Peters v. B. & F. Transfer Co., 39592

• Citation: 7 Ohio St.2d 143,219 N.E.2d 27
• Decision Date: 27 July 1966
• Docket Number: No. 39592,39592
• Parties: , 36 O.O.2d 180 PETERS, Appellee, v. The B. & F. TRANSFER CO., Appellant.
• Court: United States State Supreme Court of Ohio

Page 143

7 Ohio St.2d 143

219 N.E.2d 27, 36 O.O.2d 180

PETERS, Appellee, v. The B. & F. TRANSFER CO., Appellant.

No. 39592.

Supreme Court of Ohio.

July 27, 1966.

Syllabus by the Court

1. Sections 4511.25 and 4511.26, Revised Code, impose a mandatory duty upon the operator of a vehicle to drive solely upon the right half of a roadway except under certain specifically designated circumstances.

2. An unexcused failure to comply with Sections 4511.25 and 4511.26, Revised Code, constitutes negligence per se.

3. The burden of proving a legal excuse sufficient to relieve one of the mandatory duty of driving upon the right half of a roadway rests upon the one who has not performed such duty.

4. An emergency which will relieve a motorist of his duty to comply with a safety statute regulating vehicular traffic must arise as the result of something over which he has no control. A self-created emergency, one arising from the driver's own conduct or from circumstances under his control, cannot serve as an excuse. (Paragraph five of the syllabus of Spalding v. Waxler, 2 Ohio St.2d 1, 205 N.E.2d 890, approved and followed.)

5. The fact that a wet or icy spot on the road may have caused a motorist to lose control of his car is not a sufficient legal excuse to sanction his driving on the wrong side of the road in violation of Sections 4511.25 and 4511.26, Revised Code.

6. Where a plaintiff, by his own fault, caused himself to be placed in a perilous situation, he may recover under the rule of the 'last clear chance' notwithstanding his negligence, if the defendant did not, after becoming aware of plaintiff's perilous situation, exercise ordinary care to avoid injuring him. (Paragraph one of the syllabus of Cleveland Ry. Co. v. Masterson, 126 Ohio St. 42, 183 N.E. 873, 92 A.L.R. 15, approved and followed.)

7. For the doctrine of 'last clear chance' to be applicable it must be proved that the defendant became aware that plaintiff was in a position of peril at a time and distance when, in the exercise of ordinary care, he could have avoided injuring plaintiff.

8. Under our law it is just as pernicious to submit a case to a jury and permit the jury to speculate with the rights of citizens when no question for the jury is involved, as to deny to a citizen his trial by jury when he has the right. (Paragraph six of the syllabus in J. C. Penney Co., Inc. v. Robison, 128 Ohio St. 626, 193 N.E. 401, 100 A.L.R. 705, approved and followed.)

The facts in this case were developed in a trial that lasted 16 1/2 days, during which Anne Peters, hereinafter referred to as plaintiff, offered exhaustive testimony. The occurrence complained of was a collision between an automobile driven by plaintiff and a tractor-trailer driven by one Franks and owned by The B. & F. Transfer Company, hereinafter referred to as defendant. Upon a close examination of the record, the following appears:

On January 22, 1958, plaintiff was driving south on U. S. Route 42. Plaintiff lived in Brunswick, Ohio, and was on her way to work in Medina, Ohio. She had been a licensed driver 'probably about 32 years' and was 'familiar as much as any driver could be, with the stretch of road' in question.

On that same date, Wilson Franks, a driver for defendant, was proceeding north to Cleveland on U. S. Route 42. Franks had been a driver for defendant for 18 years and had driven the Wooster to Cleveland to Wooster route five days a week for 'about five or six' years.

Plaintiff, while 'traveling in what would be termed open country,' rounded a curve and proceeded southerly on what is conceded to be a straight stretch of paved highway that extended 1,000 feet ¹ from a northern point depicted in joint exhibit 1 as 'end of curve' to a southern point depicted thereon as 'crest of hill.' Thus, plaintiff was proceeding up a 2% grade. A driveway (ahead of plaintiff) 60 feet south of the point marked 'crest of hill' was visible to plaintiff so that her range of vision was approximately no less than 1,060 feet.

As plaintiff proceeded south she lost control of her car for no apparent reason. (There is testimony that after the accident a large wet or icy spot was discovered in plaintiff's lane of travel and over which she must have traveled about 350 feet from the point of impact.) Plaintiff testified on direct examination that 'it (the car) zigzagged and then it went into the spin * * * and suddenly it shot over into the northbound lane, and then I went into a skid.' Plaintiff maintains further that she came to a stop for three to four seconds, ² and that she remembers nothing more.

The record discloses that Route 42 at the point of collision is a two-lane macadam highway, 34 feet, 5 inches wide; and that plaintiff's car left skid marks in the northbound, or left of center, lane for 134 feet.

Plaintiff called defendant's driver, Franks, to the stand for cross-examination, and his uncontradicted testimony revealed that he first saw plaintiff when the latter was 'in a crosswise position to the white line in the center of the road' with the rear half of plaintiff's car extending into the northbound lane. ³ Franks stated further that he had no time to deviate to the right or left to avoid plaintiff, and that he did apply the brakes and felt them retard the 11-ton tractor-trailer he was driving.

The collision occurred at a point agreed to be 639 feet south of 'end of curve' and 360 feet north of 'crest of hill.'

Upon this set of facts, defendant's motion for a directed verdict elicited the following response from the trial court:

'I have given a painstaking consideration to the evidence that I heard, and I have had the advantage of reading most of the transcript which the court reporter has put at my disposal, and I come to the regrettable conclusion that the plaintiff must fail in this lawsuit. I find that it appears, as part of the plaintiff's own case, that she was negligent, that there was nothing to explain in a fashion to exonerate her from negligence, and that that negligence was a proximate cause of this accident.

'I further find that the evidence falls short of showing that there was either time or distance in which the defendant truck driver could have either stopped his truck prior to collision or deviate the course of his truck to avoid collision. ⁴

'Under those circumstances, I have no choice but to grant this motion.'

Thereupon, the court directed a verdict for defendant at the close of plaintiff's evidence.

The Court of Appeals, without written opinion, reversed that judgment, stating in its journal entry that '* * * there is error manifest upon the face of the record to the prejudice of the appellant in this, to wit: Direction of a verdict by the trial court in favor of defendant appellee * * *,' and remanded the cause to the Court of Common Pleas for further proceedings according to law.

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

Dudnik, Komito, Nurenberg, Plevin, Dempsey & Jacobson and Marshall I. Nurenberg, Cleveland, for appellee.

Johnson, Weston, Hurd, Fallon, Sullivan & Paisley, S. Burns Weston and R. William Rosenfeld, Cleveland, for appellant.

MATTHIAS, Judge.

The determination of the issues in the instant case requires a review of the evidence. The obligation of review of the evidence is primarily in the Court of Appeals. Unfortunately, in the instant case the Court of Appeals did not render an opinion and gave no reasons for the judgment stated in its journal entry.

In view of this, we are disposed to render the following opinion, stating the basis we consider determinative for the judgment we think proper without recourse to any particular point of error, for the Court of Appeals has specified none.

'Upon motion to direct a verdict the party against whom the motion is made is entitled to have the evidence construed most strongly in his favor. But if, upon any essential issue, after giving the evidence such favorable construction, reasonable minds can reasonably come to but one conclusion, and that conclusion is adverse to such party, the judge should direct a verdict against him.' Hamden Lodge, etc. v. Ohio Fuel Gas Co., 127 Ohio St. 469, 189 N.E. 246, paragraph three of the syllabus. Therefore, because this cause is before this court by virtue of a directed verdict against the plaintiff herein, we must assume the truth of plaintiff's evidence as shown in the record, grant such evidence its most favorable interpretation, and consider as established every material fact which such evidence tends to prove. Burrow, Admx. v. Porterfield, Admr., 171 Ohio St. 28, 30, 168 N.E.2d 137; Wells v. Van Nort, 100 Ohio St. 101, 103, 125 N.E. 910; Higbee Co. v. Jackson, 101 Ohio St. 75, 128 N.E. 61, 14 A.L.R. 131; Hoyer, Admx. v. Lake Shore Electric Ry. Co., 104 Ohio St. 467, 135 N.E. 627. In so doing, we are not unmindful of the general proposition of law stated for a unanimous court by Judge Stephenson in paragraph six of the syllabus in J. C. Penney Co., Inc. v. Robison, 128 Ohio St. 626, 193 N.E. 401, 100 A.L.R. 705: 'Under our law it is just as pernicious to submit a case to a jury and permit the jury to speculate with the rights of citizens when no question for the jury is involved, as to deny to a citizen his trial by jury when he has the right.'

The questions raised by this appeal may be stated as follows: (1) Could reasonable minds come to any conclusion other than that plaintiff was negligent per se for crossing over the center line of the highway upon which she was traveling; and (2), assuming that plaintiff was negligent per se, can reasonable minds come to any conclusion other than that the evidence presented does not warrant application of the doctrine of last clear chance?

The trial court answered both these questions adversely to plaintiff and directed a verdict for defendant at the conclusion of plaintiff's evidence, holding specifically that plaintiff's own evidence...