Nunn v. Davidson
| Decision Date | 11 January 1937 |
| Parties | NUNN v. DAVIDSON (two cases). |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. The driver of a vehicle reaching the middle of a street intersection is under no legal duty to look for approaching vehicles, but is only required to exercise ordinary care and prudence for his own safety while crossing, and the question whether he did so is one of fact for the jury.
2. The failure of a driver of a vehicle to anticipate negligence on the part of an operator of an on-coming vehicle does not defeat an action by such driver for injuries occasioned by the negligence of the operator of such on-coming vehicle.
3. Where, in an action for wrongful death, the trial court failed to charge on the question of contributory negligence of a beneficiary, which, if proven, would merely preclude the beneficiary from being considered by the jury in reaching the aggregate compensation of loss to all beneficiaries, such failure is one of omission rather than commission, and counsel for defendant having failed to seasonably call the attention of the court to its omission, there is no such error as will warrant a reversal.
Henry E. Beebe, of Cincinnati, for appellant.
August A. Rendigs, Jr., and Scott H. Ray, both of Cincinnati, for appellees.
These cases are presented on appeal on questions of law from the court of common pleas of Hamilton county. Since they involve the same state of facts, they are considered together.
Ida Nunn, appellee, a woman 59 years of age, alleged that she was operating her 1930 Essex coach on the afternoon of June 25, 1935, in a westerly direction on Feldman avenue, and that her husband, Elmore E. Nunn, age 60 was seated in the front seat to her right; that when the automobile reached the intersection of Feldman and Carthage avenues she brought her car to a stop, looked to the left and saw no vehicle approaching, looked to the right and saw a truck coming south on Carthage avenue between half a block and a block away that she felt she had ample time to cross the street; that she shifted into low gear, then into second, and started across the street, looking ahead of her to see if pedestrians were in her path; that when she was half way across the street she looked to the right and saw that the truck was nearly upon her; that Davidson's authorized agent and servant was operating the truck in a southerly direction at a high and excessive rate of speed, namely at a rate greater than 45 miles per hour; that the driver of the truck failed to give a signal of any description so to warn her of the approaching danger; that he failed to equip his truck with sufficient brakes to control it; that he failed to keep a proper lookout ahead; that he failed to keep his truck under proper control; that he failed and neglected to stop his truck and so steer and guide it after he saw, or in the exercise of ordinary and reasonable care, should have seen the automobile of Mrs. Nunn, and further that he failed to avoid striking it, resulting in the truck striking the automobile, damaging it, seriously injuring Mrs. Nunn, and causing the death of her husband, Elmore E. Nunn.
DeLoos Davidson, appellant, admitted he owned the truck and that there was a collision. He alleged that the collision was caused by the sole negligence of Mrs. Nunn; that she failed to stop at the intersection before driving across Carthage avenue; that she failed to yield the right of way to the truck; that she operated her automobile without regard to the general and usual rules of the road; that she drove her machine at a high and dangerous rate of speed; that she failed to keep a proper lookout for a machine approaching from her right; that she failed to signal in any way her approach; and that by reason of her sole negligence the collision occurred.
The premises were viewed and the trials resulted in a verdict of $6,000 in favor of Mrs. Nunn, and a verdict of $10,000 in favor of the administrator of the estate of Elmore E. Nunn.
Appellant submitted two interrogatories, both of which were answered in the negative:
'When the front end of plaintiff's auto reached the center line of Carthage avenue, did she look in the direction in which the truck of the defendant was approaching?
'When the front end of plaintiff's auto reached the center of Carthage avenue, was there anything to obstruct her view of the approaching truck of the defendant?'
The court will first dispose of the Ida Nunn case.
Appellant contends, first, that the verdict is contrary to the weight of the evidence in that the appellee was guilty of negligence that directly caused the accident collision; and, second, that the verdict is excessive and appears to have been given under the influence of passion and prejudice.
The record shows that appellee was familiar with this intersection. She was returning from a visit to her daughter who lived on Feldman avenue, east of Carthage. Appellee formerly lived in the house, then occupied by her daughter, and she was in the habit of visiting her daughter two or three times a week.
Disinterested witnesses testified that appellee stopped at the stop sign, that she moved slowly across the intersection, and that she was three-fourths of the way across when struck by the truck, and that the truck of the appellant was going 40 miles per hour. The exhibits show that the right door and side of the automobile were badly damaged. The record states that the machine was pushed to the southwest corner of the intersection, over the curb, across the sidewalk, and landed on its side.
The question of appellee's negligence, if any, was one of fact and was properly submitted to the jury. It was a question upon which reasonable minds might reasonably arrive at different conclusions.
Appellant lays stress on the answers to the two interrogatories. The jury stated that the appellee, upon reaching the center line of Carthage avenue, did not look in the direction in which the truck was approaching, and that at that time and place there was nothing to obstruct her view of the approaching truck. This did not establish that appellee was guilty of contributory negligence as a matter of law. She was under no legal obligation to look when she reached the center of Carthage avenue. She was only required to exercise ordinary care and prudence for her own safety while crossing, and the question as to whether she did so was properly submitted to the jury. Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197, 43 N.E. 207, 32 L.R.A. 276. Appellee testified she looked to the left and then to the right. Upon looking to the right she saw a truck coming between half a block and a block away. The failure of the appellee to anticipate negligence on the part of the appellant does not defeat her action. Trentman v. Cox, 118 Ohio St. 247, 160 N.E. 715.
Appellant had an absolute right of way, being on the preferential highway, providing he proceeded in a lawful manner. This was for the jury to decide. Appellee's witnesses testified appellant's agent and servant was operating the truck at 40 miles per hour. Appellant's agent testified he was going from 20 to 25 miles per hour. He also stated that the automobile came right out in front of him; that the first time he saw Mrs. Nunn she was half way across the intersection. This contradiction in the testimony is for the jury to adjust in accordance with their conception of the credibility of the witnesses.
Appellant contends the verdict is excessive and appears to have been given under the influence of passion and prejudice.
Appellee was 59 years of age, in apparent good health. She received a scalp wound, and a cut under the chin, severing several large blood vessels and deep enough to expose the roots of her tongue. Her face was permanently disfigured. Her left upper arm received a cut 6 inches long. Her...
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