Francis v. Bieber

• Decision Date: 05 April 1967
• Docket Number: No. 40114,40114
• Citation: 225 N.E.2d 251,10 Ohio St.2d 65
• Parties: , 39 O.O.2d 52 FRANCIS, Appellant, v. BIEBER, Appellee.
• Court: Ohio Supreme Court

Page 65

10 Ohio St.2d 65

225 N.E.2d 251, 39 O.O.2d 52

FRANCIS, Appellant, v. BIEBER, Appellee.

No. 40114.

Supreme Court of Ohio.

April 5, 1967.

Syllabus by the Court

1. An emergency which will relieve a motorist of his duty to drive on the right side of the road as required by Section 4511.25 of the Revised Code must arise as the result of something over which he has no control. (Spalding v. Waxler, 2 Ohio St.2d 1, 205 N.E.2d 890.)

2. Where from the evidence reasonable minds may reach different conclusions upon any material question of fact, such question of fact is for the jury.

3. Where a defendant motorist, at about 1 a. m., is driving in a two-lane highway, covered with snow and ice, and proceeding over the crest of a hill sees two parked cars occupying a portion of the opposite lane of travel and a person waving a flashlight stepping into the motorist's lane of travel and the defendant, in an attempt to avoid striking such person, applies the brakes of his automobile, loses control, and it skids forward and sideways across the center line of the highway, into the first of the two parked cars causing injury to plaintiff, who was at the rear of the frist car, there are presented certain questions for determination by a jury, under proper instructions of the court, among them being (1) whether the sudden emergency was or was not of the defendant's own making, (2) whether the defendant, when confronted with the sudden emergency, exercised reasonable care under the circumstances, and (3) whether the assured-clear-distance-ahead doctrine, Section 4511.21 of the Revised Code, applies.

4. Where a defendant is driving his car with reasonable care commensurate with the circumstances and a person steps into the defendant's lane of travel within the assured-clear-distance-ahead, the defendant may be confronted with a sudden emergency which may warrant a finding of fact, under proper instructions by the court, such as will excuse compliance with Section 4511.25 of the Revised Code.

This is an action in tort to recover for personal injuries. Plaintiff filed his amended petition in the Court of Common Pleas of Geauga County, alleging in substance that on or about December 19, 1960, at approximately 1 a. m., he was standing between two automobiles, one immediately behind the other, on the southerly side of Crackle Road, headed east, pouring gasoline into the front automobile, the rear car being his own. The petition alleges that defendant was driving an automobile in a westerly direction 'at a speed greater than was reasonable or proper, having due regard to the traffic, surface, and width of the street and other conditions then and there existing, south of the center line of Crackle Road, so as to collide with the automobile into which the plaintiff was pouring gasoline, causing it in turn to be thrown against this plaintiff, causing him serious injury.'

Then follow further allegations in respect to the nature and extent of his injuries, expenses, loss of earnings, pain and suffering.

In her amended answer, defendant admits the collision; that plaintiff was injured; the date, place and time of the occurrence; and alleges that the road was 'snowy, icy and slippery'; that as she drove westerly over the crest of a hill she first saw the two automobiles standing at the foot of the hill, headed easterly on the south side of the road, one at the rear of the other, without lights; that standing at the rear of the first vehicle 'approximately' in the center of the road, were three persons, one being the plaintiff; that these persons made no effort to get out of the path of defendant's automobile; and that she applied her brakes and attempted to stop but by reason of the 'snowy and icy condition of said road' her automobile slid forward and sideways to the foot of the hill, striking the first car and then plaintiff.

Plaintiff's reply, in substance, is a specific denial of each of the allegations in the answer inconsistent with those of the petition and '* * * denies that this plaintiff was negligent in standing in any portion of the roadway at any time during or prior to the accident and avers that same was caused by an emergency situation * * *.'

Crackle Road is 16 feet wide and of 'dirt' construction. There was introduced in evidence exhibit A, a photograph, disclosing a view of the road to the west with a downward dip and then an upward incline. An X mark was made on exhibit A indicating the location of the stationary automobiles. Both parties were familiar with the surounding conditions and circumstances existing at the time of the occurrence The 'speed limit' was 35 miles per hour.

Defendant testified that she was traveling westerly at a speed of 20 to 25 miles per hour and as she was passing over the crest of the hill someone was 'stepping into my lane waving a flashlight.' She applied her brakes, whereupon the car started to slide forward and sideways to the bottom of the hill, 'out of control.' She testified further that the two stationary cars were on the south side of the road about 'two or three feet' from the center line. Further evidence will be considered in the opinion.

The cause was submitted to the jury which returned a verdict for the defendant. The verdict was reduced to judgment which was affirmed by the Court of Appeals. Alowance of plaintiff's motion to certify the record brings the cause before this court for review.

Walter L. Greene, Cleveland, for appellant.

Bostwick, Hall & Canfield and Charles H. Hall, Chardon, for appellee.

HERBERT, Judge.

The defendant interposes three defenses: (1) Contributory negligence, (2) sudden emergency, and (3) last clear chance. The testimony and evidence are sharply conflicting. There is evidence, if believed by the jury, sufficient to support a finding that the plaintiff was negligent, and that his negligence contributed...