Matz v. J.L. Curtis Cartage Co.

• Decision Date: 17 March 1937
• Docket Number: 25886.
• Citation: 132 Ohio St. 271,7 N.E.2d 220
• Parties: MATZ v. J. L. CURTIS CARTAGE CO.
• Court: Ohio Supreme Court

7 N.E.2d 220

132 Ohio St. 271

MATZ v. J. L. CURTIS CARTAGE CO.

No. 25886.

Supreme Court of Ohio

March 17, 1937

Syllabus by the Court.

1. The driver of a motor vehicle, who, after nightfall, without his fault, is forced, by an oncoming automobile, to the side of the highway and into an unlighted parked truck, with which otherwise he would not have collided, cannot be said as a matter of law to be guilty of violating the 'assured clear distance' provision of section 12603, General Code. Paragraph 3 of the syllabus in Kormos v. Cleveland Retail Credit Men's Co., 131 Ohio St. 471, 3 N.E.2d 427, approved and followed.

2. Section 614-86, General Code, applies only to motor transportation companies and does not confer upon the Public Utilities Commission power to regulate the use of public highways by the general public.

3. Under section 614-87, General Code, a certificate of public convenience and necessity granted to a motor transportation company is subject to such terms and conditions as the commission, in its judgment, may require. The words 'terms and conditions' include rules and regulations relating to safety on the highway, whether adopted before or after the certificate is obtained.

4. Such rules and regulations are subject to the requirement that they must be reasonable and neither arbitrary nor discriminatory nor contrary to a law of this state.

5. A certificate of public convenience and necessity constitutes neither a franchise nor a contract, confers no property right, and is a mere license which may be revoked in the manner provided by law for failure or refusal to comply with the terms and conditions incident thereto.

6. The General Assembly cannot delegate legislative power to an administrative board and any enactment which in terms does so is unconstitutional and void; but laws may be passed which confer on such a board administrative powers only.

7. As a general rule a law which confers discretion on an executive officer or board without establishing any standards for guidance is a delegation of legislative power and unconstitutional; but, when the discretion to be exercised relates to a police regulation for the protection of the public morals, health, safety, or general welfare, and it is impossible or impracticable to provide such standards, and to do so would defeat the legislative object sought to be accomplished, legislation conferring such discretion may be valid and constitutional without such restrictions and limitations.

8. A motor transportation company which is engaged in the transportation of persons and property for hire on the public highways of this state under a certificate of public convenience and necessity from the Public Utilities Commission is, in doing so, operating a public utility, and the Legislature, in authorizing the commission to make safety rules as a condition upon which the rights under such a certificate may be exercised without establishing standards does not delegate legislative power to the commission.

9. Section 614-86, General Code, in so far as it purorts to confer power on the Public Utilities Commission to prescribe safety regulations for motor transportation companies and 'to regulate the service and safety of operation of each such motor transportation company,' delegates administrative power to the commission, is not in contravention of section 1 of Article II of the Constitution and is valid.

10. A violation of a safety regulation adopted by the Public Utilities Commission pursuant to authority conferred by section 614-86, General Code, does not constitute negligence per se; but such a regulation is admissible in evidence as bearing on the question of the want of ordinary care.

11. Where the evidence adduced gives rise to conflicting inferences as to whether the negligence of the defendant tort-feasor was the proximate cause of injury and damage to the plaintiff, a question of fact is presented for the determination of the jury under instructions of the court.

The plaintiff, appellee, Peter Matz, as administrator and sole beneficiary of the estate of his deceased wife, Anna Matz, brought an action in the court of common pleas of Cuyahoga county, Ohio, against the J. L. Curtis Cartage Company, defendant, appellant, to recover for the wrongful death of his decedent who was killed on December 17, 1932, while riding with him in his one-ton motortruck when it ran into the rear of a truck of the defendant company, parked near the south curb of Mentor avenue, in the city of Painesville, Ohio. Plaintiff and his wife were returning home from Cleveland, Ohio, to Madison, Ohio, having left Cleveland about 10:30 p. m. The husband was driving, and his wife was riding with him as a guest. They traveled on route 20 to Painesville, and, after crossing the railroad tracks, entered the west end of the city on the street on which the accident occurred.

The trial resulted in a verdict for the plaintiff for $7,500. Judgment was entered thereon, and was affirmed by the Court of Appeals.

This court allowed a motion to certify the record.

Howell, Roberts & Duncan, of Cleveland, for appellant.

Payer, Corrigan, Cook & Pilliod, of Cleveland, for appellee.

WILLIAMS Judge.

The first contention made by the appellant is that the trial court should have directed a verdict in its behalf upon the authority of Skinner v. Pennsylvania R. Co., 127 Ohio St. 69, 186 N.E. 722, Gumley, Adm'r, v. Cowman, 129 Ohio St. 36, 193 N.E. 627, and Watt v. Jefferson Trucking Co., 130 Ohio St. 99, 196 N.E. 887.

Appellant contends that this court should hold as a matter of law that the plaintiff was driving his truck at a greater speed than would 'permit him to bring it to a stop within the assured clear distance ahead,' in violation of section 12603, General Code, and was thereby guilty of contributory negligence. If plaintiff was so guilty, it would be a bar to his recovery, as he was the sole beneficiary of his wife under the wrongful death statute. Cleveland, C., C. & St. L. Ry. Co. v. Grambo, Sr., Adm'r, 103 Ohio St. 471, 134 N.E. 648, 20 A.L.R. 1214.

Plaintiff testified on the trial that he was driving east on Mentor avenue at the rate of 30 miles per hour, with his left front wheels about one foot south of the center of the street; that his bright headlights illuminated the road about 250 feet ahead and lighted it up from the center to the south curb; that he was following 60 feet behind another eastbound car; that two westbound automobiles approached him, driving midway between the center and north curb of the roadway; that, after the eastbound car had passed these two automobiles, the rear westbound automobile drove out of line and 2 or 3 feet over onto the plaintiff's side of the roadway; that at this time the plaintiff was about 20 to 25 feet from this westbound automobile; that he was obliged to turn suddenly and unexpectedly to the right to avoid a headon collision with this car; that at the speed he was traveling it would require 25 to 30 feet to stop; that he could not stop before hitting the rear end of the defendant's truck; and that the lights of the oncoming cars in no way interfered with his view to the east along his side of the road.

The plaintiff's claim of negligence was that there were no lights burning on defendant's truck and no flares were placed on the road. There was evidence tending to prove that the place of the accident was lighted to some extent by street lights and that the lights of the westbound cars illuminated the street to some extent. There was testimony to the effect that the night was dry and clear.

The rule applicable to this contention is laid down in the third paragraph of the syllabus in the case of Kormos v. Cleveland Retail Credit Men's Co., 131 Ohio St. 471, 3 N.E.2d 427, which reads as follows:

'An operator who has failed to comply with the 'assured clear distance' statute may excuse such failure and avoid the legal imputation of negligence per se by establishing that, without his fault, and because of circumstances over which he had no control, compliance with the law was rendered impossible.'

The plaintiff was confronted with an emergency by the swerving of the oncoming automobile into his path. There is evidence tending to show that, without his fault and by the unforeseeable action of another, he was forced to turn to his right and into the parked truck, which according to plaintiff's testimony was at the time unlighted.

In the state of evidence shown by the record the questions whether plaintiff was guilty of negligence in violating the statute and whether such negligence, if it existed, directly contributed to produce his wife's injuries, were for the determination of the jury under proper instructions of the court.

A second contention is that the trial court committed prejudicial error in charging the jury that a violation of a certain rule or regulation of the Public Utilities Commission requiring that trucks stopped on the highway at night must be protected by red lights or flares constituted negligence per se.

The regulation is as follows:

'Every truck or truck train shall be provided with green marker lights visible from the front, and red marker lights visible from the rear in addition to the regularly used lights. Each truck and each trailer must have a green light near the front, and a red light near the rear, both on the left side, to definitely indicate the outline of the vehicle.

'Every motor vehicle shall be provided with good and sufficient brakes, tires, and the usual essential mechanical parts, and in addition:

'1. Two red flags and two red fusees or red flashlights for use in emergency stops.

'No truck shall be stopped within the traveled portion of the highway except as allowed by law. ...