Lester v. John R. Jurgensen Company, No. 18237.
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Writing for the Court | WEICK, , and O'SULLIVAN and CELEBREZZE, Circuit |
| Citation | 400 F.2d 393 |
| Decision Date | 19 September 1968 |
| Docket Number | No. 18237. |
| Parties | Belva LESTER, Administratrix of the Estate of McCllan Lester, Deceased, Plaintiff-Appellant, v. JOHN R. JURGENSEN COMPANY, Roy McGovney, d/b/a Roy McGovney Construction Company, Vest and Bartell, Inc., and James Treber Osman, Defendants-Appellees. |
400 F.2d 393 (1968)
Belva LESTER, Administratrix of the Estate of McCllan Lester, Deceased, Plaintiff-Appellant,
v.
JOHN R. JURGENSEN COMPANY, Roy McGovney, d/b/a Roy McGovney Construction Company, Vest and Bartell, Inc., and James Treber Osman, Defendants-Appellees.
No. 18237.
United States Court of Appeals Sixth Circuit.
September 19, 1968.
Andrew B. Dennison, Cincinnati, Ohio, White, Getgey & Dennison, Cincinnati, Ohio, on brief, for appellant.
Robert C. McIntosh, Cincinnati, Ohio, McIntosh & McIntosh, Cincinnati, Ohio, on brief, for McGovney, Vest & Bartell and Osman.
David P. Faulkner, Cincinnati, Ohio, Benjamin, Faulkner & Tepe, R. Edward Tepe, Cincinnati, Ohio, on brief, for Jurgensen.
Before WEICK, Chief Judge, and O'SULLIVAN and CELEBREZZE, Circuit Judges.
CELEBREZZE, Circuit Judge.
This diversity action presents the question: Under Ohio law, when can a passenger in an automobile be charged with the negligence of the driver? Plaintiff-Appellant, the administratrix of the deceased passenger's estate, brought suit in the United States District Court for the Southern District of Ohio, which entered a judgment on a jury verdict for the Defendants-Appellees. Because of prejudicial error in the Court's charge to the jury, we reverse the judgment of the District Court and remand the case for a new trial.
McCllan Lester, the deceased, died from injuries received when the car in which he was riding crashed into the rear of a dump truck that was owned by Defendant McGovney and was being driven by his employee, Defendant Osman. At the point of the collision, Highway 52 was under construction. Although the traveled portion of the highway was complete, the berm area was being repaired and widened. Defendant Jurgensen Company was the prime contractor for the highway improvement, but the particular work being done at the place of the accident had been subcontracted to a joint venture composed of Defendants Vest and Bartell, Inc., and Roy McGovney.1 Defendant Osman was operating within the scope of his employment at the time of the accident.
This was an unusually complex personal injury case; but, in view of its disposition, we do not need to outline the facts in any great detail. McCllan Lester was traveling with William Blair. He and Blair, both residents of Virginia, had been to Cincinnati to visit members of their respective families and were on the return trip to Virginia when the collision occurred. The time was approximately 4:00 p. m.; the two-lane highway was straight and level, and the visibility was relatively unobstructed. Two "Please Men Working" signs, one facing east and the other west, had been placed 600 feet apart to warn oncoming traffic of the construction work. James Osman and a fellow workman had removed the sign facing west. Osman then proceeded up the eastbound lane and stopped the dump truck in the lane of traffic while the other workman removed the sign facing east. Blair testified that he was traveling at about 55-60 miles per hour in the eastbound lane behind another car and that he saw the parked truck for the first time when the car in front of him suddenly pulled into the left lane to pass the truck. When he pulled into the left lane, however, Blair said that he saw an approaching car, pulled back into the eastbound lane and applied his brakes, but could not stop in time.
Of the three assignments of error, the first two, concerning whether violation of Ohio Revised Code § 4511.66 is negligence per se, can be disposed of shortly. Although no Ohio court has yet ruled on the point, we consider the District Court's refusal to charge on negligence per se a correct application of Ohio law. Section 4511.66 provides:
"* * * no person shall stop * * upon the paved or main traveled part of the highway if it is practicable to stop * * * off the paved or main traveled part of said highway."
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Lewis v. Horace Mann Ins. Co., No. 1:03CV1281.
...Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440 (1954)); see also Lester v. John R. Jurgensen Page 657 Co., 19 Ohio Misc. 119, 400 F.2d 393, 396 (6th Cir.1968) ("It is well settled in Ohio that when a statute expresses a rule in general or abstract terms negligence per se has no app......
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Stewart v. Ford Motor Co., Nos. 75-1676
...accordingly, are to be governed by federal law. Batesole v. Stratford, 505 F.2d 804, 807 (6th Cir. 1974); Lester v. John R. Jurgensen Co., 400 F.2d 393 (6th Cir. 1968); McNamara v. Dionne, 298 F.2d 352, 355 (2d Cir. 10 Haynes v. Coolidge, 118 U.S.App.D.C. 348, 336 F.2d 736, 737 n.1 (1964); ......
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Bachner v. Rich, No. 2309
...determination as a substituted standard of care. In Breitkreutz, we cited with approval the decision in Lester v. John R. Jurgensen Co., 400 F.2d 393, 396 (6th Cir. 1968), where the court said in . . . when a statute expresses a rule of conduct in general or abstract terms negligence per se......
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Northern Lights Motel, Inc. v. Sweaney, No. 2476
...of care. Bachner v. Rich,supra at 441-42; Breitkreutz v. Baker, 514 P.2d 17, 22 (Alaska 1973). Accord, Lester v. John R. Jurgensen Co., 400 F.2d 393, 396 (6the Cir. 1968) (applying Ohio The construction requirement contained in the U.B.C. meets the criteria developed in Ferrell and its prog......
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Lewis v. Horace Mann Ins. Co., No. 1:03CV1281.
...Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440 (1954)); see also Lester v. John R. Jurgensen Page 657 Co., 19 Ohio Misc. 119, 400 F.2d 393, 396 (6th Cir.1968) ("It is well settled in Ohio that when a statute expresses a rule in general or abstract terms negligence per se has no app......
-
Stewart v. Ford Motor Co., Nos. 75-1676
...accordingly, are to be governed by federal law. Batesole v. Stratford, 505 F.2d 804, 807 (6th Cir. 1974); Lester v. John R. Jurgensen Co., 400 F.2d 393 (6th Cir. 1968); McNamara v. Dionne, 298 F.2d 352, 355 (2d Cir. 10 Haynes v. Coolidge, 118 U.S.App.D.C. 348, 336 F.2d 736, 737 n.1 (1964); ......
-
Bachner v. Rich, No. 2309
...determination as a substituted standard of care. In Breitkreutz, we cited with approval the decision in Lester v. John R. Jurgensen Co., 400 F.2d 393, 396 (6th Cir. 1968), where the court said in . . . when a statute expresses a rule of conduct in general or abstract terms negligence per se......
-
Northern Lights Motel, Inc. v. Sweaney, No. 2476
...of care. Bachner v. Rich,supra at 441-42; Breitkreutz v. Baker, 514 P.2d 17, 22 (Alaska 1973). Accord, Lester v. John R. Jurgensen Co., 400 F.2d 393, 396 (6the Cir. 1968) (applying Ohio The construction requirement contained in the U.B.C. meets the criteria developed in Ferrell and its prog......