King v. Branch Motors Exp. Co.

• Decision Date: 19 November 1980
• Docket Number: No. 6711,6711
• Parties: , 24 O.O.3d 250 KING et al., Appellants, v. BRANCH MOTOR EXPRESS COMPANY, Appellee. *
• Court: Ohio Court of Appeals

Page 190

70 Ohio App.2d 190

435 N.E.2d 1124, 24 O.O.3d 250

KING et al., Appellants, v. BRANCH MOTOR EXPRESS COMPANY, Appellee. ^*

No. 6711.

Court of Appeals of Ohio, Second District, Montgomery County.

Nov. 19, 1980.

Syllabus by the Court

Where the evidence produced in a case clearly establishes a potential issue of contributory negligence, and where the defendant has not pleaded the affirmative defense of contributory negligence by responsive pleading as required by Civ.R. 8(C) or by amendment to that responsive pleading as a matter of course under Civ.R. 15(A), that defense is deemed to have been waived as provided in Civ.R. 12(H); under such circumstances, it is prejudicial error for the trial court, over objection, to charge the jury on the issue of contributory negligence.

Michael R. Eckhart, Stoecklein & Koverman and John R. Koverman, Jr., Dayton, for appellants.

Pickrel, Schaeffer & Ebeling and James F. Barnhart, Dayton, for appellee.

ZIEGEL, Judge.

On the afternoon of November 18, 1976, as Kathleen M. King, age nine, was crossing Spaulding Road near the intersection of Spaulding Road and Woodbine Avenue in Dayton, Ohio, she was struck and seriously injured by defendant's truck, which was then being operated by its employee, George Green. Kathleen, through her next friend, Richard A. King, and Richard A. King, individually, filed suit against the defendant-appellee, Branch Motor Express Company. The matter came on for trial before a jury on January 22, 1980. The jury returned a verdict for the defendant, pursuant to which the judgment entry was filed on February 5, 1980; from that judgment entry, this appeal has been perfected.

Appellants set forth the following assignments of error:

"I. The trial court erred when it charged the jury on contributory negligence when such issue was not raised by the defendant in their (sic ) answer or otherwise raised by the defendant.

"II. The trial court erred in not including in its instructions to the jury the request of plaintiffs with regard to what a driver should anticipate when a driver knows or should know that children are in the vicinity.

"III. The trial court erred in not including in its instruction to the jury the request of plaintiffs with regard to the degree of care of a driver when children are known to be or reasonably expected to be in the vicinity.

"IV. The trial court erred when it failed to give plaintiffs' requested instructions to the jury on unreasonable speed limits.

"V. The trial court erred when it permitted testimony by defendant's expert as to the calibration of the speedometer of the truck and skid tests and as to the speed of the truck at the time the brakes were applied."

Four of these assignments of error concern the judge's charge to the jury. The fifth assignment of error involves an evidentiary question, which, having chronologically occurred before any jury charge questions arose, will be considered first.

During the trial, appellee called William E. Billings, a mechanical engineer specializing in traffic accident reconstruction. No question is raised as to his professional qualifications. Appellants objected to several aspects of his testimony.

Using the same truck involved in the accident, Billings conducted an experiment which placed the truck in a driving pattern similar to that preceding the accident and then had the driver slam on the brakes to cause the truck to skid. From the speed of the truck, the existing weight of the truck, and the length of the skid marks so produced, as compared with the known lengths of the skid marks created when driver Green applied the brakes on the same truck immediately prior to his striking appellant Kathleen M. King, Billings established the speed of the truck at the time of the accident. The first step in this experiment consisted of calibrating the speedometer on the truck. Appellants objected on the ground that there was no evidence offered concerning whether the speedometer in the truck on May 19, 1977, the day when the experiment was conducted, was the same speedometer that was in the truck on the day of the accident, November 18, 1976.

It is apparent that appellants misunderstood the purpose of the experiment. It was not to test speedometer accuracy: it was to obtain an estimate of speed from skid mark lengths. The purpose of calibrating the particular speedometer that happened to be in the truck on May 19, 1977, whether or not it was the same speedometer that was in the truck on November 18, 1976, was to establish its accuracy with relationship to its reading and actual miles-per-hour speed. In this case, it was determined that when the speedometer registered 30 miles per hour, the vehicle was actually going 30.9 miles per hour. From this information, the expert knew that if he had the truck driver operate the truck at a speedometer reading of 30 miles per hour, at which speed the brakes would be applied heavily to cause the vehicle to skid, the comparison of the length of the skid mark thus produced with the known length of the skid mark produced in a similar braking at the time of the accident would have to be adjusted mathematically to compensate for the fact that the test vehicle's speedometer reading was nine-tenths of a mile short of actuality in order to determine the actual speed of the truck at the time of the accident.

In their reply brief, appellants stated that Billings used the figure of "4,664 pounds" as being the weight of the truck at the time of the accident; whereas, according to appellants, there was no testimony as to the weight of the truck at the time of the accident. The record does establish, however, from Billings' own testimony, that he figured the weight of the truck as of the time of the accident from the bill of lading for the load. The driver, Green, also gave an estimate of the weight the truck was carrying.

It is well settled that questions regarding the admissibility of expert or experiment evidence are within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of discretion. There was no such showing here. Further, the jury was properly instructed on how to evaluate assumed facts which form the basis for an expert's opinion.

Appellants' fifth assignment of error is not well taken.

The first assignment of error objects to the trial judge's charge to the jury on contributory negligence. Under Civ.R. 8(C), contributory negligence is an affirmative defense which should be specifically set forth in a responsive pleading. In the case sub judice, appellee did not either plead contributory negligence in its answer or move to amend its answer pursuant to Civ.R. 15(A). Appellants properly objected at appropriate times to the inclusion in the court's general charge to the jury of any contributory negligence instruction. The trial court overruled these objections, stating that "I must instruct on it because it came out in evidence presented by the plaintiff(s) and by the defendant. * * *"

Appellants rely primarily on Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55, 320 N.E.2d 668, which involved the statute of limitations as an affirmative defense. Under Civ.R. 8(C), regarding the pleading of an affirmative defense in a responsive pleading, both the defense of the statute of limitations and the defense of contributory negligence, among others, are specifically defined as affirmative defenses. In Mills, the defendant did not plead the statute of limitations in its answer, but the defendant did plead that the complaint failed to state a claim against the defendant upon which relief could be granted. At the trial, after all pleadings were in and the issues drawn, defendant moved for a dismissal on the ground that the complaint showed, on its face, the bar of the statute of limitations, and argued the applicability of Civ.R. 12(B). The trial court overruled the motion to dismiss. The Court of Appeals reversed the trial court, and the Supreme Court reversed the Court of Appeals.

After pointing out two decisions on this subject rendered prior to the advent of the Civil Rules on July 1, 1970, i.e., Wentz v. Richardson (1956), 165 Ohio St. 558, 138 N.E.2d 675, and Aetna Cas. & Sur. Co. v. Hensgen (1970), 22 Ohio St.2d 83, 258 N.E.2d 237, Justice Corrigan summarized the Supreme Court's conclusions as follows:

"A clear distinction exists in the Civil Rules between the affirmative defense of the bar of the statute of limitations pursuant to Civ.R. 8(C), and a Civ.R. 12(B)(6) defense. The purpose behind the allowance of a Civ.R. 12(B) motion to dismiss based upon the statute of limitations is to avoid the unnecessary delay involved in raising the bar of the statute in a responsive pleading when it is clear on the face of a complaint that the cause of action is barred. The allowance of a Civ.R. 12(B) motion serves merely as a method for expeditiously raising the statute of limitations defense. If the bar of the statute is not raised either by motion before pleading or affirmatively in a responsive pleading, or by amendment made under Civ.R. 15, then the defense is waived under Civ.R. 12(H), as are all other affirmative defenses which a party may present. (Emphasis added.)

"This result is in accord with the pre-Civil Rules procedure established by this court in the Hensgen decision above. To hold otherwise would effectively place the burden of affirmatively pleading compliance with the statute of limitations upon the plaintiff, contrary to the express mandate of Civ.R. 8(C), and contravene the intent of the Ohio Civil Rules to expedite the formulation of issues prior to trial.

"In the present case, appellee's (defendant's) oral motion to dismiss, made at trial, was not timely made pursuant to Civ.R. 12(B), and the defense of the statute of limitations is waived pursuant to Civ.R. 12(H)." Mills v. Whitehouse Trucking Co., supra, 40 Ohio St.2d at 59-60, 320 N.E.2d 668.

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