Engler v. Reed

• Decision Date: 11 May 1936
• Parties: ENGLER v. REED.
• Court: Ohio Court of Appeals

4 N.E.2d 170

53 Ohio App. 15

ENGLER v. REED.

Court of Appeals of Ohio, Sixth District, Sandusk.

May 11, 1936

Syllabus by the Court .

1. In a personal injury action arising out of an automobile collision, brought by a guest passenger of one of the automobiles against the driver of the other, where there is no evidence showing that an occasion arose for the guest to do anything in the way of protest to the driver of the car in which she was riding, or otherwise, contributory negligence is not involved in the case, and it is prejudicial error for the trial court to charge the jury thereon.

2. In a case involving contributory negligence, it is error to charge the jury that the plaintiff must remove the inference or presumption of contributory negligence arising from the evidence produced in her behalf, the law requiring only in such case that she produce evidence which equals or counterbalances the inference or presumption so arising.

Stahl Stahl & Stahl, of Fremont, for appellant.

Harry Garn, of Fremont, for appellee.

LLOYD Judge.

This action was brought in the court of common pleas by appellant Maud Engler, to recover damages for personal injuries alleged to have been proximately caused by the negligence of the decedent Wolf. From the judgment therein entered upon a verdict in favor of the appellee administrator, plaintiff appeals.

On March 6, 1935, appellant was a guest passenger in an automobile owned and driven by a Dr. Boyce. Also riding in the automobile were Mrs. Boyce, a minor son of Dr. and Mrs Boyce, and a Mrs. Swint. Mrs. Engler sat in the front seat at the right of Dr. Boyce, the others sitting in the rear seat. They lived in Fremont and were on their way to Toledo on United States route No. 20. About seven miles west of Fremont, and not within any municipality, route No. 20, on which is a 20-foot concrete pavement, intersects Lindsey road.

Approaching the intersection from the east the pavement on route No. 20 curves or jogs to the north about 10 feet, and approaching from the west, jogs approximately the same distance to the south-the pavement east of the intersection being about 10 feet farther to the south than it is on the west side thereof, making the concrete pavement approximately 30 feet wide at the point of intersection.

As Boyce, driving on the north side of route No. 20, approached the intersection from the east, Wolf, driving on the south side of route No. 20, was approaching the intersection from the west. When Wolf reached the intersection of route No. 20 and Lindsey road, he turned to the left across the northerly half of the pavement, intending to enter Lindsey road, and while doing so was struck by the Boyce car, resulting in the death of Wolf and the alleged injuries of which Mrs. Engler complains.

In her petition Mrs. Engler charges that Wolf was negligent in attempting to turn left across United States highway No. 20, onto Lindsey road, when such movement could not be made in safety; in turning left without passing to the right of the center line of Lindsey road; in failing to keep a proper lookout, and in making a turn to the left without first giving a signal visible from the outside of his automobile; his negligence being the alleged proximate cause of her injuries. All of this was denied by appellee, who affirmatively alleged that appellant was guilty of contributory negligence. Counsel for appellant claim in their brief that the verdict and judgment in favor of appellee are manifestly against the weight of the evidence, that the trial judge erred in submitting to the jury the issue of contributory negligence, and that if this issue were involved the trial court erred in its charge to the jury in relation thereto.

The witnesses testify that Boyce was proceeding along route No 20 from 45 to 50 miles an hour. They agree that the weather, although somewhat cool, was clear;...