DiFederico v. Reed

• Decision Date: 15 April 1969
• Citation: 255 N.E.2d 869,21 Ohio App.2d 137
• Parties: , 50 O.O.2d 240 DiFEDERICO, Exr., Appellant, v. REED, Appellee.
• Court: Ohio Court of Appeals

Page 137

21 Ohio App.2d 137

255 N.E.2d 869, 50 O.O.2d 240

DiFEDERICO, Exr., Appellant, v. REED, Appellee.

Court of Appeals of Ohio, Tenth District, Franklin County.

April 15, 1969.

Syllabus by the Court

1. The assured-clear-distance-ahead rule (Section 4511.21, Revised Code), which requires that a motor vehicle be operated at a speed not greater than will permit the operator to stop within the distance between his vehicle and a reasonably discernible object obstructing his path or line of travel, is applicable in those instances where a 'discernible' object is ahead of a motorist and within his 'directional line of travel'; and it makes no difference in the applicability of such rule that the 'object' is a pedestrian.

2. The assured-clear-distance-ahead rule (Section 4511.21, Revised Code) is not applicable unless the 'object' which obstructs such line or path is reasonably discernible in time to permit the operator of the vehicle to avoid it.

3. A pedestrian walking along or on a highway must exercise reasonable care for his own safety considering conditions on the highway at the time.

4. A pedestrian who walks along a highway shall 'where practicable' face oncoming traffic and shall 'exercise due care' to avoid traffic approaching. Whether usable walks or paths parallel the highway, whether it is practical to face traffic and whether a pedestrian walking along a highway uses due care are matters of fact. (Section 4511.50, Revised Code.)

5. In a motor vehicle negligence action in which damages are sought for the death of a pedestrian who was struck from the rear while walking at or near the right-hand edge of a four-lane divided highway, with traffic approaching from the rear, on a dark and rainy midwinter night after midnight and while waring dark clothing, the questions whether such pedestrian was a discernible object, in the directional line of travel of the colliding vehicle, who entered such line of travel sufficiently far enough ahead to enable the operator of such vehicle to stop, whether such operator's assured clear distance ahead was suddenly cut down, whether it was practical for such pedestrian to face oncoming traffic, whether such pedestrian used 'due care' while so walking, and whether such pedestrian was contributorily negligent, are properly for the jury under appropriate instructions.

Williams, Murray, Deeg & Ketcham and James D. Booker, Columbus, for appellant.

Power, Griffith, Jones & Bell, S. Noel Melvin and Stanley S. Smith, Columbus, for appellee.

TROOP, Judge.

Shortly after midnight on February 10, 1965, Mrs. Anne DiFederico, plaintiff-appellant's decedent, and her husband, Julio DiFederico, plaintiff-appellant and executor of his wife's estate, left Stouffer's University Inn where they were guests and walked north on the area west of the edge of Olentangy River Road, crossed the road at Riverview Drive and continued north along the road at or near the east edge thereof. A short distance north of Riverview Drive, Mrs. DiFederico, who was walking to the left of her husband, was struck from the rear by an automobile driven by defendant, appellee herein, Donald M. Reed, and died of the injuries sustained in the accident. Olentangy River Road is a 4-lane divided highway carrying two lanes north, each 11 feet wide, and two lanes south, each 11 feet wide. There is a grass median strip 8 feet wide. The paved road has white lines on the edges.

The case was tried to a jury, which returned a verdict favorable to the defendant, from which verdict and the judgment entered pursuant thereto, filed May 2, 1968, this appeal is taken on questions of law. A motion for a new trial was overruled and entry filed accordingly August 14, 1968.

Plaintiff's appeal is predicated on three assignments of error: (1) The trial court should have submitted only one form of verdict to the jury, and that favorable to the plaintiff, because the defendant was negligent as a matter of law, and his negligence was the sole proximate cause of the decedent's death; (2) the court erred in refusing to give plaintiff's requested special instruction numbered 8, charging that defendant violated the assured-clear-distance-ahead rule and was guilty of negligence as a matter of law; and (3) the court erred in giving special instruction numbered 7, requested by defendant, instructing the jury to determine whether a usuable walk or path existed along the roadway where the accident occurred.

The formal asignments of error focus attention on the decision of the trial court to submit the questions of defendant's possible violation of the assured-clear-distance-ahead rule, and the possible contributory negligence of the decedent, to the jury. Plaintiff argues that both questions should have been decided by the court as a matter of law in view of the evidence submitted during the course of the trial. At the risk of oversimplification, the submission of those questions will be the approach in this review.

To call attention to the classic Ohio assured-clear-distance-ahead cases, familiar to bench and bar, is to become trite, but in the instant case a review of Smiley v. Arrow Spring Bed Co. (1941), 138 Ohio St. 81, 33 N.E.2d 3, 133 A.L.R. 960; McFadden, Admx., v. Elmer C. Breuer Transportation Co. (1952), 156 Ohio St. 430, 103 N.E.2d 385; and Bickel v. American Can Co. (1950), 154 Ohio St. 380, 96 N.E.2d 4, may prove to be a useful exercise. Smiley tells us that the assured-clear-distance statute is a safety measure requiring a speed of operation not greater than will permit the operator to stop within the distance between his vehicle and a 'discernible object obstructing his path or line of travel.' Smiley also provides for relief from the rule when the driver's assured clear distance is suddenly cut down 'which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.'

McFadden provides the rule that failure to comply with the assured-clear-distance rule is not a question for the trier of the facts where there is 'no substantial evidence' (paragraph one of the syllabus) that (1) the object with which the operator collided was ahead of him in his lane of travel, (2) that it was 'reasonably discernible,' and that (3) it came into his lane sufficiently ahead of him to have made it possible, in the exercise of ordinary care, to stop and avoid a collision. It is emphasized that Smiley speaks of a 'discernible' object and McFadden modifies by saying a 'reasonably discernible' object. We note also that 156 Ohio St. at page 435, 103 N.E.2d at 388 the court, as if to clarify, says:

'If, however, conflicting evidence is introduced as to any one of such elements necessary to constitute a violation, a jury question is created.'

Bickel adds only that the discernible object may be static or moving ahead at a normal speed or at a slow speed.

At this point a look at two basics is necessary, the 'object' and the 'path ahead.' Courts have confused the path concept by using slightly differing language, i. e., 'path or line of travel,' 'lane of travel,' and, in rarer instances, 'line of vision.' The recent decision by the Supreme Court in Pallini v. Dankowski (1969), 17 Ohio St.2d 51, 245 N.E.2d 353, dispels any confusion resulting from the differing terms. In paragraph one of the syllabus, the court says that 'ahead' as used after 'assured clear distance' in the first paragraph of Section 4511.21, Revised Code, 'means to the front of and within the directional line of travel of a motorist whose conduct allegedly violates such statute.' At page 55, 245 N.E.2d at 357, Judge Herbert comments on the term used in Smiley and says:

'* * * If all traffic lanes were exact width of the vehicles moving therein, no problem could result. Since such is not the case, however, a discernible object could be within a motorist's traffic lane of travel, but not within his directional line of travel, and statute would have no application.'

This new 'directional line of travel' concept has important impact on assured-clear-distance-ahead problems, especially those involving pedestrians.

Whether the object in the directional line of travel is 'discernible' or 'reasonably discernible' generally presents no problem so long as the trial court is dealing with a road grader, an unlighted truck or trailer, a roll of steel, or even an oil drum, but much difficulty arises when the object is a smaller object such as a pedestrian, and the pedestrian problem becomes much more acute in these days of expressways, 4-lane divided highways, and faster moving vehicles.

Not only have the ecisions of the courts given us some clean-cut examples of discernible objects, but in those cases the courts also have consistently held that fact to be controlling in finding a violation of the assured-clear-distance-ahead rule as a matter of law. Illustrative of this group of cases is the road grader case, Carpenter v. McCourt Construction Co. (1957), 106 Ohio App. 67, 153 N.E.2d 443. In contrast to the cases involving the clearly discernible objects, we note the 'hole in the road' cases where discernibility is a real question. Novy, Admrx., v. Cleveland (1957), Ohio App., 140 N.E.2d 19, 76 Ohio Law Abst. 137, is a case in which a directed verdict was refused, which the Court of Appeals said was proper because the evidence was such 'that reasonable minds could differ as to the discernibility of the hole, within the meaning of the assured clear distance rule, the court did not err in refusing to direct a verdict for defendant.' A later case, Applegate, Admx., v. Harshman (1962), Ohio App., 186 N.E.2d 763, 89 Ohio Law Abst. 567, suggests that the trial court was entirely right in refusing to charge on assured clear distance ahead. The headnote rule is as follows:

'2. The assured clear distance rule is not applicable unless it be shown that the defect is discernible in time to permit the driver to avoid it.'

In those cases, any many others, the...