Grindell v. Huber
| Decision Date | 24 November 1971 |
| Docket Number | No. 71-41,71-41 |
| Citation | 275 N.E.2d 614,57 O.O.2d 259,28 Ohio St.2d 71 |
| Parties | , 57 O.O.2d 259 GRINDELL et al., Appellees, v. HUBER, Appellant. |
| Court | Ohio Supreme Court |
Defendant-appellant, Brice E. Huber, while operating a motor vehicle in the village of Forest, came to a stop at a street intersection. As he proceeded through the intersection, defendant observed a seven-year-old boy running across the street in front of his vehicle, whereupon defendant stopped again, this time within the intersection. When the boy reached the sidewalk, defendant started his vehicle forward again. The boy then ran back into the street and defendant stopped a third time. The boy picked up an object from the street and returned to the sidewalk. Defendant, after looking to the right, left and front of his vehicle, proceeded on. After he had gone not 'over a car length' in distance, he heard a 'small bump.' He stopped the vehicle again, within a car length, alighted, and in the street behind it he discovered a three-year-old boy, plaintiff-appellee, Michael Grindell, over whom defendant's vehicle had passed. The record is explicit that appellant looked all around before starting his vehicle in motion the third time and did not see the plaintiff-appellee at any time around his vehicle before the accident.
Lauren P. Grindell, Michael's father, filed a petition in the Court of Common Pleas setting forth two causes of action, one on behalf of his minor son for damages for personal injuries sustained by the child in the accident and one on his own behalf for medical expenses incurred in the treatment of his son.
In the amended petition it is alleged that defendant was negligent:
'1. In operating his automobile in and through said intersection at a speed greater than reasonable and proper in view of the then and there aforealleged existing conditions.
'2. In resuming his forward course westward, after having momentarily stopped therein as aforealleged, without looking to the front and right of his automobile.
'3. In operating his automobile at said time and place without sounding his horn or giving any warning.
'4. In failing to have and keep his automobile under control so as to be able to stop or turn same and thus avoid the collision.
'5. In failing to exercise ordinary care to avoid striking this plaintiff, after seeing and realizing his peril in time sufficient, by the exercise of ordinary care, to have slowed down, altered the course of, or stopped his said automobile.
'6. In failing, by the exercise of ordinary care, to have seen plaintiff in time sufficient to have stopped without hitting him.
In his answer defendant admits 'that * * * a collision occurred between the vehicle defendant was operating and the plaintiff, Michael D. Grindell,' but denies the allegations of negligence contained in the petition. Defendant also alleges that 'whatever injuries the plaintiff's said child sustained * * * and any damages that the plaintiff, Lauren P. Grindell, may have sustained, were due proximately to plaintiff, Lauren P. Grindell's, own negligence and that of his wife * * * in failing to take proper precautions to prevent said child being in a public street, unattended * * *.'
The causes were tried to a jury. In its charge, the trial court instructed the jury that a child of the age of three years could not be found contributorily negligent, on contributory negligence on the part of the father, and on unavoidable accident. The jury returned a unanimous verdict for defendant as to each cause of action.
All twelve jurors similarly answered in the affirmative this interrogatory:
'Do you find by a preponderance of the evidence that defendant did exercise that degree of care in looking to see Michael Grindell in or about the intersection, as an ordinarily careful and prudent person would have exercised under the same or similar circumstances?'
Upon appeal, the Court of Appeals reversed the judgment, finding 'that there was error prejudicial to the plaintiffs in the giving of the special instructions relating to the unavoidable accident.'
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mahon, Tudor, VanDyne & Tudor and Arthur D. Tudor, Kenton, for appellees.
John L. Roof, Kenton, for appellant.
Defendant offers two propositions of law for consideration, one pertaining to whether the defenses of unavoidable accident and contributory negligence are consistent, and one relating to the validity of the special instruction given on the issue of unavoidable accident. Due to the posture of the cause, however, resolution of the latter question will dispose of the appeal.
In reversing the judgment, the Court of Appeals found as to the father's cause of action that '* * * the special charge and that portion of the general charge relating to unavoidable, or inevitable, accident were erroneous * * *because the defendant placed the father's contributory negligence in issue and could not consistently claim that the injury was proximately caused by an unavoidable accident.'
Paragraph three of the syllabus in Whitehead v. Genl. Tel. Co. (1969), 20 Ohio St.2d 108, 254 N.E.2d 10, reads:
'Where a defendant negligently causes injury to a minor child, that single wrong gives rise to two separate and distinct causes of action: an action by the minor child for his personal injuries and a derivative action in favor of the parents of the child for the loss of his services and his medical expenses.'
That case held that:
'Where a court determines, in an action by the parents of an injured minor child, that a defendant is not liable to the parents for the loss of services and medical expenses of the child, that judgment does not collaterally estop the child from bringing an action against that same defendant to recover damages for her personal injuries, so long as it does not appear from the record in that prior action that the child was a party, or that the child was a real party in interest, or that the child had control over that litigation, or that the parents and child were in privity.'
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Gallimore v. Children's Hosp. Med. Ctr.
...a derivative action against a third-party tortfeasor who injures the parent's minor child. See, e.g., Grindell v. Huber (1971), 28 Ohio St.2d 71, 57 O.O.2d 259, 275 N.E.2d 614, and Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d 435, 254 N.E.2d 10. See, also, Norvell v. Cuya......
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