Michalsky v. Gaertner
| Citation | 53 Ohio App. 341,5 N.E.2d 181 |
| Parties | MICHALSKY v. GAERTNER. |
| Decision Date | 03 May 1935 |
| Court | Ohio Court of Appeals |
Syllabus by the Court .
1. It is not negligence as a matter of law for a nine year old boy to step into a street without looking both ways notwithstanding the provisions of section 6310-36, General Code.
2. Negligence as a matter of law which arises from a violation of section 6310-36, General Code, does not depend upon whether such statute is usually obeyed or violated by children of tender years.
Ralph L. Kryder and Sheck & Marsteller, all of Akron, for plaintiff in error.
Amer Sophrin & Cunningham and C. G. Wise, all of Akron, for defendant in error.
In the middle of a bright and sunny day in August, Herman P. Gaertner, who will be referred to as defendant, was driving his automobile south on a residential street in Akron, Ohio, known as Portage Path, which street was 28 feet wide between curbs, and paved with brick, and was slightly downgrade in the southerly direction in which defendant was driving.
On his right, close to the curb on the west side of the street, there were two cars parked lengthwise, either in front of or just northerly of the residence in which Harry Michalsky, who will hereinafter be referred to as plaintiff, lived; and directly across the street from such residence was a school playground, upon which were some small children and a man who was taking moving pictures, but there was at the time no traffic upon such street.
As defendant approached the vicinity, plaintiff, a lad nine years of age, started across the street going from his residence in an easterly and slightly southerly direction towards the people on the playground, and, after the lad had passed the center of the street, he was struck by the automobile being driven by the defendant, and was severely injured; his skull being fractured and he rendered unconscious.
In the amended petition filed by him plaintiff charged the defendant with negligence in failing to warn him of the approach of his automobile by sounding his horn or otherwise, with driving at a rate of speed which was excessive and greater than reasonable and proper under the circumstances, with failing to maintain a proper lookout, with failing to have his automobile under proper control, with failing to change the course of his automobile so as to avoid striking plaintiff, with driving his automobile on the left-hand side of the street, and with violating certain laws and ordinances.
The answer of the defendant alleged that he was driving his automobile in a lawful manner and at a reasonable rate of speed, that plaintiff suddenly ‘ darted into said street in front of said automobiles parked as aforesaid and directly into the path of defendant's car,’ and that the defendant, by applying his brakes and by the exercise of due care, was unable to avoid coming in contact with plaintiff, and, further, that the ‘ accident was caused solely without any carelessness or negligence’ of the defendant and ‘ wholly by reason of the carelessness and negligence of the plaintiff in darting into and endeavoring to cross said street directly in the path of defendant's car * * * and without looking in either direction before crossing said street, and without exercising any care whatsoever for his own safety.’
The defendant also charged that if it should be found that he was negligent, then the carelessness and negligence of the plaintiff in darting out into the street, without paying any attention to the condition of traffic thereon, and without looking in either direction before entering the street, was a direct and proximate cause of the collision, and, but for the same, such collision would not have occurred.
The trial resulted in a verdict and judgment in favor of the defendant.
The record discloses that the plaintiff, at the time and before the accident, was sickly, that he was behind in his school work, that he was slow mentally, and also in his physical movements, and that he was nine years of age and rather small for a boy of his age.
The evidence, as shown by the record, is such as to fully justify the conclusion that a part of the defendant's car was on the left, or east, side of the center of the street, and that plaintiff was struck just as he was passing the left end of defendant's bumper, and that plaintiff's body came to rest within a few feet of the east curb of the street, and that no horn was sounded by the defendant; but there was a conflict in the evidence as to the exact location of the two parked cars and as to how near to them the plaintiff started to cross the street, and as to the speed at which the automobile was being driven by the defendant, and as to whether the plaintiff ran or walked while attempting to cross the street, and, further, as to just how far past the center of the street plaintiff was at the time he was struck.
Whether the defendant, by the exercise of ordinary care, should have seen plaintiff and avoided striking him, was an issue as to which reasonable minds might reasonably have reached different conclusions; and whether plaintiff's conduct constituted negligence which proximately caused or contributed to cause his injuries was an issue as to which reasonable minds might reasonably have reached different conclusions.
To induce the jury to decide both of said issues in his favor, the defendant, by special requests, persuaded the court to charge the jury before argument as follows:
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