Nardi v. Reliable Trucking Co.
| Decision Date | 07 June 1948 |
| Citation | 81 N.E.2d 411,85 Ohio App. 122 |
| Parties | NARDI v. RELIABLE TRUCKING CO. |
| Court | Ohio Court of Appeals |
Sindell & Sindell, of Cleveland, for plaintiff appellant.
Snyder Seagraves, Roudebush & Adrion, of Cleveland, for defendant appellee.
This is an appeal on questions of law from a judgment of the common pleas court of Cuyahoga county, wherein a verdict and judgment was rendered in favor of the defendant, in an action for personal injuries alleged to have been sustained by the plaintiff growing out of a collision between a three and one-half ton stake truck and a police tow truck, the latter being driven by the plaintiff.
The accident occurred February 2, 1945 at about 1:20 P. M. in front of a loading platform at 4616 Hamilton Avenue in the City of Cleveland, Ohio. Both parties agree that the street was covered with a layer of ice at the time and place of the collision. There is evidence in the record tending to show that one Albert Toth, the driver for the defendant, Reliable Trucking Company, first drove his truck down East 45th Street north to Hamilton Avenue and then east to a place opposite the loading dock of the Cleveland Brass Mfg. Co., at which point he drove his truck to the north side of Hamilton Avenue and parked the truck headed east at an angle along side the north curb with the rear end of the truck extending out into the street. The truck was equipped with rear view mirrors on the right and left sides and had a rear window in the cab which was at the time of no benefit to the driver because his view was obscured with a load of corrugated paper boxes.
Toth testified in substance that after he had stopped his truck in the position above indicated, he looked in both directions even to the extent of getting out of his truck on to the running board to do so but saw no traffic coming in either direction. That thereupon he got into the cab and started to back the truck across the highway. The first that he knew of a collision was when he 'heard a crash behind the truck.'
Plaintiff testified that he drove the polic tow truck north on East 45th Street and had turned east on Hamilton Avenue and proceeded east at about 18 to 20 miles per hour. He testified further that:
'As I approached 4629 Hamilton Avenue I saw the big truck parked on the north side of the street and I saw he started to back up and I blew my horn and put my brakes on and he come suddenly and he rammed right into me as I had my hand on the horn, and he pushed me against the right side of the door and smashed all my left side door in, and knocked the horn button on the ceiling and came down on the floor board and I laid down on the seat. * * *'
On cross-examination he testified in substance that he began pumping his brakes and sounding his horn when he first saw the truck backing up; that he was 35 to 55 feet from the truck at that time; that he pumped his brakes once or twice but the defendant's truck kept backing up; that his brakes were on full about three or four feet before the impact and at the moment of the impact; that he had slackened his speed to four or five miles per hour at the time of the impact; that he could not stop on the icy pavement before the impact and that he could not move to the right because he would have run into the parked cars.
There is evidence in the record tending to show that after the collision the right rear of defendant's truck was pinned against the left side of plaintiff's truck; that the defendant's truck after the collision was across the highway about eight feet south of the center line of Hamilton Avenue and eight feet north of the south curb.
It was stipulated that the width of Hamilton Avenue at the point of the collision was 38 feet, 1 1/2 inches.
The plaintiff sets forth two assignments of error as follows:
1. Error in the general charge to the jury.
2. Abuse of discretion in refusing to grant a new trial for misconduct of a juror.
Considering first the charge of misconduct of a juror upon which counsel have cited and quoted many authorities, we have reached the conclusion since the refreshing decision of the Supreme Court in the case of Pearson v. Gardner Cartage Co., 148 Ohio St. 425, 76 N.E.2d 67 () that the question of misconduct of jurors on voir dire examination is a matter exclusively within the sound discretion of the trial court, when the propriety of the participation of such juror is properly raised and the Court of Appeals may not reverse on this ground unless it clearly appears that the trial court abused its discretion in accordance with Sec. 11364, G.C., in overruling the motion for new trial. We find no abuse of discretion by the trial court in this respect.
This brings us to a consideration of the principal assignment of error, namely, that the court erred in its charge to the jury. The particular part of the charge complained of is as follows:
(Emphasis added)
It is claimed that this charge of the court was prejudicially erroneous in the following respects:
1. It injected a new issue into the case not raised by the pleadings or the evidence, namely, that the defendant driver may have been confronted with an emergency.
2. It defined and applied a different and lesser standard of care to the defendant driver than the standard of care set forth in Sec. 6307-37, G.C.
3. It was an incomplete definition of the doctrine of emergency as applied to this case and it failed to relate the doctine of emergency to the doctrine of contributory negligence.
4. It placed too great a burden on the plaintiff to prove not only negligence but also that the defendant driver was not in an emergency.
We think the evidence in this case was such as to entitle plaintiff to a charge on the doctrine of sudden emergency, particularly in view of the evidence of an icy pavement, the testimony of the driver of defendant that he looked for traffic before starting to back up, that he saw none although plaintiff's truck was there, the testimony of plaintiff that he continually sounded his horn before the collision and other facts in the evidence too numerous to detail, all tending to show a situation of peril and emergency.
On the other hand, we find there is no evidence in the record which would justify an inference that defendant was confronted by a sudden emergency or that he was in a perilous situation. On the contrary, the emergency, if any, was created by the conduct of defendant's driver in backing his truck in such a manner as to obstruct the highway.
The effect of the charge of the court in giving defendant the benefit of the sudden emergency doctrine was to inject an issue into the case which was not raised by the pleadings or the evidence. See 2 Ohio Jurisprudence, Appeal & Error, paragraph 774, page 952: 'Injecting new issues into case: It is clearly reversible error for the court in its instructions to inject into the case issues and questions not raised by the pleadings or evidence, if they have a tendency to confuse the questions properly in the case and to mislead the jury to the prejudice of the plaintiff in error.'
See also: Pearlstein v. A. M. MacGregor Home, 79 Ohio App. 526, 73 N.E.2d 106 (), and other cases cited therein.
Considering next, the claim that the charge of the court reduced the statutory degree of care required of defendant in backing his vehicle across the highway to the lesser degree or ordinary care, we think the claim of plaintiff well founded, in view of the decision of the Supreme Court in the case of Bush v. Harvey Transfer Co., 146 Ohio St. 657, 67 N.E.2d 851, 855.
In the instant case the court read to the jury Section 6307-37, G.C., as follows:
'No person shall start a vehicle which is stopped, standing or parked, unless and until such movement can be made with reasonable safety, and before backing operators of vehicles shall give ample warning while backing and shall exercise vigilance not to injure persons or property on the highway.' The court then said to the jury: 'I...
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