Nicholas v. Yellow Cab Co.

• Decision Date: 28 February 1962
• Citation: 180 N.E.2d 279,116 Ohio App. 402
• Parties: , 22 O.O.2d 232 William G. NICHOLAS, Jr., Plaintiff-Appellant, v. The YELLOW CAB CO., Defendant-Appellee.
• Court: Ohio Court of Appeals

Page 402

116 Ohio App. 402

180 N.E.2d 279, 22 O.O.2d 232

William G. NICHOLAS, Jr., Plaintiff-Appellant, v. The YELLOW CAB CO., Defendant-Appellee.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Feb. 28, 1962.

Day & Berkman, Cleveland, Edwin J. Ketchel, for plaintiff-appellant.

Burke, Haber & Berick, Thomas P. Meaney, Jr., Cleveland, for defendant-appellee.

SKEEL, Judge.

This appeal comes to this court on questions of law from a judgment of the Court of Common Pleas entered for the defendnat on the verdict of a jury. The action was based on a claim of negligence.

The proceeding now before the court is a motion for reconsideration under Section 2505.071, Revised Code. After the first presentation of the case, this court affirmed the judgment, noting in the entry that the bill of exceptions was not sufficiently complete to demonstrate the claimed errors.

On August 15, 1955, the plaintiff was a passenger in one of defendant's taxicabs and while being driven to his destination, a collision occurred between the cab and an automobile driven by one George Askew. The site of the collision was at the intersection of Willey and Train Avenues in the City of Cleveland. The taxicab was being driven south on Willey Avenue and, as was required by a stop sign, there maintained, the driver of the cab brought his vehicle to a complete stop at the intersection of Willey Avenue and Train Avenue. Train Avenue runs in a general easterly and westerly direction at this intersection. The cab remained standing to permit east and west traffic to clear the intersection. To the west of this intersection, Train Avenue curves so that traffic moving eastward is visible for a distance of about two hundred to two hundred fifty feet to vehicles heading south on Willey Avenue and stopped at the intersection. The cab driver remained standing until traffic cleared, it being plaintiff's version that the last westbound vehicle was a 'van-type' truck. As the truck proceeded westward, the taxi driver, believing the intersection clear, started to cross Train Avenue and as he did so, the plaintiff, looking westward, caught a glimpse of an eastbound automobile as it passed the truck a short distance to the west of the intersection. He claims to have shouted a warning to the driver but nevertheless the cab, as it proceeded through the intersection, was struck at the rear end by the eastbound vehicle previously observed by plaintiff. The cab driver's version of the collision was that after stopping and waiting for traffic moving east and west on Train Avenue to clear the intersection and after it did clear, he started forward when an eastbound automobile suddenly came around the curve from the west into his view at fifty miles per hour. The taxi driver testified that it was his judgment, under the emergency, to try to clear the intersection, that he accelerated the cab by pressing the throttle to the floor, the cab then being in first gear, that when he had proceeded to a point where only the rear of the cab was in the intersection, the eastbound automobile struck the cab at the extreme rear, the eastbound driver not attempting to slow down or to swerve to the left, and that by the force of the collision the cab was turned completely around so that when it stopped it was headed north at the south side of the intersection.

The driver of the eastbound automobile who was involved in the collision was made a party defendant to this action but was dismissed upon the trial of the case because service of summons was returned by the sheriff 'not found' and no alias praecipe for service was filed. However, he was called as a rebuttal witness by the plaintiff.

The bill of exceptions which was filed does not contain all of the evidence presented upon trial. It is clear from the record that the plaintiff did not intend to file a complete bill of exceptions and that that part which is missing was left out purposely and not by accident or mistake. The record shows that the plaintiff, by motion in this court, asked to amend the bill of exceptions by adding additional parts of the testimony (the complete testimony of the witness Askew on rebuttal) said motion being filed after the time for filing a bill of exceptions had passed, and which motion this court overruled.

During the trial of the case, the defendant represented to the court that the defendant's taxi driver was confined as a patient at Sunny Acres Hospital and that it had just been informed that he could not be released to testify in court. The court, after hearing evidence and considering an affidavit presented, as shown by the memorandum opinion of the trial judge filed with the papers in the case, granted a continuance for the purpose of taking the deposition of this witness, which, when taken, was then read in its entirety (both direct and cross-examination) at the trial, which procedure was objected to by the plaintiff. The court, in considering the defendant's request for a continuance, offered the plaintiff one of two choices under the circumstances--that is, either a continuance of the case for retrial at a future date or to suspend the trial long enough to take the deposition of the witness confined in the hospital. At the conclusion of the trial, a verdict was returned for the defendant and signed by nine jurors, upon which verdict judgment was entered.

The question of the sufficiency of a partial bill of exceptions, filed by an appellant to demonstrate the errors claimed, is one for the determination of the appellate court. Where the error claimed involves the weight and sufficiency of the evidence, or that the judgment is contrary to law, or that the ocurt's charge was erroneous, the bill of exceptions must contain the certificate of the trial judge that it contains all of the evidence presented upon trial. Regan, Adm'x. v. McHugh, 78 Ohio St. 326, 85 N.E. 559. Otherwise the bill of exceptions must contain that party of the record and testimony of the witnesses and the proceedings of the trial that has any factual or legal relationship to the questions involved to enable the reviewing court to pass upon the errors claimed.

The first error set out by the plaintiff is that the court, after plaintiff had concluded his case, upon motion of the defendant, continued the trial of the case from the close of court, October 13, 1960, until the next afternoon at 1:30 P.M., in order to permit the taking of the deposition of William Lasky (the driver of the cab) at 9:30 A.M., October 14, 1960, at Sunny Acres Sanitarium, where he was then confined as a patient. The objection of the plaintiff was, in part, based on the fact that Section 2319.26, Revised Code, could not be complied with (that is the filing of a deposition one day before trial) and further that because the court, in granting the continuance, coerced the appellant into agreeing to the taking of such deposition on the morning of October 14, 1960, and into permitting it to be read to the jury after the trial was reconvened that afternoon. The record clearly shows that the plaintiff was given the choice of having a mistrial declared and the case returned to the assignment room for reassignment at a later date or to take the deposition of the witness then confined in the hospital. The claim of the defendant that it had not been begligent in believing the witness would be available for trial until it was too late was supported by an affidavit filed with the motion and the testimony of one witness. The testimony of such witness and the affidavit filed with the motion are not a part of the record or contained in the bill of exceptions as certified to by the court. It must be presumed that the court did not abuse its discretion in granting the short continuance and permitting the presentation of the testimony of the only fact witness of the defendant whose testimony is contained in the bill of exceptions. Therefore, without the record of the evidence upon which the court acted in granting the motion for a continuance, a claim of error based on the granting of such motion must be overruled.

The second claim of error concerns the court's charge dealing with the standard of care required of the defendant as a common carrier of passengers. The court granted plaintiff's special request to charge before argument and read the charge requested, defining the duty of the defendant as a common carrier of passengers which was, in fact, the relationship of the defendant's taxicab company to the plaintiff when the accident occurred. The charge, as given, and as set out in the briefs, was a correct statement of the law. However, the charge is not contained in the bill of exceptions. At the conclusion of the court's general charge (except for questions of damage, the duty of the jury in weighing the testimony of witnesses, the electing of a foreman, and the manner of returning a verdict) the court said (addressing counsel) 'Anything further before we go to the damages, if any.' The plaintiff, among other things, then said: 'If your Honor please, you have said nothing so far that I heard about the highest degree of care or any definition of that.'

'THE COURT: I gave that in the charge before argument.'

The record then shows, after considerable argument, the following:

'MR. DAY: But you cannot separate them.

'THE COURT: What else?

'MR. MEANEY: That is all. Thank you.' (Thereupon proceedings were resumed within the hearing of the jury, as...