Erdman v. Mestrovich

• Decision Date: 14 March 1951
• Docket Number: No. 32115,32115
• Citation: 155 Ohio St. 85,44 O.O. 97,97 N.E.2d 674,31 A.L.R.2d 1417
• Parties: , 31 A.L.R.2d 1417, 44 O.O. 97 ERDMAN v. MESTROVICH.
• Court: Ohio Supreme Court

Page 85

155 Ohio St. 85

97 N.E.2d 674, 31 A.L.R.2d 1417, 44 O.O. 97

ERDMAN v. MESTROVICH.

No. 32115.

Supreme Court of Ohio.

March 14, 1951.

Syllabus by the Court

1. The 'assured clear distance ahead,' referred to in Section 6307-21, General Code, constantly changes as the motorist proceeds and is measured at any moment by the distance between the motorist's car and the limit of his vision ahead, or by the distance between the motorist's car and any intermediate discernible static or forward moving object in the street or highway ahead constituting an obstruction in the motorist's path or lane of travel.

2. Violation of the assured-clear-distance-ahead rule consists of the operation of a motor vehicle at a greater speed than will permit the operator thereof to bring it to a stop within the assured clear distance ahead, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance within such clear distance and into his path or lane of travel of an obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.

3. Where a pedestrian crossing a street intersection enters the path or lane of travel of a motor vehicle approaching the intersection at a right angle to the path of the pedestrian and the pedestrian by his act enters suddenly the vehicle operator's assured clear distance ahead, at a point less distant than the forward limit thereof, and is struck by the vehicle, a charge to the jury in a personal injury action by the pedestrian against the operator predicated on a violation of the assured-clear-distance-ahead rule should not be given, unless there is evidence tending to show that the pedestrian came into the operator's assured clear distance ahead at a point sufficiently distant ahead of the motor vehicle as to have permitted the operator, in the exercise of ordinary care, to have stopped his motor vehicle before striking the pedestrian.

This is an action for damages for personal injuries sustained by the plaintiff before daylight on November 8, 1947, when he was struck while crossing a Toledo, Ohio, street intersection by a car operated by the defendant.

Central avenue, a state highway and main thoroughfare in that city, extends east and west and is intersected from the south by Auburn avenue which dead-ends into the south side of Central avenue. This intersection is located in a semiresidential district and Woodland Cemetery lies on the north side of Central avenue opposite the T intersection of these streets. There is an entrance to the cemetery from the north side of Central avenue, which entrance is almost opposite the center of Auburn avenue. Traffic at this intersection at the time of the accident was controlled by four electric signal lights, one of which was located on each of the four corners of the intersection. The traffic light located north of Central avenue and east of the cemetery entrance driveway is visible to the south and controls pedestrian and vehicular traffic moving north on Auburn avenue into the intersection which it makes with Central avenue. The light located on the north side of Central avenue and west of the cemetery entrance driveway is visible to the east and controls pedestrian and vehicular traffic moving west on Central avenue. The four traffic lights are synchronized, so that when the lights on the southeast and northwest corners of the intersection governing traffic moving east and west on Central avenue are green those on the northeast and southwest corners of the intersection governing traffic moving north and south are red and vice versa. These lights are timed to display a green signal for Central avenue traffic for 35 seconds and then change, with a two-second yellow-light interval, to a green signal lasting 25 seconds for Auburn avenue traffic.

The testimony discloses that at the time of the accident the defendant, age about 26, accompanied by two companions, one of whom was riding in the front seat with him, was operating his car westward on Central avenue, being at the time under the control of the northwest traffic light, and proceeding through the intersection in question at the rate of from 20 to 25 miles per hour. It was dark and foggy that morning.

The plaintiff, age 71, on his way to work, proceeded on foot across Central avenue from south to north on the west side of the intersection, either on the cross-walk or a few feet west of it, and had reached a point near the north side of Central avenue.

When defendant's automobile was either almost through the intersection or just leaving it and the plaintiff was within five to ten feet or a half-car length from the north curb of Central avenue, plaintiff was struck a few feet west of the crosswalk by the right front part of defendant's car.

The plaintiff, although considerably confused as to the status of the traffic lights, claimed that when he started across the intersection he had the green light; that he did not see defendant's car approaching from his right until it struck him. The defendant testified that he could see the intersection lights when he was several hundred feet east of the intersection, that the light for his lane of travel turned to green just before he entered the intersection and that when he was completely through or just leaving the intersection plaintiff suddenly ran in front of his car from a position five to ten feet ahead of the car and slightly to the left. The defendant applied his brakes and swerved his car to the left and center of the street, but was unable to avoid striking plaintiff who appeared to the defendant to be a few feet west of the crosswalk and near the north curb of Central avenue.

The court, in its general charge, instructed the jury on the subject of negligence of the defendant, contributory negligence on the part of the plaintiff and proximate cause. At the conclusion of the general charge, counsel for plaintiff requested the court 'to charge the jury on the assured clear distance ahead rule as prescribed in Section 6307-21 and to read to the jury General Code Section 6307-21 pertaining thereto.' The court declined to so charge.

The jury returned a general verdict for the defendant and, in answer to interrogatories submitted by the defendant, found that the plaintiff was guilty of negligence which directly caused or directly contributed to the collision in which he was injured.

A judgment for defendant was entered on the verdict. A motion for a new trial was overruled.

An appeal was taken to the Court of Appeals on questions of law. That court reversed the judgment and remanded the cause to the trial court for a new trial.

The Court of Appeals in its appraisal of the facts said:

'The verdict is not manifestly against the weight of the evidence. It tends to show that the plaintiff was proceeding across the street against the red light and was not on the crosswalk.'

The trial court, in its general charge, correctly instructed the jury as to alleged acts of negligence charged against the defendant relating to excessive speed, violation of duties as to right of way at the intersection, lookout for pedestrians using the intersection and failure to sound warning. The court also correctly instructed the jury on the issue of contributory negligence and on the issue of proximate cause.

The case is in this court by reason of...