or approximately the same angle that the car was in when I picked it up.'

The witness was properly qualified as an expert in his field. This particular question and answer appear to be within the reasonable scope of opinion testimony, being essentially a characterization of the damage which the witness personally observed.

It should be noted that the witness Herbert Falkner was later permitted to testify to the same effect without objection.

And this testimony is not inconsistent with defendant's driver's version of the collision, that the plaintiff's car ran into the snowdrift on the east, throwing the rear end in front of the truck.

3.

Plaintiff's exhibit B was a map of the two highways, state route No. 69 and Runkle Road, prepared by an engineer and drawn to scale. In the course of the testimony of certain witnesses counsel had them mark the map with small circles and crosses in various colors to indicate their respective recollections as to the location of the snowdrift and of the open lane which had been cleared through the drift.

The practice of permitting recorded testimony of this type to go to the jury is often frowned upon. However, in this respect our examination of the exhibit in question and of the evidence produced on both sides of the case indicates that these small marks relating to one phase of the testimony, if erroneous, could hardly have been prejudicial.

Counsel's particular objection here is that this procedure constituted a violation of the order of separation of the witnesses, which had been made by the court, and that subsequent witnesses were thereby enabled to perceive the testimony of earlier witnesses. Such matters, including the order of separation, rest in the sound discretion of the court. Again, our examination of all the evidence and particularly of this exhibit, which shows among other things that no two witnesses agreed completely, fails to indicate an abuse of discretion.

4.

It is objected that plaintiff's medical witnesses were permitted to give their opinions as to a causal relationship between his injury and his present condition.

From time immemorial such witnesses have testified on such matters, and it is a technical subject upon which their testimony is peculiarly appropriate and helpful.

The...