Gedeon v. East Ohio Gas Co.

• Decision Date: 16 May 1934
• Docket Number: No. 24518.,24518.
• Parties: GEDEON v. EAST OHIO GAS CO.
• Court: Ohio Supreme Court

128 Ohio St. 335
190 N.E. 924

GEDEON
v.
EAST OHIO GAS CO.

No. 24518.

Supreme Court of Ohio.

May 16, 1934.

Error to Court of Appeals, Cuyahoga County.

Action by Edward Gedeon, administrator, etc., against the East Ohio Gas Company. Judgment in favor of the defendant was affirmed by the Court of Appeals and the plaintiff brings error.-[Editorial Statement.]

Judgment of the Court of Appeals reversed, and cause remanded to the court of common pleas in accordance with opinion.

As the parties stand here in the same relative positions as they stood in the court of common pleas, they will be referred to as plaintiff and defendant.

The action was one for personal injury. At the trial, counsel for the plaintiff, as part of his opening statement, read the petition and made certain explanatory remarks disclosing the following facts:

The plaintiff's decedent was driving a truck eastwardly on the south side of Denison avenue near the intersection of Fifty-Sixth street in the city of Cleveland. Joseph Ferencz, at the same time, was driving west-wardly on the north side of said Denison avenue. Just before these two automobiles passed each other, August Tesnow parked a car along the north curb of Denison avenue headed west, got out of said car on its left side directly into the street, and, without looking for traffic, started to cross Denison avenue toward the south. As alleged in the petition, Tesnow stepped from his parked car ‘directly into the path of the automobile operated by Joseph Ferencz, at a time when said Joseph Ferencz was so close to the said Tesnow that it was impossible for said Joseph Ferencz in the exercise of ordinary care, to bring said automobile to a stop before reaching the said Tesnow.’ To avoid striking Tesnow, Ferencz swerved his automobile to the left and ‘into the path of the truck operated by the plaintiff's decedent at a time when said truck was so close that it was impossible for the plaintiff's decedent * * * to avoid a collision. * * *’ The collision occurred just a little south of the center line of Denison avenue, which is a heavily traveled street with double car tracks. It is approximately forty feet wide.

Tesnow was a meter reader employed by the defendant. When the accident occurred he had just come from a building where he had read a gas meter and was on his way from the place where he had parked his car to a building across the street where he intended to read another.

The plaintiff's decedent was injured in the collision and the suit was for injuries so sustained. He died subsequently to the accident, but from other causes.

On the pleadings and the opening statement of counsel the defendant made a motion for judgment which was granted by the trial court. This judgment was affirmed by the Court of Appeals. The case comes into this court on allowance of a motion to certify the record.

Syllabus by the Court.

[Ohio St. 335]Damages for an injury resulting from a negligent act of the defendant may be recovered if a reasonably prudent and careful person, under the same or similar circumstances, should have anticipated that injury to the plaintiff or to those in a like situation would probably result.

[Ohio St. 337]

[190 N.E. 925]

Quigley & Byrnes and William A. Kane, all of Cleveland, for plaintiff in error.

Tolles, Hogsett & Ginn, of Cleveland, for defendant in error.

BEVIS, Judge.

For the purpose of this opinion the facts, as set forth in the pleadings, and as stated to the jury, must be taken as true.

The theory of the plaintiff's case is as follows:

(a) Tesnow was an employee of the defendant company, and at the...