Parton v. Weilnau

• Decision Date: 29 April 1959
• Docket Number: No. 35574,35574
• Citation: 169 Ohio St. 145,158 N.E.2d 719
• Parties: , 8 O.O.2d 134 PARTON, Appellant, v. WEILNAU, Adm'x, Appellee.
• Court: Ohio Supreme Court

Page 145

169 Ohio St. 145

158 N.E.2d 719, 8 O.O.2d 134

PARTON, Appellant, v. WEILNAU, Adm'x, Appellee.

No. 35574.

Supreme Court of Ohio.

April 29, 1959.

Syllabus by the Court

1. Where upon the evidence reasonable minds cannot conclude that an automobile driver was under the influence of alcohol at the time of a collision or where upon the evidence reasonable minds cannot conclude that, if he was under the influence of alcohol, that influence was a proximate cause of the collision, an issue as to whether such driver was negligent in driving under the influence of alcohol should be withdrawn from consideration by the jury.

2. A driver of an automobile is not negligent in failing to heed the siren or flasher signals on a police car on an emergency run where there is no evidence tending to prove that he heard the siren or saw the signals and no evidence that will support a reasonable conclusion that he should, in the exercise of ordinary care, have heard or seen them.

3. Where a vehicle 'is not proceeding in a lawful manner in approaching or crossing' an intersection, such vehicle loses its preferential status. Morris v. Bloomgren, 127 Ohio St. 147, 187 N.E. 2, 89 A.L.R. 831, approved and followed.

4. By reason of Section 4511.03, Revised Code, an emergency vehicle may lawfully proceed past a red traffic signal but only if, on approaching such signal, it slows down as necessary for safety to traffic and only if it proceeds cautiously past such signal with due regard for the safety of all persons using the street or highway.

5. Where the effect of the judgment of the Supreme Court will be a remand of a cause to the Common Pleas Court for a new trial, the Supreme Court will ordinarily pass upon all those errors assigned by an appellant which involve matters likely to arise on a new trial, but it will not, except where necessary to support its judgment, pass upon an assigned error which does not relate to a matter likely to arise on a new trial. (Section 2505.21, Revised Code, construed and applied.)

6. Where two police officers of equal rank and responsibility are given possession of a police car and each has authority to drive it and they determine between themselves when each shall drive, they are not engaged in a joint enterprise in operating that car on an emergency run so as to require imputation of the negligence of the driver to the one not driving.

7. Assignments of error of an appellee who has not appealed from a judgment may be considered by a reviewing court only when necessary to prevent a reversal of the judgment under review. (Section 2505.22, Revised Code, construed and applied.)

Plaintiff instituted this action in the Common Pleas Court of Lucas County by filing a petition alleging 'that Jackman Road * * * runs in a general northerly-southerly direction; that Laskey Road * * * runs in a general easterly-westerly direction; that * * * Jackman Road and * * * Laskey Road interest at approximately right angles * * * approximately * * * one-fourth * * * mile north of the city limits of Toledo * * *; that on or about September 14, 1955, at approximately 1:05 a. m., plaintiff was riding in an automobile being driven in a westerly direction on Laskey Road; that at the intersection of Laskey Road and Jackman Road, the automobile in which plaintiff was riding was struck forcibly by an automobile being operated in a southerly direction by' the decedent 'Weilnau,' herein referred to as decedent; 'that at the time' plaintiff 'was on active duty as a police officer; that the vehicle in which he was riding was an official police automobile; that said automobile carried clearly discernible official markings; that said automobile was equipped with red flasher lights and a siren; that said flasher lights and siren were of the type customarily installed on police and emergency vehicles * * *; that as the automobile in which he was riding approached the intersection of Jackman and Laskey Roads, the red flasher lights were operating and * * * the siren * * * was operating continuously; * * * that' the 'automobile in which plaintiff was riding was on an emergency call * * *; that' decedent 'was driving his automobile at a speed greater than 50 * * * miles per hour; that he was driving * * * at a rate of speed which was unreasonable and dangerous to life and limb, considering the width of the road, volume of traffic and locality; that he failed to keep his automobile under proper control and failed to operate it in such a manner as to be able to stop within the assured clear distance ahead; that he was driving * * * while under the influence of alcohol; that he wholly failed to heed the siren and flasher light signals being given at that time and place by the vehicle in which plaintiff was riding; that he wholly failed to yield the right of way to the auto in which plaintiff was riding as required by the statutes * * * of Ohio * * *; that' decedent 'in so operating his vehicle, was guilty of negligence; and that this negligence was the direct proximate cause of the * * * collision, resulting in * * * injuries to the plaintiff.'

There are no other allegations in the petition as to any act or failure to act of decedent.

Defendant filed an answer denying the negligence of decedent and alleging negligence of plaintiff, and also filed a cross-petition against plaintiff for damages for personal injuries to decedent and for wrongfully causing the death of decedent.

The evidence discloses that Jackman and Laskey Roads ran in the directions and intersected, as alleged, that they were outside the city limits, and that the police car in which plaintiff was riding collided at that intersection with the car driven by decedent at about the time alleged, causing serious injuries to plaintiff and also causing injuries to decedent which resulted in his death.

Although the driver of the police car in which plaintiff was riding testified that the left front of decedent's car collided with the right front of the police car, the photographs of the two cars indicate clearly that the left side of decedent's car as far back as the driver's door was apparently struck by the police car, and the course of the vehicles after the collision tends to substantiate this.

Admittedly, there was a traffic light at the intersection and it was green for decedent's car and red for the police car at the time of the collision. The undisputed evidence discloses that the police car, which was on an emergency run with red flasher light on and siren blowing, was going at least 40 miles an hour through the red light. There is evidence that decedent's car was going about 50 miles an hour and no evidence that it was going any faster than that.

At the conclusion of all the evidence, the trial court directed the jury to return a verdict for plaintiff on defendant's cross-petition and then submitted the case to the jury which returned a verdict for plaintiff for $26,000. Defendant's motion for judgment non obstanti veredicto was overruled, judgment was rendered for plaintiff on that verdict, and defendant's motion for new trial was overruled.

On appeal to the Court of Appeals, that judgment was reversed, but the Court of Appeals refused to render final judgment for defendant and remanded the cause to the Common Pleas Court for a new trial.

The cause is now before this court on plaintiff's appeal from that judgment, pursuant to allowance of plaintiff's motion to certify the record.

George R. Effler, Cyrus G. Jaffee and Willard A. Johnson, Toledo, for appellant.

Marshall, Melhorn, Bloch & Belt and Wilbur C. Jacobs, Toledo, for appellee.

TAFT, Judge.

Plaintiff's first assignment of error is that 'the Court of Appeals erred in reversing and not in affirming the judgment of the' trial court; and it will be considered with the fifth assignment that 'the judgment of the Court of Appeals is contrary to law' and with the fourth assignment that 'the Court of Appeals erred in finding and holding that the Court of Common Pleas erred in submitting to the jury the issue of driving under the influence of alcohol by the defendant's decedent.'

The only evidence which plaintiff relies upon with respect to that issue is defendant's exhibit 32ZZ, the testimony of a state highway patrolman and the testimony of a police officer who made a laboratory analysis of decedent's blood.

Defendant's exhibit 32ZZ is a four-page written report of the accident, rendered on an accident report form by two Toledo patrolmen to an inspector of the Toledo Police Department, and was offered by defendant, after identification by the Toledo Law Director, 'solely for the purpose of impeaching' the testimony of the driver of the police car. Plaintiff's attorney, though not objecting to its admission in evidence when offered, stated that he did 'not think it * * * competent.' The portion now relied upon by plaintiff as evidence that decedent was under the influence of alcohol reads:

'In answer to may question (Officer Warner) as to whether Mr. Weilnau had any alcoholic beverage, Mr. Weilnau stated yes, that he had a small drink before dinner and also had two Scotch and soda drinks over a period of three hours the last one being about one half hour before the accident. Mr. Weilnau stated he never saw the other car and didn't know what happened. These statements were made in the presence of both Officers Warner and Beidleman, in Mr. Weilnau's hospital room * * *.' ¹

The testimony of the state highway patrolman relied upon by plaintiff is as follows:

'Q. Did you make an investigation to determine whether or not Mr. Weilnau had been drinking? A. Yes, sir.

'Q. What did you discover? A. Upon talking to him at the hospital I had to get quite close to hear what he was saying and I noticed the odor of alcohol on his breath and I asked him, inquired if he had been drinking and he said he had a couple of drinks at dinner.'

'Q. * * * Just what * * * you did in discovering whether or not...