Kesmarki v. Kisling, 18018-18019.
Citation | 400 F.2d 97 |
Decision Date | 10 September 1968 |
Docket Number | No. 18018-18019.,18018-18019. |
Parties | Theresa KESMARKI and Thomas Kesmarki, Plaintiffs-Appellants, v. Ruth Elizabeth KISLING, Defendant-Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Robert M. Dudnik, Cleveland, Ohio (Leon M. Plevin, Dudnik, Komito, Nurenberg, Plevin, Dempsey & Jacobson, Cleveland, Ohio, on the brief), for appellants.
John E. Martindale, Cleveland, Ohio (Arter, Hadden, Wykoff & Van Duzer, Cleveland, Ohio, on the brief), for appellee.
Before O'SULLIVAN, CELEBREZZE, Circuit Judges, and CECIL, Senior Circuit Judge.
O'SULLIVAN, Circuit Judge.
We consider the appeals of Theresa Kesmarki and her husband, Thomas, from judgments for defendant, Ruth Elizabeth Kisling, entered upon a jury verdict. The actions, tried together, arose from injuries suffered by Theresa Kesmarki in a collision between automobiles driven by her and by defendant-appellee. The collision occurred at about 4:00 p. m. on December 3, 1962, in the intersection made by West Third Street and Weldon Avenue in the City of Mansfield, Ohio. Plaintiffs-Appellants' Colorado citizenship provided the diversity jurisdiction of the United States District Court for the Northern District of Ohio, Eastern Division. We affirm.
There was little factual disagreement as to how the collision occurred. We set out the following from the statement of facts in the appellants' brief.
And the following from the Counter Statement of Facts in appellee's brief:
It is clear that both drivers came to the point of collision without either having seen the approach of the other. The evidence would have permitted the jury to come to one or more factual conclusions, including the following:
that plaintiff\'s failure to see defendant was due to her total neglect to look for traffic coming north on Weldon Avenue and into her path; that defendant\'s failure to see plaintiff was due to the ineffectiveness of her claimed look for traffic coming from her right on West Third Street; that both drivers proceeded into the collision under traffic conditions which made it impossible for either to make an effective observation to insure her proceeding with safety; that the plaintiff\'s admitted speed was negligent in view of her restricted, or total lack of view; that defendant\'s uninterrupted driving at 5 to 10 miles an hour into the intersection, notwithstanding her inability to discover the approach of plaintiff\'s vehicle, was negligence; that defendant\'s failure to yield the right of way to plaintiff was a negligent and proximate cause of the accident; that plaintiff\'s negligence was a proximate cause of the accident; that the negligence of both parties concurrently and proximately contributed to the collision.
The claims of error charged on this appeal are: First, that the District Judge should have directed a verdict of liability because, as a matter of law, defendant was negligent and plaintiff Theresa Kesmarki was free of contributory negligence; Second, that the Court committed error in his instructions to the jury; and, Third, that defense counsel's reference to answers to interrogatories propounded in another suit in which appellant Theresa Kesmarki was plaintiff should not have been allowed.
The assertion that, as a matter of law, defendant was negligent is bottomed primarily on Section 4511.43 of the Ohio Revised Code which provides in part:
It is undisputed that West Third Street was a favored through street and that defendant was required to stop before entering it and to yield the right of way to a vehicle on West Third Street entering the intersection. The violation of a relevant statute regulating traffic is negligence per se. 39 Ohio Jur.2d § 44, at 551; Schell v. Du Bois, 94 Ohio St. 93, 113 N.E. 664, L.R. A.1917A, 710 (1916). And a motorist entering a favored street will not be excused from required care by looking but failing to see a vehicle that was there to be seen. Her preparatory look must be an effective one. Spitler v. Morrow, 100 Ohio App. 181, 136 N.E.2d 321 (1955); Pritchard v. Cavanaugh, 18 Ohio Law Abst. 354 (1934), affirmed, 129 Ohio St. 542, 196 N.E. 164; Jackson v. Mannor, 90 Ohio App. 424, 107 N.E.2d 151 (1951).
Defendant counters these assertions by pointing to Ohio law which limits the protection of a right of way statute to those who are themselves proceeding "in a lawful manner" — see definition of "Right of Way," O.R.C. § 4511.01 (TT) (1967 Cum.Supp.). The third syllabus of Morris v. Bloomgren, 127 Ohio St. 147, 187 N.E. 2, 89 A.L.R. 831 (1933),...
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