Pallini v. Dankowski

• Decision Date: 05 March 1969
• Docket Number: No. 68-275,68-275
• Citation: 17 Ohio St.2d 51,245 N.E.2d 353
• Parties: , 46 O.O.2d 267 PALLINI, Appellee, v. DANKOWSKI, Appellant.
• Court: Ohio Supreme Court

Page 51

17 Ohio St.2d 51

245 N.E.2d 353, 46 O.O.2d 267

PALLINI, Appellee, v. DANKOWSKI, Appellant.

No. 68-275.

Supreme Court of Ohio.

March 5, 1969.

Syllabus by the Court

1. The word 'ahead,' as used after 'assured clear distance' in the first paragraph of Section 4511.21, Revised Code, means to the front of and within the directional line of travel of a motorist whose conduct allegedly violates such statute. (Section 4511.21, Revised Code, construed.)

2. The trial court, in a civil action, may properly refuse to give a requested special instruction before argument to the jury unless such instruction is both a correct statement of law and pertinent and applicable to an issue raised by the evidence in the case. (Scott v. Hy-Grade Food Products Corp., 131 Ohio St. 225, 2 N.E.2d 608, and Sheen v. Kubiac, 131 Ohio St. 52, 1 N.E.2d 943, followed.)

Domenica Pallini brought this action in the Court of Common Pleas of Cuyahoga County against David Dankowski to recover damages for injuries she sustained when allegedly struck by defendant's automobile on January 12, 1961. Plaintiff's petition states that she was struck at about 6:10 p. m., while crossing East 71st Street in the village of Cuyahoga Heights in a crosswalk. She alleges that defendant was negligent in failing to keep his automobile under control, in failing to keep a lookout, in failing to sound his horn or give warning of his approach, and in failing to reduce his speed or divert his automobile to avoid striking plaintiff.

Defendant admits that a collision occurred between his automobile and the plaintiff, at substantially the time and place alleged in the petition, but denies the manner. In his answer he alleges that plaintiff suddenly and unexpectedly ran across the street, coming into contact with the left side of his automobile, and that any injuries sustained were proximately caused or contributed to by her own negligence.

At the trial plaintiff testified that she got out of her daughter's car, which was northbound on East 71st Street, waited while another northbound car passed, and then walked in the crosswalk across the street to the point where she was struck. She related that she saw a car 'way, way down' to her left, but saw no car to her right, the direction from which defendant was approaching. She recalled coming into contact with the car, but did not know with what portion, nor did she remember what happened after that.

Defendant testified that he first saw plaintiff a split second before the impact, three or four feet to the left of his left front fender, and that he braked and pulled the wheel to the right. He further testified that it was dark, that plaintiff wore dark clothing, that he was going about 20 miles per hour in the inside southbound lane, about three feet to the right of the centerline, with his headlights on, and that plaintiff struck the left side of his car. Tow boys who witnessed the accident substantially confirmed these facts and one added that plaintiff ran across the street, south of the crosswalk. Plaintiff was found seven feet south of the crosswalk, two feet west of the center line, and defendant's car stopped some 30 feet beyond, angled toward the west curb. There was no evidence of damage to the front of defendant's car, but there was damage to the left side in the area of the driver's door and windshield after the accident.

Prior to closing argument, plaintiff requested a special instruction based upon an asserted violation of Section 4511.21 of the Revised Code, the 'assured clear distance ahead' statute, which was refused by the court. The cause was submitted to the jury, which returned a verdict for the defendant.

Upon appeal, the Court of Appeals found that the failure of the trial court to give plaintiff's requested assured clear distance instruction constituted prejudicial error, and reversed.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Tricarichi & Carnes and Charles S. Tricarichi, Cleveland, for appellee.

Jamison, Ulrich, Johnson, Burkhalter & Hesser, Richard O. Horn and William E. Armstrong, Cleveland, for appellant.

HERBERT, Judge.

The questions now before us are whether the requested special instruction was a correct statement of law, and, if so, whether the instant record contains evidence warranting a special instruction concerning defendant's possible violation of Section 4511.21 of the Revised Code, the assured clear distance statute. See Lackner v. Burns (1964), 175 Ohio St. 469, 196 N.E.2d 447; Bradley v. Mansfield Rapid Transit, Inc. (1950), 154 Ohio St. 154, 93 N.E.2d 672; Washington Fidelity Nat. Ins. Co. v. Herbert (1932), 125 Ohio St. 591, 183 N.E. 537. Cf. Smith v. Flesher (1967), 12 Ohio St.2d 107, 233 N.E.2d 137.

The pertinent portion of the instruction reads as follows:

'The court instructs you that in determining whether or not the defendant was negligent in striking the plaintiff with his automobile as she was attempting to cross the highway, under certain circumstances, negligence arises as a matter of law by reason of the violation of certain specific statutory requirements. One of the assignments of negligence as set forth in the petition, which has been read to you, is that the driver of a motor vehicle drove the same at a greater rate of speed than would permit him to bring the vehicle to a stop within the assured clear distance ahead.' (Emphasis added.)

The remainder of the instruction contains a correct statement of the law relative to assured clear distance.

If evidence had been introduced which would enable reasonable minds to conclude that defendant's automobile struck plaintiff, the question of whether defendant's automobile struck plaintiff or plaintiff ran into the side of defendant's automobile would have been one of fact for the jury. The disputed special instruction assumes that the defendant struck plaintiff with his automobile and, in that regard, was erroneous.

A second error appears in the instruction wherein the jury was to be told that the petition contained an allegation of defendant's violation of the assured-clear-distance-ahead statute. No such allegation appears in...