Oatman v. Frey

• Decision Date: 14 February 1958
• Parties: , 9 O.O.2d 126 OATMAN, Appellee, v. FREY, Appellant.
• Court: Ohio Court of Appeals

Page 72

108 Ohio App. 72

160 N.E.2d 664, 9 O.O.2d 126

OATMAN, Appellee, v. FREY, Appellant.

Court of Appeals of Ohio, Logan County.

Feb. 14, 1958.

Syllabus by the Court.

1. Where an accident is unavoidable, there can be no negligence; and where one of the parties involved in an accident is negligent such accident cannot be said to be unavoidable.

2. Error cannot be predicated on the failure of a court to charge on a particular phase of a case, unless such omission is called to the court's attention and specific instructions are presented to the court, with the request that they be given to the jury, and such request is refused.

3. Where, in a negligence action, the pleadings do not set forth a defense of unavoidable accident and the defendant's own testimony gives support to the claim that he was guilty of negligent conduct which resulted in plaintiff's injuries, it is not error for the court not to charge on the subject of unavoidable accident.

4. Where the jury, in a negligence action returns a verdict for plaintiff, the caption of which correctly identifies the parties but in the body of which the plaintiff's name is erroneously inserted in place of the defendant's name, and, after discovery of such irregularity, the jury foreman alone replies 'it is okey with me if it is with the rest' to the judge's inquiry whether the members of the jury agreed for the clerk to write in defendant's name and erase the plaintiff's name, the clerk makes such change, and the members of the jury, after the corrected verdict is read to them and the court asks them 'is this your verdict?' reply in the affirmative; such irregularity in the body of the verdict is not prejudicial and does not require a reversal.

Hover, Smith & Shellhaas, Bellefontaine, for appellant.

Long, Long & West, Bellefontaine, and Andrew J. White, Jr., Columbus, for appellee.

MIDDLETON, Presiding Judge.

This appeal is from a judgment entered by the Court of Common Pleas on a verdict for $11,500 in favor of the plaintiff in an action for personal injuries arising out of an automobile collision.

The first error assigned is that the court erred in refusing to admit certain evidence offered by the defendant.

During the examination of plaintiff's husband on cross-examination he was asked:

'Q. Mr. Oatman, you recall having a conversation at the hospital after the accident with Rev. Frey and his wife--meeting them and talking about this? A. I met them at the hospital, but I just can't recall a thing that we said.

'Q. Did you at the time you talked to them at the hospital say to them that it was just one of those things, an unavoidable accident? A. I don't know.

'Q. Have you recently made any statement to either of them to that effect? A. I don't believe.

'Q. Did you during that conversation at the hospital make the statement you had seen them coming, slowed up, and then decided you could make it across the bridge? A. I don't know.'

Later, on direct examination, the defendant's wife testified 'Q. Did you at any time after this accident see or talk to the driver of the other car--Mr. Oatman? A. In the hospital I did.

'Q. When was that with reference to the accident--how soon afterward? A. I can't tell you just how soon it was. As soon as we got to the hospital, but I don't know just how long it took us to get there.

'Q. Was your husband present at the time? A. He was in the same room.

'Q. Did you hear any conversation between Mr. Oatman and your husband?'

To this last question the plaintiff objected, and the objection was sustained by the court. Refusal to admit this testimony is the error complained of in the first assignment of error.

After the sustaining of the objection, the defendant abandoned further examination on the subject and did not proffer the answer that the witness would have given if permitted to answer.

Later, the defendant was called as a witness and testified concerning this conversation, as follows:

'Q. Rev. Frey, Mr. White yesterday on cross-examination asked you some questions in regard to conversations that you had with Mr. Oatman at the hospital, and I would like for you to state again what those conversations were? A. Mr. Oatman came over to the cot on which I was lying to speak to me, and to allay my fears that someone might have been very seriously injured, and stated the fact that there is no one seriously injured, as did both of the doctors, and then said to me 'I approached the bridge, knowing the bridge was there, and having seen the lights of a coming car I hesitated for a moment to enter the bridge or to approach the bridge, and then decided I had ample time to make it and proceeded to cross,' and then adds, 'It is just one of those things that was unavoidable.''

Thus the conversation concerning which plaintiff's wife was asked, did go to the jury. Mr. Oatman did not deny the conversation; he simply said he did not know whether such a conversation took place. The questions asked Mrs. Oatman would in no way impeach the testimony of her husband or contradict his testimony. Further, the subject of the conversation was abandoned after the court sustained the objection, and no proffer of the answer expected was made. The court finds this assignment of error not well taken.

Defendant's second assignment of error sets forth two claimed errors. First, the failure of the court to charge on the issue of unavoidable accident. Second, that the court erred in charging the jury on the question of punitive damages after having directed a verdict for defendant on that phase of the case.

This is a negligence action and the only question involved is whether the defendant was negligent and whether his negligence was the proximate cause of the injuries complained of. The plaintiff claims that the defendant was negligent, and this negligence the defendant denies.

If the accident was unavoidable there could be no negligence, and the converse is therefore true, that if one of the parties was negligent then the accident could not be said to be unavoidable.

The subject of unavoidable accident is very fully discussed in the case of Uncapher v. Baltimore & Ohio R. Co., 127 Ohio St. 351, 188 N.E. 553. In the second paragraph of the syllabus the court states:

'Unavoidable accident occurs only when the disaster happens from natural causes, without negligence or fault on either side.'

Judge Stephenson in his opinion makes the following statement, 127 Ohio St. at page 358, 188 N.E. at page 556:

'* * * An unavoidable accident is such an occurrence or happening as, under all the attendant circumstances and conditions, could not have been foreseen or anticipated in the exercise of ordinary care as the proximate cause of injury by any of the parties concerned.

'Can there be an unavoidable accident when one of the parties is negligent? Most certainly not.'

On page 359 of 127 Ohio St., on page 556 of 188 N.E., the following statement appears:

'Under this state of the law, how must the pleader invoke the defense of unavoidable accident? Simple enough. He must admit the accident in question, and aver that plaintiff was not negligent in any respect, and that he (defendant) was not negligent in any respect.'

Upon hearing in the Court of Appeals, that court stated the law to be that a 'Court may charge upon unavoidable accident only when pleadings or defense and evidence raise [the] issue.'

With this statement the Supreme Court finds no error. The pleadings in the case here on appeal do not set forth a defense of unavoidable accident.

The testimony of defendant and the testimony of defendant's wife give support to the claim that the defendant was guilty of negligent conduct which resulted in plaintiff's injury.

The defendant, on cross-examination, testified in part as follows:

'Q. So that from a point from quarter to half a mile south from the point of collision almost up to the point of collision you continued to maintain your speed, although you were blinded by lights and you were watching approaching traffic, is that correct, sir? A. That is correct until the point at which I saw the barricade,--not the barricade, the guard rail.

'Q. When you were blinded by the lights, Mr. Frey, way didn't you stop? A. Because normally one does not stop even though they are blinded by lights.

'Q. Well, do you not think it would be the act of a reasonably prudent man when he can't see because he is blinded by lights to bring his vehicle to a stop until he can again see? A. If I were totally blinded, indeed.

'Q. Well, to the extent he were only partially blinded he ought to slow his speed if your theory is correct, is that what I am to believe? A. I would think not necessarily.

'Q. In other words, in your opinion even though one is partially blinded he may continue to drive his automobile at whatever speed he chances to be going without reducing his speed and take his chances on what may be ahead, is that what you believe? A. Yes.

'Q. Is that what you did that night, sir? A. Yes.

'Q. Pastor Frey, whatever the condition was on that road that night at the time when the collision occurred and at that place, the condition was substantially the same as it had been when you came south on Route 117 earlier in the day? A. Correct, to my knowledge.

'Q. And you passed over this loose gravel or stone on that road as you came south that day? A. Possibly.

'Q. And the truth of the matter is you simply forgot that you might have loose gravel to contend with if an emergency arose, didn't you? A. Definitely.

'Q. And you were quite aware from your experience in driving automobiles that upon occasion you may anticipate that there will be loose gravel or stone on a road? A. Right.

'Q. And you will agree with me you ought to take such situations into consideration as you drive along a road? A. I do, sir.'

Mrs. Frey, who was riding with her husband, testified on cross-examination as follows:

'Q. As a matter of fact, did you not say the...