Purdy v. Kerentoff

• Decision Date: 21 December 1949
• Docket Number: 31711.
• Citation: 152 Ohio St. 391,89 N.E.2d 565
• Parties: PURDY v. KERENTOFF.
• Court: Ohio Supreme Court

89 N.E.2d 565

152 Ohio St. 391

PURDY v. KERENTOFF.

No. 31711.

Supreme Court of Ohio.

December 21, 1949

Syllabus by the Court.

Whether a motion of defendant made at the close of plaintiff's case to direct a verdict should be sustained depends upon the evidence and reasonable inference therefrom treated in the light most favorable to plaintiff.

The plaintiff below, as administrator of his wife's estate, sought damages from defendant for wrongfully causing the death of his wife. At the close of plaintiff's case the court directed a verdict for defendant.

Upon appeal to the Court of Appeals the judgment of the trial court was reversed and the case was remanded to the trial court.

Plaintiff's evidence showed that in the evening of July 19, 1946, Purdy accompanied by his wife, was driving an automobile south on route 25, a divided highway with two lanes on the west for southbound traffic and two lanes on the east for northbound traffic. The paved portions of these southbound and northbound parts of the highway were each 22 feet wide. There was a 'divider' strip 10 1/2 feet wide between the southbound and northbound portions. The right rear tire of the Purdy automobile became deflated or flat and Purdy pulled over (east) to the divider strip and parked the car with the right rear wheel about one foot on the paved portion of the highway so that he could have a good foundation for his bumper jack. While Purdy changed the tire his wife stood behind him on the paved portion of the highway right back of the fender, facing east. The wife held a flashlight, directing the light down on the tire. While Purdy was changing the tire twenty-five or thirty cars passed. On cross-examination Purdy was asked and answered as follows:

'Q. And why did you not pull over to the right? A. The traffic was heavy, to avoid another accident. * * *

'Q. You drove it off. You intentionally drove it on the grass under its own power? A. Yes, sir.'

There was a berm 20 feet or more on the west side of the highway 'sort of down grade,' generally a slight slope. As Purdy was about to let the car down off the bumper jack the collision occurred.

Defendant was called for cross-examination and testified that he was traveling south on this highway behind another car, at a speed of about 30 miles per hour. He decided to pass the car which was ahead and 'pulled out to pass and accelerated my car and as the car straightened up my lights shone on the highway on this Mrs. Purdy as they were parked, I swerved my car to the right and applied my brakes as quickly as I could stop and I hit Mrs. Purdy with the left side of my car.'

Defendant testified also that he was about 60 feet from Mrs. Purdy when he first discerned her. Asked how far behind the truck he was at the time he turned to the left to go around, defendant answered 'Pulled up very close and then pulled out.'

The court had before it the following testimony of Purdy:

'When he hit my wife she was standing beside me with the light in her hand. My car went over. His car threw her over the bumper and caught her in between his fender and mine and knocked my car off the jack and the handle of the jack hit me and knocked me on the other highway and rolled my car about ten feet forward. I jumped up and ran around to where she was lying in the middle of the highway on the flat of her back and her flesh was torn and strewed over the highway and the side of my car, inside the car where the window was rolled down and his car was sitting about thirty-five or forty feet ahead of my car across the road headed east.'

Purdy testified further that at the time of the impact Mrs. Purdy 'was standing right back of the hind fender which would put her just about 18 inches out in the highway.' Mrs. Purdy died on the night of the accident.

We have outlined some of the evidence most favorable to the plaintiff. Borrowing from the opinion of the Court of Appeals: 'In some respects there is evidence strongly in conflict with this, but on the motion on which the trial court acted it was bound to view the evidence and the reasonable inference from it in the light most favorable to plaintiff.'

The case is here following the allowance of a motion to certify the record.

Ritter & Boesel, toledo, for appellant.

Smith & Ells, Toledo, for appellee.

TURNER, Judge.

The question before us is whether either Mr. Purdy or his wife was guilty of contributory negligence as a matter of law.

It needs no citation of authority to establish that if Mrs. Purdy was guilty of negligence which was a proximate cause of her injury, no recovery may be had.

If Mr. Purdy was guilty of such contributory negligence, no recovery may be had in this case. (The allegations of the amended petition show that Mr. Purdy is the only heir and next of kin.) See Wolf, Adm'r, v. Lake Erie & Western Ry. Co., 55 Ohio St. 517, paragraph 3 of the syllabus, 45 N.E. 708, 36 L.R.A. 812.

The weight of the evidence is not involved. It was the duty of the trial court to view the evidence and the reasonable inference from it in the light most favorable to plaintiff.

In the case of Wilkeson, Adm'r, v. Erskine & Son, Inc., 145 Ohio St. 218, 61 N.E.2d 201, 202, we held:

'2. Where a defendant, at the close of all the evidence, moves the court to direct a verdict in its favor, the plaintiff is entitled to have the evidence construed most strongly in his favor. Hamden Lodge No. 517, I. O. O. F., v. Ohio Fuel Gas Co., 127 Ohio St. 469, 189 N.E. 246, approved and followed.

'3. Where, on the trial of a cause, substantial evidence has been introduced from which it might reasonably be concluded that defendant was guilty of negligence which was the proximate cause of plaintiff's injury, the court may not sustain defendant's motion to direct a verdict. The test is not whether the trial judge would set aside a verdict in favor of plaintiff on the weight of the evidence. (Ibid.)'

Under the circumstances of the instant case the trial court should have taken into consideration that Mrs. Purdy had...