McFadden v. Elmer C. Breuer Transp. Co.

• Decision Date: 16 January 1952
• Docket Number: No. 32611,32611
• Citation: 156 Ohio St. 430,103 N.E.2d 385,46 O.O. 354
• Parties: , 46 O.O. 354 McFADDEN v. ELMER C. BREUER TRANSP. CO. et al.
• Court: Ohio Supreme Court

Page 430

156 Ohio St. 430

103 N.E.2d 385, 46 O.O. 354

McFADDEN v. ELMER C. BREUER TRANSP. CO. et al.

No. 32611.

Supreme Court of Ohio.

Jan. 16, 1952.

Syllabus by the Court.

1. The question of whether the operator of a motor vehicle was negligent in failing to comply with the 'assured-clear-distance-ahead' rule contained in Section 6307-21, General Code, is not presented to the trier of the facts where there is no substantial evidence (1) that the object with which such operator collided was located ahead of him in his lane of travel, and (2) that such object was reasonably discernible, and (3) that the object was (a) static or stationary, or (b) moving ahead of him in the same direction as such operator, or (c) came into his lane of travel within the assured clear distance ahead at a point sufficiently distant ahead of him to have made it possible, in the exercise of ordinary care, to bring his vehicle to a stop and avoid a collision.

2. Where, in an action for the wrongful death of the operator of an automobile which collided with a roll of steel, 34 inches in height, 3 feet, 11 inches in diameter and weighing over 13,000 pounds, which dropped from defendant's truck, which was going in the opposite direction, into the path of the operator of the automobile, the defendant truck owner admits negligence proximately contributing to the collision but asserts as a defense that the operator of the automobile was guilty of contributory negligence in that he violated the provision of Section 6307-21, General Code, commonly referred to as the assured-clear-distance-ahead rule, the burden is upon the defendant, in order to make a prima facie case of such contributory negligence, to present substantial evidence (a) that the object with which such operator's vehicle collided had been in his path or lane of travel before the collision at a sufficient distance ahead of him to have made it possible for him, in the exercise of ordinary care, to stop such vehicle and avoid a collision, and (b) that such object was a reasonably discernible one.

The defendants, Elmer C. Breuer Transportation Company and Elmer C. Breuer Company, are treated as one and the same company throughout this case although separate answers were filed by them. The question of separate identity not having been raised on the record, and judgment in the trial court having been rendered against the defendants jointly, we shall here treat them as one company and refer to them as the defendant.

The business of the defendant was the operation of trucks and the carrying of freight by truck.

At about 9:00 p. m. on March 9, 1948, when a truck of the defendant was traveling in a southerly direction on route No. 14, a few miles northwest of Ravenna, Ohio, a large roll of sheet steel, which was a part of the truck's cargo, fell from the truck into the northbound lane of traffic. When first seen, after the accident, the roll of steel was lying approximately two and one-half feet to the east of the center line of the highway with the center opening verticle 'as if a doughnut.' Its height was 34 inches and its diameter 3 feet, 11 inches. It weighed approximately 13,410 pounds.

A Buick automobile driven in a northerly direction by plaintiff's decedent, John E. McFadden, who was accompanied by two young men, collided with the roll of steel. The automobile was wrecked and all three occupants were killed. This action for damages for wrongful death resulted.

The defendant's answer admitted that the roll of steel with which the automobile collided had fallen from a truck operated by the defendant.

By stipulation, trial by jury was waived and the case was tried to the court. It was further stipulated that in the event the court should find in favor of the plaintiff a judgment of $10,000 would be entered in favor of the plaintiff.

Although the defendant did not plead contributory negligence or undertake by answer to invoke the assured-clear-distance-ahead rule against the plaintiff, the sole defense urged in argument was the application of that rule as embodied in Section 6307-21, General Code, which reads in part: '* * * no person shall drive any motor vehicle * * * in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead.'

The trail judge, performing the function of a jury, rendered a decision in favor of the plaintiff upon the facts and rendered judgment for the plaintiff for $10,000 in accordance with the stipulation.

The Court of Appeals, two judges concurring, reversed the judgment of the trial court and rendered final judgment for the defendant.

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

Samuel T. Gaines, A. H. Dudnik, M. L. Bernsteen and Joseph L. Sweeny, all of Cleveland, for appellant.

Squire, Sanders & Dempsey and James C. Davis, all of Cleveland, for appellees.

MIDDLETON, Judge.

The defendant admits in its answer that the roll of steel fell from its truck. At the opening of the trial defendant stipulated that it was guilty of negligence proximately contributing to the death of the decedent and that the sole question at issue, so far as liability was concerned, was whether plaintiff's decedent was guilty of contributory negligence. The defendant asserted that such contributory negligence resulted from violation by the decedent, McFadden, of the assured-clear-distance-ahead provision contained in Section 6307-21, General Code.

Under defendant's construction of Section 6307-21, General Code, with which construction the Court of Appeals agreed, the driver of the automobile must be deemed to be guilty of contributory negligence as a matter of law once the collision occurs and that the burden is upon the plaintiff to establish impossibility of compliance with the statute. In argument this position was paraphrased thus, 'Collision equals violation,' and it was urged that the defendant need produce no evidence other than evidence that the collision occurred to make a prima facie case of contributory negligence.

A question is here raised which has not been passed upon specifically in any of the many decisions of this court which construed and applied this statute.

When the assured-clear-distance-ahead rule is invoked, either by a plaintiff to establish negligence or by a defendant to establish contributory negligence, what evidence must be produced by the one so invoking the rule to make a prima facie case of violation of the statute?

In this case the defendant invokes the rule for the purpose of establishing the defense of contributory negligence.

It is elementary that the person who asserts an issue has the burden of proving it. In Ohio, the plaintiff does not have the burden of proving freedom from contributory negligence. Contributory negligence is a defense.

When the defendant asserts violation of the assured-clear-distance-ahead provision of Section 6307-21, General Code, as a defense, he, in effect, says that the plaintiff did all things necessary to constitute a violation. What defendant says must be supported by some substantial evidence.

The decisions of this court have established that the operator of a motor vehicle violates this statute if he drives at such speed that he collides with a reasonably discernible object (1) which is located ahead of him in his lane of travel and which object is (a) static or stationary, Skinner v. Pennsylvania R. Co., 127 Ohio St. 69, 186 N.E. 722; Watt v. Jefferson Trucking Co., 130 Ohio St. 99, 196 N.E. 887; Kormos v. Cleveland Retail Credit Men's Co., 131 Ohio St. 471, 3 N.E.2d 427; Smiley v. Arrow Spring Bed Co., 138 Ohio St. 81, 33 N.E.2d 3, 133 A.L.R. 960, or (b) moving ahead of him in the same direction, Gumley, Adm'r v. Cowman, 129 Ohio St. 36, 193 N.E. 627; Higbee Co. v. Lindemann, 131 Ohio St. 479, 3 N.E.2d 426; Bickel v. American Can Co., 154 Ohio St. 380, 96 N.E.2d 4, or (2) which appears in his path at a sufficient distance ahead of him to give him time, in the exercise of ordinary care, to bring his automobile to a stop and avoid a collision. Klever v. Reid Brothers Express, Inc., 151 Ohio St. 467, 86 N.E.2d 608; Erdman v. Mestrovich, 155 Ohio St. 85, 97 N.E.2d 674; Sherer v. Smith, a Minor, 155 Ohio St. 567, 99 N.E.2d 763.

It is the burden of the defendant, who asserts contributory negligence and invokes the aid of Section 6307-21, General Code, to present some evidence upon each element necessary to constitute a violation in order to make a prima facie case of violation.

If the defendant fails to present evidence tending to establish any one of the elements necessary to constitute a violation, the benefit of the statute does not accrue to the defendant.

If the defendant does make a prima facie case and plaintiff introduces no evidence to meet it, the violation is established.

If, however, conflicting evidence is introduced as to any one of such elements necessary to constitute a violation, a jury question is created.

In most instances the question whether the object with which the collision occurs is reasonably discernible gives little difficulty. A train on a highway crossing or a truck or an automobile on the highway in the driver's path can be considered reasonably discernible without more evidence than the fact of its presence. If, however, the nature of the object be such that reasonable minds might differ as to it being reasonably discernible, evidence to establish that it was such is required. Any conflict in such evidence creates a jury question.

In cases so far decided by this court, the requirement of showing that the object was in the path of the vehicle at a sufficient distance ahead and for sufficient time to have enabled the operator, in the exercise of ordinary care, to have stopped has been considered satisfied if the object was static or stationary, or was moving in the same direction as the operator.

In one case, however, where a vehicle...