Paulin v. John R. Jurgensen Co.

• Decision Date: 01 September 1982
• Citation: 7 Ohio App.3d 273,7 OBR 354,455 N.E.2d 524
• Parties: , 7 O.B.R. 354 PAULIN et al., Appellants, v. JOHN R. JURGENSEN CO. et al., Appellees. *
• Court: Ohio Court of Appeals

Page 273

7 Ohio App.3d 273

455 N.E.2d 524, 7 O.B.R. 354

PAULIN et al., Appellants, v. JOHN R. JURGENSEN CO. et al., Appellees. ^*

Court of Appeals of Ohio, First District, Hamilton County.

Sept. 1, 1982.

Syllabus by the Court

For purposes of a Civ.R. 56 motion, alleging contributory negligence per se for failure to observe the assured-clear-distance-ahead statute, R.C. 4511.21, the issue of discernibility of a manhole cover raised three to four inches in the path of the driver in a public roadway was a question for the jury.

Chalfie & Chalfie Co., L.P.A., James J. Chalfie and Bruce B. Whitman, Cincinnati, for appellants.

David P. Faulkner, Cincinnati, for appellee John R. Jurgensen Co.

Daniel J. Schlueter, Cincinnati, for appellee city of Cincinnati.

PER CURIAM.

This cause came on to be heard upon an appeal from the Court of Common Pleas of Hamilton County.

Plaintiffs-appellants filed their complaint asserting in five separately stated causes of action that they were damaged, in person and property, as a proximate result of the negligence or the willful and wanton misconduct of defendants-appellees in causing a manhole cover to be raised on a public street, in connection with street repairs, which obstruction was collided with as Mary Paulin drove her automobile over it. In due course, appellees filed motions for summary judgment, supported by the deposition of Mary Paulin, which motions were opposed by appellants, supported by several affidavits. After considering memoranda and arguments, the trial court granted said motions, rendering summary judgment in favor of appellees. An opinion was filed by the court, entered October 30, 1981, giving as the reason for granting summary judgment the contributory negligence of Mary Paulin in failing to observe the assured-clear-distance-ahead rule set forth in R.C. 4511.21, although rejecting the argument most vigorously pressed by appellees that Paulin had failed to behave prudently with respect to a discernible object in her pathway under the "known peril" rule of Raflo v. Losantiville Country Club (1973), 34 Ohio St.2d 1, 295 N.E.2d 202 . Appeal was timely taken therefrom with three assignments of error presented for review, all of which, however, direct themselves to the ultimate asserted error in granting the Civ.R. 56 motion.

We have had many occasions to examine the office of the motion for summary judgment in connection with assertions of contributory negligence. It is said that, in the usual course, the question of contributory negligence is peculiarly a question for the jury. See, e.g., Joseph v. Portsmouth (1975), 44 Ohio St.2d 155, 339 N.E.2d 622 ; Clark v. Becker Discount Drug Co. (1975), 43 Ohio App.2d 126, 322 N.E.2d 679 ; Mizenis v. Sands Motel, Inc. (1975), 50 Ohio App.2d 226, 362 N.E.2d 661 . While summary judgment upon the point may be appropriate under certain circumstances, e.g., Leighton v. Hower Corp. (1948), 149 Ohio St. 72, 77 N.E.2d 600 ; Ashcraft v. Lodge (1963), 118 Ohio App. 506, 192 N.E.2d 789 , appeal dismissed, 175 Ohio St. 232, 193 N.E.2d 85, it is nevertheless clear that it is not appropriate where there exists any genuine issue of material fact manifested by the properly cognizable evidentiary material placed before the trial court. Civ.R. 56(C). E.g., Bober v. Cincinnati Shaper Co. (Ohio App.1974), 322 N.E.2d 305 ; Norman v. Thomas Emery's Sons, Inc. (1966), 7 Ohio App.2d 41, 218 N.E.2d 480 ; Burgard v. Eff (1965), 1 Ohio App.2d 483, 205 N.E.2d 400 . So here, where we conclude from a review of the record, including the pleadings, the deposition of appellant and the two affidavits submitted by appellant, that the case was simply not one in which reasonable minds could come to but one conclusion, adverse to appellants. See Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 390 N.E.2d 810 ; Thomas H. Maloney & Sons, Inc. v. E.W. Scripps Co. (1974), 43 Ohio App.2d 105, 334 N.E.2d 494 , certiorari denied, 423 U.S. 883, 96 S.Ct. 151, 46 L.Ed.2d 111.

Thus, while appellees rely upon the assured-clear-distance-ahead rule and upon the "known peril" rule of Raflo, supra, the record clearly demonstrates the existence of a genuine issue as to each. As to the first of these defenses, while it is conceded that appellant in fact saw the raised manhole before she ran her car over it, it is clear that it only became visible to her when she was but ten feet away, and that she would have been prevented from taking evasive action by the presence of an oncoming car in the opposite lane. Instead, she straddled the object with her automobile, it engaged the undercarriage of the car bringing the car to an abrupt stop, causing the damages to the car and injuries to her person complained of. As to its existence as a "discernible object," the affidavit of one Carl Waddell states, inter alia, that his automobile had earlier collided with the raised manhole cover at 6627 Rainbow Lane, that it was raised three to four inches, and that the "dangerousness of the raised manhole cover was not apparent until he was almost on top of the manhole cover, and there were no warnings or barricades."

In Blair v. Goff-Kirby Co. (1976), 49 Ohio St.2d 5, 358 N.E.2d 634 , the Supreme Court first rejected the "collision equals violation" interpretation of R.C. 4511.21, and reiterated the four requirements for a determination of a violation of the assured-clear-distance-ahead statute, namely: (i) the object was ahead of the putative tortfeasor in his line of travel; (ii) it was either stationary or proceeding in the same direction; (iii) it did not suddenly appear in the driver's path; and (iv) it was reasonably discernible to the driver. In the Blair case, as here, the question involved the discernibility of the object, and the philosophy governing the disposition of such question was stated in the following terms:

"That the discernibility of an object, regardless of its size, should be a jury question where the evidence of discernibility is sufficient to make reasonable persons disagree is supported by policy reasons and the holdings of other jurisdictions as well. To begin with, the goals of the tort system are probably better served by a jury determination of the facts than by judge-made determinations of law.

"Especially in cases involving the assured-clear-distance statute, which, by definition, require evaluation of the conduct of the driver in light of the facts surrounding the collision, the judgment of a jury is more likely to achieve a fair result than is a judge-made rule of law. As Dean Prosser says, in doubtful cases questions should be sent to the jury 'because the public insists that its conduct be judged in part by the man in the street rather than by lawyers, and the jury serves as a shock absorber to cushion the impact of the law.'

"Furthermore, as the policy reasons behind holding drivers negligent per se for collisions have become less compelling over the years, virtually all other states, whether their assured-clear-distance rules are statutory or judge made, have held discernibility to be a jury question.

"For the foregoing reasons, we hold that whether an object is discernible under a given set of circumstances is a question of fact, and, when reasonable minds could reach different conclusions from the evidence presented upon the question, a motion for a directed verdict upon that basis should be overruled." Id., at 9-10, 358 N.E.2d 634 (footnotes omitted).

In that case, the court held that a break in the street pavement--a twelve foot by six foot hole, three feet deep--was not, for purposes of a directed verdict, a discernible object in the path of the driver bringing into play a violation of R.C....