Green v. Castronova

• Decision Date: 20 December 1966
• Citation: 38 O.O.2d 176,223 N.E.2d 641,9 Ohio App.2d 156
• Parties: , 38 O.O.2d 176 GREEN, Appellee, v. CASTRONOVA, Appellant.
• Court: Ohio Court of Appeals

Page 156

9 Ohio App.2d 156

223 N.E.2d 641, 38 O.O.2d 176

GREEN, Appellee, v. CASTRONOVA, Appellant.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Dec. 20, 1966.

Spain & Spain, Warren, for appellee.

Stephens, Stephens & Wilkes, Youngstown, for appellant.

LYNCH, Judge.

This is an appeal on questions of law by defendant, appellant herein, from the order of the trial court granting plaintiff, appellee herein, a new trial. The jury had returned a verdict in favor of defendant. The trial judge sustained plaintiff's motion for a new trial, because he found the verdict to be manifestly against the weight of the evidence.

The first question before this court is the standard we must use in reviewing this case.

The case of Poske v. Mergl, 169 Ohio St. 70, 157 N.E.2d 344, holds as follows:

'1. Where the evidence in the trial of a case is such that the case must be submitted to a jury to find for either the plaintiff or defendant, and where the trial court after its review of the evidence on a motion for a new trial is convinced that there is insufficient credible evidence to sustain a judgment upon the verdict of the jury, such court may, in its discretion, grant not more than one new trial for that reason.

'2. Such action on the part of the court rests solely within its sound discretion, and it is not reviewable unless there has been an abuse of that discretion.

'3. Where a court finds a verdict not sustained by sufficient evidence, it may likewise find an answer by the jury to an interrogatory to be against the weight of the evidence.'

The Poske case was followed in Berry v. Roy, 172 Ohio St. 422, 178 N.E.2d 37. See 3 Ohio Jurisprudence 2d 774, Appellate Review, Section 800.

Defendant cites the case of Price v. McCoy Sales & Service, Inc., 2 Ohio St.2d 131, 207 N.E.2d 236, where the court, in the first paragraph of the syllabus, said:

'The granting of a motion for a new trial is a final appealable order as provided in Section 2505.02 of the Revised Code. (Green v. Acacia Mutual Life Ins. Co., 156 Ohio St. 1, 100 N.E.2d 211, overruled; Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St. 221, 70 N.E.2d 649, approved and followed.)'

Judge Herbert, in the majority opinion in the Price case, does not discuss whether the granting of a new trial by a trial judge on the weight of the evidence is within its sound discretion, while Chief Justice Taft in a concurring opinion, in which two other judges concurred, stated:

'I do not interpret our decision today as changing the law as to the extent of a trial court's discretion in granting a new trial. See Poske v. Mergl (1959), 169 Ohio St. 70, 157 N.E.2d 344.'

We concur in the following statement of Judge Guernsey in the case of Getty v. Scholz Homes, Inc., 2 Ohio App.2d 331, at page 338, 208 N.E.2d 552, at page 557:

'Notwithstanding that the case of Price v. McCoy Sales & Service, Inc., 2 Ohio St.2d 131, 207 N.E.2d 236, establishes that an order granting a new trial is a final appealable order without the showing of an abuse of discretion by the trial court, the action of the trial court in sustaining a motion for new trial on the ground of insufficiency of the evidence still rests solely within its sound discretion and is not reversible unless there has been an abuse of that discretion. Where the evidence is such that the case must be submitted to a jury to find for either the plaintiff or the defendant, and where the trial court is convinced that there is insufficient credible evidence to sustain a judgment upon the verdict of the jury, the trial court may grant not more than one new trial for that reason. Poske v. Mergl, 169 Ohio St. 70, 157 N.E.2d 344.'

This case concerns an accident in which plaintiff, a pedestrian, sustained severe personal injuries as a result of being struck by defendant's automobile on West Federal Street. Plaintiff testified that he parked his car along the north curb of West Federal Street on November 30, 1963, at approximately 12:30 a. m.; that the right wheels of his car were flush against the curb; and that he got out of his car, closed the door and looked to the left to see if any cars were coming. That is all he remembers. He did not remember seeing the car that hit him. He intended to walk across West Federal Street to the Pine Panel Inn to meet a friend. He did not remember taking any steps but did not think he did because the accident happened so fast.

Defendant testified that he did not see plaintiff until he hit him. He was driving west on West Federal Street about twelve to thirteen feet from the north curb at a rate of speed of thirty to thirty-five miles an hour. He said that he could see between fifty and sixty feet ahead with his headlights. He saw plaintiff roll over his hood and break his windshield. He estimated that he was driving three to four feet from the parked cars along the north curb of West Federal Street.

The only other eyewitness was George Stanar who came out of the Pine Panel Inn and was getting into his automobile which was parked on the south side of West Federal when he saw plaintiff's car pulled up on the north side of West Federal Street almost directly across from him. As Mr. Stanar was getting into his car, he saw plaintiff park his car. After Mr. Stanar got into his car, he saw plaintiff get out of his car, close his door and face him. Mr. Stanar rolled his window down, and he looked down at his handle. When he looked up again he saw plaintiff get hit. Mr. Stanar did not know whether plaintiff moved or took a step after the plaintiff got out of his car. Mr. Stanar did not see defendant's car until it struck plaintiff.

West Federal Street is forty to forty-five feet at the scene of the accident and has a level, smooth, blacktop surface. It was wet at the time of the accident, and the lighting was dark. There was a pool of blood five feet from the north curb, that was sixty-three feet from plaintiff's parked car. Mr. Stanar testified that plaintiff's body was three to four feet from the north curb after the accident. Sergeant Paul Cress of the Youngstown Police Department testified that an automobile going thirty miles an hour travels forty-four feet per second; that at thirty-five miles an hour it goes approximately fifty-two and one-half feet per second; and that at thirty-five miles an hour an automobile would skid about sixty to sixty-five feet on wet pavement of the type at the scene of the accident.

Plaintiff's contention is that defendant was negligent in that he failed to keep a lookout for plaintiff; that he was operating his motor vehicle at a rate of speed greater than was reasonable and proper while approaching plaintiff; and that he did not have his car under control while approaching plaintiff.

Defendant testified that he did not see plaintiff and did not decrease his speed. But plaintiff was on the board. The most eloquent proof of this fact is that defendant's car struck plaintiff. The testimony of plaintiff and Mr. Stanar is that plaintiff got out of his car, closed his car's door and then turned around. Therefore, on the basis of those facts, plaintiff was out of his car and within the range of plaintiff's vision when defendant drove upon the scene of the accident. It is obvious that defendant was negligent.

The issue in the case is whether plaintiff was also negligent and whether plaintiff's negligence proximately contributed to his injuries. Defendant does not allege contributory negligence in his answer, but in his brief he states that the evidence indicates that at the time of the impact between plaintiff and defendant's car, plaintiff was at least four to five feet south of the left side of plaintiff's parked car and that plaintiff was not crossing the street at a crosswalk.

If defendant's contention is correct, this would be further proof of defendant's negligence, because there would have been more time for plaintiff to have come within the range of defendant's headlights and view. There would further be the question of whether the 'last clear chance' doctrine would apply; however, this was not discussed in the general charge of the trial court, nor was such a charge requested by plaintiff.

However, the only evidence in the record to support defendant's contention that plaintiff was hit four to five feet south of the left side of plaintiff's car is defendant's estimate that he was driving three to four feet from the parked cars when the accident occurred. Plaintiff said that he did not remember taking a step but did not think that he did. Mr. Stanar did not know whether plaintiff took a step, because it happened so fast. The burden of proof was upon defendant to prove that plaintiff was negligent and that plaintiff's negligence proximately contributed to his injuries.

Under the state of the facts in this case, we cannot say that the trial court abused its discretion in finding that the jury's verdict was against the manifest weight of the evidence.

An additional reason for granting a new trial is the error of the trial court demonstrated in the italicized language in giving defendant's first special charge, which is set out as follows:

'The court charges you as a matter of law that the mere fact that an accident happened or that plaintiff received some injury is no evidence whatsoever that the defendant was negligent and no negligence may be inferred therefrom.

'Negligence is a fact which must be proved against the defendant by the greater weight of all the evidence and is not to be presumed nor guessed at.

'The presumption is, before any evidence was introduced, that the defendant was at all times complained of by plaintiff in his petition, in the exercise of ordinary care.'

This was one of eight special charges to the jury, which the trial court gave at the close of the evidence and before argument at the request of defendant. Plaintiff in his brief states:

'* * * because of the manner and form as given to the jury in...