Feldman v. Howard

• Decision Date: 25 January 1966
• Parties: , 34 O.O.2d 163 FELDMAN, Appellant, v. HOWARD et al., Appellees.
• Court: Ohio Court of Appeals

Page 65

5 Ohio App.2d 65

214 N.E.2d 235, 34 O.O.2d 163

FELDMAN, Appellant, v. HOWARD et al., Appellees.

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

Jan. 25, 1966.

Volkema, Redmond & Wolske, Columbus, for appellant.

Wiles, Doucher, Tressler & Martin, Columbus, for appellee Lloyd W. Howard, Jr. Clifford L. Rose and Walter J. Siemer, Columbus, for appellees Northway Taxicab Co. and William N. O'Hara.

GRAY, Judge.

This matter is in this court on an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County. A verdict was directed as to each of the three defendants at the conclusion of plaintiff's case.

It appears from the record that plaintiff, a woman fifty-two years of age at the time of the accident, was a mentally incompetent person living in the home of Mrs. Grace McCaskill, 184 E. Fifteenth Ave., Columbus, which home was supervised by the Social Services Section of the Columbus State School.

It is alleged in the petition as follows:

'Plaintiff further says that on or about the 27th day of December, 1959, she was mentally incompetent having been adjudicated an epileptic and committed to the Gallipolis State Institute on January 7, 1930, that she was transferred to Columbus State School on July 9, 1957, * * *.'

On the night of December 27, 1959, plaintiff, along with other women of similar mental condition, attended church on East Black Avenue in Columbus.

About 10 p. m. defendant Northway's cab arrived at the church to transport them home. The plaintiff rode in the rear seat with Mrs. McCaskill.

The cab driver stopped across the street from 184 E. Fifteenth Ave. Plaintiff alighted from the cab on the right side thereof, went to the front of the cab and started across the street; and, while in the street, she was struck by a motor vehicle operated by defendant Lloyd W. Howard, Jr. As a result thereof she suffered serious injuries.

The evidence shows that the night was dark and rainy, that she was struck in a poorly lighted area not at or near a crosswalk and that there were crosswalks at either end of the block which was of ordinary length.

Plaintiff alleges in her petition that:

'* * * defendants William N. O'Hara and Northway Taxicab Company were negligent in failing to exercise care for the safety of their passengers particularly this plaintiff.'

Plaintiff further alleges in her petition that:

'* * * the defendant Lloyd W. Howard, Jr., was negligent toward the plaintiff in failing to yield the right of way to the plaintiff; in failing to maintain a lookout for pedestrians, particularly the plaintiff; in driving at an excessive rate of speed, to-wit: 50 m. p. h.; in failing to abate said speed; and in failing to divert the course of travel of said Oldsmobile to avoid striking the plaintiff. * * *'

The assignments of error are as follows:

1. The court improperly directed a verdict for the defendants William N. O'Hara and Northway Taxicab Company.

2. The court improperly directed a verdict for the defendant Lloyd W. Howard, Jr.

3. The court improperly refused to set forth in writing separate findings as to fact and law requested by plaintiff.

4. The court improperly refused to allow certain testimony of Dr. Roger Gove in regard to plaintiff's mental capacity and effect of a seizure on an epileptic.

5. The court improperly refused to allow Mrs. McCaskill to testify that plaintiff had two epileptic seizures during the day of December 27, 1959.

6. The court improperly allowed a police officer to testify as to there being no traffic violation on the part of defendant Lloyd W. Howard, Jr.

The liability of defendant Lloyd W. Howard, Jr., will be discussed first. There is no evidence that this defendant ever knew or had met plaintiff prior to December 27, 1959; so he could not have known of her mental condition. According to the record, the first time he saw her was when she was just a few feet in front of his automobile just prior to impact.

Section 4511.48, Revised Code, reads, in part:

'Every pedestrian crossing a roadway * * * at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all traffic operating lawfully upon the roadway.

'* * *

'This section does not relieve the operator of a vehicle, streetcar, or trackless trolley from exercising due care to avoid colliding with any pedestrian upon any roadway.'

Section 4511.50, Revised Code, reads, in part:

'No pedestrian shall cross a roadway within a municipal corporation at a place other than a crosswalk except when crosswalks are an unreasonable distance apart.'

Crossing a street in a municipal corporation at a point other than at a crosswalk is negligence per se. See Smith v. Zone Cabs, 135 Ohio St. 415, 21 N.E.2d 336.

Even though she was guilty of negligence per se, it must still be determined whether such negligence was the proximate cause of her injuries. The Supreme Court, in Smith v. Zone Cabs, 135 Ohio St. 415, 21 N.E.2d 336, has spoken on this point in the following manner:

'The law presumes negligence from appellant's violation of the ordinance (Schell v. DuBois, Admr., 94 Ohio St. 93, 113 N.E. 664, L.R.A.1917A 710), but does not, from that presumption alone, presume that such negligence was the proximate cause of his injuries. Although the former is presumed as a matter of law, the latter must be proved as a matter of fact. 'Proximate cause and negligence are wholly different elements and should not be confused.' Blackford v. Kaplan, ante, 135 Ohio St. 268, at page 273, 20 N.E.2d 522, at page 526.'

Testimony of Dr. Gove, a psychiatrist, who treated plaintiff, was proffered but not admitted in the trial court. Part of his testimony was that plaintiff had the approximate mentality of a ten-year-old child.

The question now arises: By what standard shall we judge plaintiff in reference to her conduct in crossing the street at the time and place she was struck by the automobile driven by defendant Howard?

A majority of the courts passing on this question hold that evidence of mental derangement not amounting to total insanity should be considered by the jury in determining whether a plaintiff was contributorily negligent or not.

We believe that the plaintiff should be held to the exercise only of such faculties and capacities with which she is endowed by nature for the avoidance of danger.

While the evidence indicates that her actions were voluntary, even though impulsive and irrational in the sense of acting without forethought, it is apparent from the record that reasonable minds might differ upon the question of plaintiff's accountability for her own actions; and, therefore, the question is one of fact which should have been submitted to the jury.

See Baltimore & Potomac Rd. Co. v. Cumberland (1900), 176 U.S. 232, 20 S.Ct. 380, 44 L.Ed. 447; Seattle Electric Co. v. Hovden (C.C.A. 9, 1911), 190 F. 7; Noel v. McCaig (1953), 174 Kan. 677, 258 P.2d 234. We think the proposition here under discussion is very well stated in 38 American Jurisprudence 882, Section 201.

The trial court was requested to find conclusions of fact separately from conclusions of law and, in accordance with such request, found, in part, as follows:

'And further, that there is no evidence that the defendant Howard had any knowledge whatsoevery as to the defendant's [sic] disability and that so far as he was concerned, she would be guilty of negligence as a matter of law and preclude her from recovering against Mr. Howard.'

That was the sole ground stated by the trial court for its action in directing a verdict in favor of defendant Howard.

For the trial court to find that this mentally-deficient plaintiff was guilty of negligence as a matter of law, under the state of the record delineated above, was erroneous, and especially so when the trial court found plaintiff guilty of such negligence without recognizing that a question of fact remained to be determined by the jury as to whether such negligence on the part of plaintiff was the proximate cause of her injuries. See Smith v. Zone Cabs, 135 Ohio St. 415, 21 N.E.2d 336.

Since the trial court did not admit the testimony proffered in regard to plaintiff's mental competency, and since it directed a verdict in favor of defendant Howard and did not permit the submission to the jury of the question of the accountability of plaintiff for her actions at the time she was struck by the automobile operated by defendant Howard, the trial court committed prejudicial error which requires the reversal of its judgment in regard to defendant Howard.

We shall now advert to the matter of the liability of defendants O'Hara and Northway Taxicab Company. O'Hara is charged with failing to exercise care for the safety of this plaintiff. Expanding this, it is fair to state that plaintiff's contention is that O'Hara should have seen plaintiff to her doorstep or, at least, should have discharged plaintiff on the side of the street nearest her home.

There is the claim that plaintiff was entitled to special consideration at the hands of O'Hara because she was mentally incompetent and unable to take care of herself and that this was known to O'Hara.

Plaintiff was...