Eisenhuth v. Moneyhon

Citation161 Ohio St. 367,53 O.O. 274,119 N.E.2d 440
Decision Date05 May 1954
Docket NumberNo. 33570,33570
Parties, 53 O.O. 274 EISENHUTH v. MONEYHON.
CourtUnited States State Supreme Court of Ohio

Syllabus by the Court.

1. The standard of conduct as to due care to be exercised by one for the protection of others may be specifically established by legislative enactment; by judicial decision; or, in the absence of legislative enactment or judicial decision, by a consideration of the facts and circumstances of a particular case.

2. Where a legislative enactment imposes upon any person a specific duty for the protection of others, and his neglect to perform that duty proximately results in injury to such another, he is negligent per se or as a matter of law.

3. Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case.

4. The provisions of Section 6307-38, General Code, that a person shall not turn a vehicle or trackless trolley from a direct course on a highway unless and until such person 'shall have exercised due care to ascertain that such movement can be made with reasonable safety to other users of the highway * * * or after giving an appropriate signal in the event any traffic may be affected by such movement,' or that a signal of intention to turn right or left shall be given 'in sufficient time in advance of the movement indicated to give ample warning to other users of the highway who would be affected by such movement,' are not specific requirements, the violation of which constitutes negligence per se and it is error for a trial court to charge, in a case involving the obligation to observe such provisions of the statute, that a person failing to comply with such requirements is guilty of negligence per se.

This is an action for damages for personal injuries to the plaintiff resulting from a collision between an automobile, owned and operated by the defendant, and another automobile operated by Guy Eisenhuth, brother of the plaintiff, in which the plaintiff was riding.

It is alleged in the petition that on March 7, 1949, plaintiff's brother was operating his car in a westerly direction on route No. 52 in Brown county; that, as they came up behind the automobile of defendant, which was also being operated in a westerly direction, plaintiff's brother signaled to defendant of his intention to pass; and that, while plaintiff's car was passing the defendant's automobile, the defendant drove his automobile to the left across the middle line of the highway, resulting in a collision between the two automobiles and injuries to the plaintiff.

Plaintiff's amended petition sets out three specifications of negligence on the part of the defendant as follows:

'1. In that the defendant Clay C. Moneyhon failed to give way to the right in favor of the automobile in which plaintiff was riding as a passenger after an audible signal was given to the defendant that the automobile in which plaintiff was riding was to overtake and pass defendant's automobile.

'2. In that defendant turned his automobile from a direct course upon said highway No. 52 without making certain he could make such movement or turn with safety.

'3. In failing to give any signal of his intention to turn left across the middle line on said highway onto the left side of said highway, and drove his said automobile into and against the automobile in which plaintiff was riding and collided his automobile into the automobile in which plaintiff was riding.'

Defendant alleges in his answer and testified on the trial that, prior to the collision, he was operating his automobile in a westerly direction on route No. 52 in Brown county, with the intention of making a lefthand turn at an intersecting highway leading to Boudes Ferry; that, as he approached the intersection, he gave a leftturn signal with his arm when the car in which plaintiff was riding was 300 feet to the rear; that, after starting to turn to the left at said intersection, defendant suddenly heard an automobile horn by the side of him; that he immediately either stopped or almost stopped his automobile; and that the car in which plaintiff was riding sideswiped the left side of his car, left the roadway and overturned.

The driver of the car in which plaintiff was riding testified that he sounded his horn when he was from 100 to 200 feet behind defendant's car; that he was traveling at a speed of about 45 or 50 miles per hour; and that when his front wheels were opposite the rear wheels of the defendant's car, defendant's car suddenly cut into the right side of his car.

A verdict in the sum of $13,000 and signed by nine members of the jury was returned for the plaintiff, and judgment was entered on the verdict. Defendant filed a motion for new trial which was overruled. The defendant appealed to the Court of Appeals for Brown county, which court affirmed the judgment of the Common Pleas Court.

The cause is now in this court by reason of the allowance of a motion to certify the record.

Benoy & Sebastian, Columbus, for appellant.

Long & Bloom, Cincinnati, and Robert V. Bagby, Georgetown, for appellee.

HART, Judge.

The principal question presented is: Does Section 6307-38, General Code, Section 4511.39, Revised Code prescribe a specific requirement, the violation of which constitutes negligence per se, and did the court err in its charge with respect to the duties of the defendant as defined subdivision (b) of such section?

Defendant's chief claim of error is that the trial court erred in its charge to the jury, both before and after argument, as to negligence per se.

Before argument, at the request of counsel for plaintiff, the court gave the following special charge:

'I charge you that Section 6307-38 of the General Code of Ohio provides as follows: * * * (a) No person shall turn a vehicle or trackless trolley from a direct course upon a highway unless and until such person shall have exercised due care to ascertain that such movement can be made with reasonable safety to other users of the highway and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement or after giving an appropriate signal in the event any traffic may be affected by such movement.

'(b) A signal of intention to turn right or left shall be given in sufficient time in advance of the movement indicated to give ample warning to other users of the highway who would be affected by such movement.

'* * *

'If you find that the defendant, Clay C. Moneyhon, failed to give any signal of his intention to turn left in sufficient time in advance of the movement indicated to give ample warning to other users of the highway who would be affected by such movement, he was guilty of negligence as a matter of law. * * *'

In the general charge the court gave the following instruction to the jury:

'When the state Legislature enacts legislation for the protection of the public in a statute and imposes a duty upon a person or makes specific requirements of a person, a violation of such legislation is negligence in itself or negligence as a matter of law. * * *

'* * *

'The second part of this statute [Section 6307-38(b)] which requires a signal of intention to turn right or left in sufficient time in advance of the movement indicated to give ample warning to other users of the highway who would be affected by such movement, defines a specific requirement of the operator of a motor vehicle, a violation of which, is negligence per se, negligence as a matter of law, and therefore, if you find by a preponderance of the evidence that the defendant, Moneyhon, did make a left turn across the center line of the highway without giving any signal of his intention to make a left turn in sufficient time in advance of the left turn to give ample warning to the other users of the highway, including the driver of the automobile in which the plaintiff was riding, them the defendant, Moneyhon, would be guilty of negligence as a matter of law.'

It is axiomatic in the law of negligence that due care to avoid injury to others is required. One of the problems involved in any negligence case is to determine what constitutes due care. The standard of conduct as to due care may be specifically established by legislative enactment; by judicial decisions on identical or similar facts; or, in the absence of legislative enactment or judicial decision, by a consideration by the trial judge or jury of the facts and circumstances of the particular case. 2 Restatement of the Law of Torts, Section 285, Comment d; Baltimore & Ohio R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 72 L.Ed. 167, 56 A.L.R. 645; Harper on Torts, 187, Section 78. In the latter case, unless the person whose conduct is under consideration is a child or insane person the standard of conduct required is that of a reasonably prudent person under the same or similar circumstances, there being contemplated a fallible human being exercising those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of all persons.

In the instant case we are called upon to consider a standard of due care allegedly fixed by legislative enactment. When such standard of conduct is so fixed, it is final and conclusive except in cases where the enactment is so vague or so dependent upon a variety of facts and circumstances as to require definition by a court or jury before it may be applied to the facts of a particular case.

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