Lehman v. Haynam

• Decision Date: 29 February 1956
• Docket Number: No. 34416,34416
• Citation: 133 N.E.2d 97,164 Ohio St. 595
• Parties: , 59 O.O. 5 LEHMAN, Appellee, v. HAYNAM, Appellant.
• Court: Ohio Supreme Court

Page 595

164 Ohio St. 595

133 N.E.2d 97, 59 O.O. 5

LEHMAN, Appellee, v. HAYNAM, Appellant.

No. 34416.

Supreme Court of Ohio.

Feb. 29, 1956.

Syllabus by the Court

1. Where the Common Pleas Court strikes properly filed motions for judgment, the Court of Appeals upon appeal remands the cause to the Common Pleas Court with directions to consider and pass upon such motions, and the Court of Appeals had discretion to decide them, the Supreme Court, upon appeal, may in its discretion finally pass upon such motions.

2. Where the driver of an automobile is suddenly stricken by a period of unconsciousness which he has no reason to anticipate and which renders it impossible for him to control the car he is driving, he is not chargeable with negligence as to such lack of control.

3. Where in an action for injuries arising from a collision of automobiles the defense of the defendant driver is that he was suddenly stricken by a period of unconsciousness, which rendered it impossible for him to control the car he was driving and which he had no reason to anticipate or foresee, the burden of proof as to such defense rests upon such driver.

Doris Lehman, hereinafter designated plaintiff, instituted an action in the Court of Common Pleas of Stark County Against Earl Haynam, hereinafter designated defendant.

In her amended petition, filed January 4, 1954, plaintiff alleges that on the morning of May 21, 1952, her husband was driving an automobile westwardly on U. S. Route 30 from Minerva toward Robertsville in Stark County; that plaintiff and her son were riding in the front seat of the car and her daughter was riding is the back seat; that, as the car was proceeding westwardly on its own right-hand side of the highway, another automobile was being driven by defendant eastwardly on the highway toward the city of Minerva; and that defendant drove his automobile to his left, over and across the center line of the highway into the left lane thereof and head on into and against the car in which plaintiff was riding.

Plaintiff was severely injured as a result of the collision and prays damages in the sum of $75,000 and for her costs.

Defendant filed an answer admitting the collision, generally denying each and every other allegation in plaintiff's petition, and alleging that the collision occurred while defendant had lost consciousness from an unforeseeable cause, and that such loss of consciousness was unavoidable by him.

No reply was filed, but the cause proceeded to trial as though one had been filed.

The evidence shows that the accident happened substantially as alleged in plaintiff's petition and there is evidence of defendant, supported by the testimony of a physician testifying as an expert to the effect that, before defendant's automobile drifted over to the wrong side of the road, he had lost consciousness from an unforeseeable cause, although this latter claim was vehemently disputed by plaintiff.

A special verdict in the form of questions was submitted to the jury and it answered them to the effect that defendant had lost consciousness before the automobiles collided; that he had been driving his automobile on his right side of the road before losing consciousness; that after he lost consciousness his automobile did go over to its wrong side of the road; that defendant had no reason to anticipate losing consciousness; that no brakes were applied to defendant's automobile as it approached the point of collision; and that defendant did not fail to exercise ordinary care while he was conscious.

The jury likewise answered questions concerning the injuries suffered by plaintiff and the sum of money which would compensate he for her injuries.

Based upon the special verdict rendered by the jury, the Common Pleas Court entered judgment for defendant. Thereafter, plaintiff filed a motion for judgment and a motion for a new trial.

The Common Pleas Court sustained the motion for a new trial for the reason that it erred to the prejudice of plaintiff in its general charge by its failure to charge the jury that the burden of proof rested upon defendant to show that he was unconscious at the time of his alleged negligence.

Defendant filed a motion for a rehearing, which was overruled. Thereupon defendant filed a motion for judgment on the pleadings, a motion to reinstate the judgment, a motion for judgment on the evidence and a motion for judgment on the motion for directed verdict made by defendant during the trial. All such motions were ordered stricken for the reason that they had not been filed within the time prescribed by law.

Upon appeal to the Court of Appeals, that court held that the Common Pleas Court acted within its discretion in granting a new trial to the plaintiff, and that, therefore, the order granting such new trial is not a final order from which defendant could appeal.

The court held further that the Common Pleas Court ruled properly in striking the motion for judgment on the pleadings, in that such motion was not filed within the time prescribed by law, but that the Common Pleas Court was in error in striking from the record the respective motions filed by defendant after the granting of a new trial, for judgment on the evidence, for judgment on the motions for directed verdict, and for reinstatement of the original judgment in favor of defendant as a final judgment, and that the Court of Common Pleas should have passed upon the last three specified motions instead of striking them from the record.

The Court of Appeals dismissed the appeal from the Common Pleas Court's order granting a new trial, affirmed the Common Pleas Court's ruling in striking the motion for judgment on the pleadings, and remanded the cause to the Common Pleas Court with instructions to hear and pass upon the respective motions for judgment on the evidence, for judgment on motions for directed verdict, and for reinstatement of defendant's original judgment as a final judgment.

The cause is before this court upon the allowance of a motion to certify the record.

Burt, Carson, Vogelgesang & Burt, Canton, and Earl C. Sheehan, Alliance, for appellant.

Mills & Mills and Frank Lucas, Canton, for appellee.

STEWART, Judge.

If defendant was conscious during his driving, up to the point of the collision, he was without question guilty of negligence as a matter of law since he unquestionably violated a specific safety statute in driving his automobile over onto his wrong side of the road. The only difference between negligence as a matter of law or per se and negligence as a matter of fact is that the former is the violation of a specific requirement of a statute, whereas the latter must be determined by a comparison with the conduct of an ordinarily prudent person under the same or similar circumstances as those from which negligence is claimed.

In the case of negligence per se, the court charges the jury that if it finds that the specific requirement of a statute was violated, it must find negligence, whereas in ordinary negligence the jury must do the comparing with the conduct of an ordinarily prudent person.

In order to base a recovery upon either kind of negligence, it must be shown that it was the proximate cause of the injury, and any contributory negligence directly contributing to such injury will defeat such recovery.

Defendant claims, likewise, that if a person driving an automobile with due care becomes unconscious from an unforeseen cause, and during such unconsciousness his automobile collides with another, causing injury or damage, he is absolved from liability and the burden of proof is upon the one seeking recovery for such injury or damage to show negligence and that the driver was conscious. Furthermore, defendant claims that because his testimony as to his unconscious condition and the corroborating testimony of his witnesses on that point was uncontradicted, he was entitled to a directed verdict; that, therefore, the trial court was guilty of an abuse of discretion in granting plaintiff a new trial; and that the Court of Appeals should have passed upon his motions for judgment instead of remanding them to the Common Pleas Court for consideration.

We are of the opinion that the Common Pleas Court did not abuse its discretion in granting a new trial but that the Court of Appeals could, within its discretion, have passed upon the motions for judgment instead of remanding them.

The Common Pleas Court, in charging the jury, stated as follows:

'However, before I go into these questions, one by one, the court says that the plaintiff in this case, Doris Lehman, has the burden of proof. To state that conversely, there is no obligation upon the defendant, Earl Haynam, to offer evidence to disprove anything until first Doris Lehman has offered such evidence which tends to disprove.

'Doris Lehman has the burden of proof and she must prove her claims by a preponderance of the evidence, that is, the greater weight of the evidence.'

In its opinion, the Common Pleas Court stated:

'At no point in the charge is that statement as to the burden of proof qualified so that, in fact, the court told the jury that the plaintiff had the burden of proving that the defendant did not suffer a loss of consciousness as the defendant claimed to have. Manifestly, this was incorrect and was prejudicial to the rights of the defendant.'

Defendant claims that at best the failure of the trial court to charge on the burden of proof as to unconsciousness was a mere omission, and that under the law error can not be predicated upon an omission unless it is brought to the court's attention and a proper charge requested.

Although we have held in several cases that a mere error of omission or a desire for a fuller charge must be brought to the court's attention in order to form a basis for a claim of prejudicial error, there was an entire failure upon the part of the trial court in the present case to properly charge upon the...