Reserve Trucking Co. v. Fairchild
| Decision Date | 20 June 1934 |
| Docket Number | 24299 |
| Citation | 191 N.E. 745,128 Ohio St. 519 |
| Parties | Reserve Trucking Co. v. Fairchild. |
| Court | Ohio Supreme Court |
Negligence - "Wilful tort" and "wanton negligence" defined - "Wilful" and "wanton" not synonymous - Contributory negligence not available where wilful tort or wanton negligence caused injury - Charge to jury erroneous - "Wilful and, or, wanton negligence" - Entire want of care necessary to establish wantonness.
The term "wilful tort" implies intent or purpose to injure. (Paragraph one of the syllabus of Payne v. Vance, 103 Ohio St. 59, approved and followed.)
The term "wanton negligence" implies the failure to exercise any care for the safety of those to whom a duty of care is owing when the wrongdoer has knowledge of the great probability of harm to such persons which the exercise of care might avert and exhibits a reckless disregard of consequences. (Paragraph three of the syllabus of Higbee Co v. Jackson, 101 Ohio St. 75, approved.)
The terms "wilful" and "wanton" are not synonymous.
The defense of contributory negligence is unavailing to a party whose wilful tort or whose wanton negligence is the proximate cause of the injury complained of.
The phrase "wilful and, or, wanton negligence" is confusing and misleading, and when employed in a charge to the jury is error.
It is error to charge a jury that "In order to establish wantonness, it is not necessary to show an entire want of care."
On the evening of January 16, 1932, the plaintiff, Richard Fairchild, left his place of residence in Akron for the Silver Lake County Club, some miles distant. He was driving his own Pontiac, coach-type automobile, in which were riding, also, two other young men and three young women. The night was dark and there was a fine, drizzling rain. A mist in the air absorbed the rays of his headlights and limited the range of his vision. He drove northwardly on North Howard Street in the City of Akron, and had ascended some 350 feet of what is known as North Hill when his car suddenly collided with a two and one-half ton International truck, which, at the moment, was standing squarely across the street.
This truck was owned and operated by the defendant, the Reserve Trucking Company of Cleveland, a concern largely engaged in the business of hauling for the Great Atlantic and Pacific Tea Company, and owning a number of trucks more or less exclusively devoted to such hauling. The truck in question, like others belonging to the Reserve Trucking Company, bore upon its sides in large characters the letters "A&P".
The driver of this truck, employed by the Reserve Trucking Company, was Tony Gorsek, who, accompanied by his brother Frank, had brought a meat refrigerator from the warehouse of the Great Atlantic and Pacific Tea Company in Cleveland to a store operated by that company on North Howard Street in Akron. Delivery of the refrigerator was made after the store had closed for business at 10:30 p.m., and the truck was then started back toward Cleveland. According to the statement of Gorsek, he had gotten part way up the hill in question when it occurred to him that the Great Atlantic and Pacific Tea Company might want certain building material, which had been torn out to make place for the cooler, transported to the warehouse in Cleveland, and, accordingly, he undertook to turn the truck around in the street to go back. The street was not sufficiently wide to allow a full turn without backing, and he had gotten the truck into the transverse position, above described, when the collision occurred. Its exact location in the street at the time of the collision is in dispute. Some of the witnesses placed its front wheels against, or even lip and over, the west curb; others stated that the front wheels were several feet from this curb. The street was about forty-two feet wide between the curbs, and the truck was some twenty-three feet long.
The truck had an end gate hinged at the floor and held up by a chain passed through rings or staples along its upper edge. This chain could be let out so as to permit the end gate to swing open and down, or tightened so as to close it up completely. At the time of the collision the end gate was partly open. According to the testimony of Gorsek it was open about eight inches from the top; according to some other witnesses, much farther. The height of the end gate was placed at two feet by some witnesses, and three to four feet by others.
The plaintiff's car collided only with this end gate. Photographs of the car taken after the accident and placed in evidence show that the windshield was not broken, but that the top part of the car back of the windshield was badly crushed in. The plaintiff was sitting at the wheel on the side next to the truck, and the end gate, cutting through the top and side of the car, struck him upon the head, lacerating his face, breaking his jaws, cleaving his palate, and causing other serious injuries.
Both the headlights and the tail light upon the truck were burning, but there was no light upon the end gate, and the tail light was situated underneath the body of the truck and invisible to the plaintiff as he approached.
Tony Gorsek, at the moment of the collision, was sitting in the driver's seat of the truck. His brother, Frank, who was not an employee of the Reserve Trucking Company, nor of the Great Atlantic and Pacific Tea Company, was, according to his own statement, standing at some point along the right and upper side of the truck, endeavoring to warn vehicles as they descended the hill on the west side of the street. According to other testimony, he or someone taken for him, was seen coming out of a neighboring house and getting into the truck. No one was on guard to warn vehicles coming up the hill on the east side of the street.
Both the Reserve Trucking Company and the Great Atlantic and Pacific Tea Company were made parties defendant to this suit. At the close of the plaintiff's evidence, upon motion to require the plaintiff to elect, he chose to pursue the Reserve Trucking Company, and the Great Atlantic and Pacific Tea Company was dismissed from the case.
The trial resulted in a verdict and judgment for the plaintiff. This judgment was affirmed by the Court of Appeals, one judge dissenting. Pursuant to motion to certify, the cause comes into this court on error.
Messrs. Waters, Andress, Wise, Roetzel & Maxon, for plaintiff in error.
Messrs. Weick, Powers & Mason and Mr. Charles E. Smoyer, for defendant in error.
The plaintiff contended that the defendant was negligent, basing his contention upon the facts pleaded and proved, and upon the violation of an ordinance of the City of Akron which prohibited turning in the street unless the turn could be made without backing. The plaintiff claimed that Sections 6310-26 and 6310-27, General Code, relating to stopping on a highway, were also violated.
The defendant contended that the plaintiff was guilty of contributory negligence. This contention was denied by the plaintiff, who claimed, moreover, that the defense of contributory negligence was not available to the defendant because the conduct of its servant was wilful or wanton in character.
The plaintiff in error urges in this court five assignments of
1. In overruling the defendant's motion for judgment non obstante upon the findings of fact returned by the jury.
2. In overruling the defendant's motion for a directed verdict at the close of the plaintiff's evidence.
3. In admitting in evidence part of an insurance policy covering the truck in question.
4. In charging the jury on the subject of "wilful and, or, wanton negligence", there being, as it claims, no evidence in the record to support such a charge.
5. In failing correctly to state the law as to wilful and wanton misconduct.
1. We shall notice the first assignment only to say that it presents no sufficient ground for reversal. The interrogatories refused were too indefinte [sic] in character for proper submission to the jury. The answers to those submitted do not, in our judgment, establish contributory negligence so clearly as to override the verdict of the jury to the contrary.
2. Neither do we think the trial court erred in overruling the defendant's motion for a directed verdict at the conclusion of the plaintiff's evidence. The plaintiff testified that he "might have" been going thirty miles an hour before he "got up to where this truck was" and twenty-five miles at the time of the collision lie also testified that he did not know how far ahead his lights would disclose a large object, and did not know whether he could see it farther than ten feet. Section 12603, General Code, makes it "prima facie unlawful" to exceed twenty miles an hour in the closely built-up parts of a city, and makes it unlawful to drive a motor vehicle upon any public road at a "greater speed than will permit him [the driver] to bring it to a stop within the assured clear distance ahead." The extent of the assured clear distance ahead was not definitely fixed in the evidence, nor was it established that the plaintiff could not stop within it. Even if the plaintiff were traveling at thirty miles an hour before he got to the truck it is not clear that such violation of the statute was the proximate cause of the injury. If, as the plaintiff's evidence tended to prove, the unlighted end gate, with which only the car collided, were invisible to the plaintiff as he approached it, a speed of twenty miles per hour might well have resulted in consequences almost equally serious. The jury, answering an interrogatory, found that the plaintiff was traveling at a rate of twenty-five miles per hour "as it [he] approached and at the time it [he] struck the...
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