Glasco v. Mendelman
| Decision Date | 26 July 1944 |
| Docket Number | 29905. |
| Citation | 56 N.E.2d 210,143 Ohio St. 649 |
| Parties | GLASCO v. MENDELMAN. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. In an action for personal injury where the jury determined that the negligence of the defendant was the sole proximate cause of the injury (even though plaintiff admittedly was guilty of negligence) and judgment was entered upon such verdict, on appeal on questions of law alone, a Court of Appeals is without authority to reverse such judgment and to render final judgment in favor of the defendant, where the evidence is such that reasonable minds could come to different conclusions upon the question of proximate cause.
2. Where an automobile, in the night season, struck a pedestrian crossing a public highway at a place other than an intersection or cross-walk, and the evidence is to the effect that the street was well lighted; that the headlights on the automobile were burning; that the automobile was being driven in low gear for a distance of more than 75 feet before the collision; that she was struck by the right front bumper or fender; and that there was no other traffic upon the street the question of whether the driver of such automobile was guilty of a violation of 'the assured clear distance ahead' provision of the then existing statute, was properly submitted to the jury.
Appeal from Court of Appeals, Franklin County.
Alva Glasco, plaintiff, appellant herein, recovered a judgment in the sum of $2,000 against Sydney Mendelman, defendant appellee herein, in the Court of Common Pleas of Franklin county, on account of personal injury and property damage sustained by her as the result of being struck by an automobile driven by defendant.
On appeal on questions of law the Court of Appeals reversed the judgment and entered final judgment in favor of the defendant, upon the ground that the plaintiff was guilty of negligence as a matter of law and that such negligence was a contributing proximate cause of the accident.
The following factual situation is presented by the record:
Plaintiff, an elderly lady of about 70 years, at the time of the accident lived on the south side of Livingston avenue east of Miller and west of Ellsworth avenues.
Miller and Ellsworth avenues run dead into Livingston avenue from the north and south, respectively.
Street cars run over Livingston avenue upon double tracks and the line ends about one and one-half squares east of plaintiff's residence. On January 30, 1940, at about 7 p. m., plaintiff left her home for the purpose of taking a street car to downtown Columbus. A street-car stop for westbound street-car passengers was almost opposite plaintiff's property. She had seen a car go to the end of the line and she desired to board that car upon its return trip. When she arrived at the south curb of Livingston avenue she looked to the east and the west and saw nothing approaching. She then started to cross Livingston avenue from the south to the north side thereof between intersections. When she reached the streetcar tracks she again looked, saw the stationary street car at the end of the line and also saw an automobile traveling north on Ellsworth avenue close to the corner of Livingston avenue. She continued across the street and when she reached a point about three or four feet from the north curb of Livingston avenue, she was struck by the right front bumper or fender of that automobile operated by defendant.
It was dark; the weather was cold, and ice and snow covered the street and sidewalks; it had been snowing but whether snow was falling at the time of the accident is not clear. The defendant stopped the automobile almost instantly after striking the plaintiff and he and another man (Robert Miller) took her to the hospital in the defendant's car, where she remained for about one month while she was being treated for a broken arm and other injuries.
Ellsworth avenue is approximately 92 feet east of the place where plaintiff was struck. The street at the place of the accident was well lighted and the headlights on defendant's car were burning. Defendant testified that he did not see plaintiff until he was 10 or 12 feet from her although he was driving in low gear. Robert Miller, the only disinterested witness, was standing at the car stop. He testified that the windshield wipers were not going; that the windshield was dirty; and that he (Miller) could not see through the front windshield. The defendant gave no signal of his approach nor did he swerve or attempt to swerve his car after he saw the plaintiff in the street.
Section 1260, paragraph C, of the ordinances of the city of Columbus was offered and received in evidence and reads as follows: 'Every pedestrian crossing a roadway at any point other than within the marked or unmarked cross-walk shall yield the right of way to vehicles upon the roadway, provided that this provision shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of pedestrians.'
It was admitted that plaintiff was guilty of negligence in crossing the street at the place of the accident.
This is substantially the evidence upon the question of liability.
The action of the Court of Appeals is here for review as a result of the allowance of a motion to certify the record.
Arnold, Wright, Purpus & Harlor, of Columbus, for appellant.
Clifford L. Rose, of Columbus, for appellee.
During the course of this opinion the parties will be designated as they stood in the Court of Common Pleas, Alva Glasco as plaintiff and Sydney Mendelman as defendant.
The judgment entry in the Court of Appeals reads in part as follows: 'This court finds that there is error in the said record and proceedings of said court prejudicial to the defendant-appellant, and that the trial court should have entered judgment in favor of the defendant.' The judgment was by a divided court and no reason is stated in the entry as the basis for the conclusion reached by the majority.
By the opinion we are advised that the majority reached the conclusion that the trial court committed prejudicial error in two particulars:
(1) In charging the jury on the subject of assured clear distance ahead.
(2) In failing to enter judgment in favor of the defendant.
The trial court charged the jury that 'no person shall operate a motor vehicle at a speed greater * * * than will permit the operator to bring the motor vehicle to a stop within the assured clear distance ahead.'
The 'assured clear distance ahead' requirement was first incorporated into the law of Ohio in 1929 (113 Ohio Laws, 283) by an amendment to the then existing Section 12603, General Code.
Since that time the application of that provision has been before this court on numerous occasions under varying factual situations. See Skinner v. Pennsylvania R. Co., 127 Ohio St. 69, 186 N.E. 722; Gumley, Adm'r, v. Cowman, 129 Ohio St. 36, 193 N.E. 627; Watt v. Jefferson Trucking Co., 130 Ohio St. 99, 196 N.E. 887; Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, 119 A.L.R. 646; Hunter v. Brumby, 131 Ohio St. 443, 3 N.E.2d 353; Kormos v. Cleveland Retail Credit Men's Co., 131 Ohio St. 471, 3 N.E.2d 427; Higbee Co. v. Lindemann, 131 Ohio St. 479, 3 N.E.2d 426; Matz, Adm'r, v. J. L. Curtis Cartage Co., 132 Ohio St. 271, 7 N.E.2d 220; Hangen, a Minor, v. Hadfield, 135 Ohio St. 281, 20 N.E.2d 715; Capelle v. Baltimore & O. R. Co., 136 Ohio St. 203, 24 N.E.2d 822; Smiley v. Arrow Spring Bed Co., 138 Ohio St. 81, 33 N.E.2d 3, 133 A.L.R. 960.
That provision was passed in the interest of the public safety and prescribes an absolute rule of conduct. It is well settled that a failure to conform thereto is negligence per se.
This court has recognized and pointed out that under some circumstances a failure to comply therewith may be excusable. However, the decisions make clear that the burden is upon the operator of the motor vehicle, who attempts to escape the legal effect of this mandatory provision, to prove such a state of facts over which he had no control that compliance therewith was made...
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