Johnson v. Hunter

• Decision Date: 06 June 1956
• Citation: Johnson v. Hunter, 144 N.E.2d 472, 103 Ohio App. 31 (Ohio App. 1956)
• Parties: , 3 O.O.2d 121 JOHNSON, Appellant, v. HUNTER, Appellee. *
• Court: Ohio Court of Appeals

Page 31

103 Ohio App. 31

144 N.E.2d 472, 3 O.O.2d 121

JOHNSON, Appellant, v.HUNTER, Appellee. ^*

Court of Appeals of Ohio, Scioto County.

June 6, 1956.

Syllabus by the Court

1.It is not reversible error for a trial court, in giving a requested special instruction to the jury, to identify the party making such request, although such practice is disapproved.

2.In an action predicated on a collision on a one-way bridge by two motor vehicles driven, respectively, by plaintiff and defendant, a charge to a jury that 'one-lane bridge''signs are cautionary in their nature and do not require any specific course of conduct on the part of the motorist, but charge him with the exercise of ordinary care in [the] light of knowledge of the signs together with all other facts and circumstances appearing,' correctly defines the duty of a motorist approaching a onelane bridge, and the use of the term, 'motorist,' instead of 'plaintiff' or 'defendant' is not prejudicial.

3.In such action a charge to the jury that 'if you find * * * that cautionary signs containing warning language--'one-lane bridge'--were posted on an approach to the bridge, and * * * that the car operated by the plaintiff * * * appeared upon the bridge before the car operated by the defendant * * * that fact did not require the defendant * * * to yield the right of way to the plaintiff,' is not complete in defining the degree of care required of defendant and is erroneous.

4.In such action, where contributory negligence is merely suggested by plaintiff's evidence, he is required only to counterbalance such inference and is not required to remove such inference or to establish that there was no negligence on his part.

Bannon, Howland & McCurdy, Portsmouth, for appellant.

Miller, Searl & Fitch, Portsmouth, for appellee.

COLLIER, Judge.

This is an appeal on questions of law from a judgment rendered on a verdict in favor of the defendant.The action arose as a result of an automobile collision between a 1936 Ford coupe driven by the plaintiff and a 1947 De Soto sedan driven by the defendant.On the morning of February 3, 1949, the parties approached a one-lane bridge across the Scioto River, near the village of Lucasville, from opposite directions.The plaintiff was driving in an easterly direction and the defendant was driving in a westerly direction.The bridge on which the collision occurred is about 450 feet long, consisting of three spans, each 150 feet long.The cars collided about 120 feet from the easterly end of the bridge.The bridge was properly marked with signs reading, 'one-lane bridge.'

The principal assignments of error are as follows:

1.The trial court erred in qualifying and modifying the special instructions given before argument to the jury.

2.The trial court erred in giving special instructions to the jury before argument.

3.The trial court erred in its general charge to the jury.

4.The verdict of the jury and the judgment are against the manifest weight of the evidence.

These assignments of error will be considered in the order stated.

The trial court, in giving two special charges before argument, as requested by defendant, prefaced the giving of such special charges as follows: 'Ladies and gentlemen, prior to argument the defendant has made written request of the court to give the jury the following instructions in writing * * * I read defendant's requests.'The plaintiff contends that the trial court should not have identified the party making the written request to give the special instructions, and that in doing so the special instructions given were qualified and modified in violation of Section 2315.01, Revised Code.

So far as we are able to determine, this exact question has never been decided in the courts of Ohio.The general rule is stated in 53 American Jurisprudence, 431, Trial, Section 538, as follows:

'An instruction when given is that of the court, and the better practice is to make no distinction between that portion which originates with the judge and that which originates with either counsel.But to characterize the instructions as having been requested by one party or the other, or the failure so to characterize them, is not ordinarily reversible error, for the jury will appreciate that when adopted the instruction becomes that of the court without regard to authorship.'

An examination of the cases in support of this text discloses universal criticism in indicating which party has requested the special charge, but very few courts have held it reversible error to name the author of the special charge requested.We disapprove of the method by which the special instructions in the instant case were given, but do not consider it reversible error.For additional authority see 43 Fifth Decennial Digest, Trial, k266.

At the close of the evidence and before argument the defendant requested the court in writing to give three special written instructions.The trial court gave two of the special charges as requested, the first of which reads as follows:

'If you find from the evidence that on the date of the accident and prior thereto, certain signs appeared on the highway at the approaches to the bridge, said signs containing warning language 'one-lane bridge,' that said signs are cautionary in their nature and do not require any specific course of conduct on the part of the motorist, but charge him with the exercise of ordinary care in light of knowledge of the signs together with all other facts and circumstances appearing.'

Plaintiff claims that the term, 'motorist,' does not relate to either the plaintiff or the defendant, and for that reason the instruction as given is abstract and indefinite.Both parties to this action were driving motor vehicles and therefore would come under the term 'motorist.'It may have been better to have designated the parties as 'plaintiff' or 'defendant' instead of using the term, 'motorist,' but since each party was a motorist and approached the bridge at about the same time, the term would apply equally to both parties.We are unable to see how the plaintiff could have been prejudiced by the use of such term.

Under a similar factual situation in the case of Quinn v. Tobin, 29 Ohio LawAbst. 650, it was held:

'Signs on a highway at the approach to a bridge containing language 'one-lane bridge,''narrow bridge' or 'slow' are cautionary in their nature, do not require any specific course of conduct on the part of a motorist, but charge him with the exercise of ordinary care in the light of knowledge of the signs together with all other facts and circumstances appearing.'

The special instruction above quoted is within the rule defining the duty of a motorist approaching a one-lane bridge as pronounced in the Quinncase, supra, with which we concur and approve.We find no error in the giving of that charge.

The second special instruction given by the trial court as requested by the defendant, reads as follows:

'If you find from the evidence that cautionary signs containing warning language--'one-lane bridge'--were posted on an approach to the bridge, and if you further find from the evidence that the car operated by the plaintiff, James E. Johnson, appeared upon the bridge before the car operated by the defendant, C. L. Hunter, that fact did not require the defendant, C. L. Hunter, to yield the right of way to the plaintiff.'

Such special instruction as given is clearly erroneous for the reason it is not complete in defining the degree of care required of the defendant.In the first special instruction given, the defendant was not required to follow any specific course of conduct, but was required to exercise ordinary care under the...