Kemp v. Lormer

• Court: Ohio Court of Appeals
• Writing for the Court: CARPENTER
• Citation: Kemp v. Lormer, 87 Ohio App. 307, 94 N.E.2d 702 (Ohio App. 1949)
• Decision Date: 24 January 1949
• Docket Number: No. 4349,4349
• Parties: , 43 O.O. 42 KEMP v. MORMER.

Page 307

87 Ohio App. 307

94 N.E.2d 702, 43 O.O. 42

KEMP v. MORMER.

No. 4349.

Court of Appeals of Ohio, Lucas County.

Jan. 24, 1949.

Syllabus by the Court.

1. It is error to sustain an objection to a proper question asked on cross-examination, and the examiner is not required to tender the answer the expects in order to preserve the error.

2. In the absence of a specific law to the contrary, a pedestrian on the sidewalk of a public street has a right to cross the street where he chooses, and whether he is negligent in so doing may be a fact question for a jury's determination.

3. Section 6307-47b, General Code, which requires a pedestrian to look 'in both directions to see what is approaching' before stepping into a public street, does not apply to a pedestrian crossing at a private driveway.

4. It is the duty of the driver of a motor vehicle in backing it out of a private driveway across the sidewalk and into a street at night to exercise ordinary care not to injure a pedestrian who is rightfully on that street.

William D. Driscoll, Toledo, for appellant.

Marshall, Melhorn, Wall & Bloch, Toledo, for appellee.

CARPENTER, Judge.

From a judgment for defendant entered on a verdict directed at the close of plaintiff's case, and from an order overruling a motion for a new trial, plaintiff appealed on questions of law. The journal entry does not state the basis on which the court made the direction, but from the bill of exceptions it appears that in doing so it said 'that there is no evidence of negligence on the part of the defendant.'

Plaintiff contends that there was error in the rejection of evidence and in directing the verdict.

In Decebmer 1946, plaintiff, James Kemp, and the Lormer family, including the son Robert, the defendant, were near neighbors in the village of Holland in Lucas county. The Lormers lived on the north side of Second street which was paved with asphalt. Their house was about 20 feet back from the sidewalk. Mr. Kemp's home was on Erie street which crossed Second street east of the Lormers. The section was a residential one.

About 6:45 p. m. on December 6, Kemp, who was 83 years old and quite hard of hearing, alighted from a bus at Clark and Second streets, about 200 feet west of Lormers, and walked east on the sidewalk on the north side until he came to the Lormer driveway where he turned south to cross the street to an alley in the rear of his home.

The distance from the walk to the pavement was between 10 and 12 feet. When he had taken one step off the sidewalk, he was struck by the Lormer automobile, then being backed out of the driveway by the defendant. Kemp sustained some injuries and this action was for the resulting damages.

The lights on the automobile were burning, as was the street light at the Clark-Second intersection 200 feet to the west.

The defendant was called for cross-examination and testified that the driveway was on the west side of his house. Over objection, he was finally permitted to say thtat there was a space of 50 feet between his home and the next house to the west. That was important, for that was the direction from which Kemp approached on the sidewalk to the place of collision.

Defendant said his automobile had been parked 50 feet or more from the sidewalk, and that he did not look to the west until he was within 15 feet from the walk and could then see to the end of Second street. He said also that the rear window was 'befogged with moisture' and he could not see through it, and that 'looking directly back would be extremely difficult because of the construction of the car but I looked to the southeast and to the southwest perhaps in the direction of the sidewalk as I was going out.'

The evidence record then shows the following:

'Q. What did you do if anything to assure yourself that you could back out of the driveway into the street without hitting anyone?

'Objection:

'The court: Sustained.

'Q. What did you do if anything to observe that your path was clear?

'Objection:

'The court: The objection is sustained.'

After the automobile struck the plaintiff, it stalled. The defendant said he found him two feet out in the street 'under the left rear bumper at the junction of the fender and bumper.' It does not appear whether there was a curb on that street.

The above testimony was on cross-examination of the defendant, who had by amended answer admitted 'that at said time and place a collision occurred between said automobile and the plaintiff, resulting in certain injuries to the plaintiff.' Just why there were objections to the questions above quoted is not clear to this court, and why the objections were sustained is even more difficult of understanding. It was not incumbent upon the cross-examiner to tender what he expected the answer would be....