Richlin v. Gooding Amusement Co.

• Decision Date: 01 December 1960
• Citation: 113 Ohio App. 99,170 N.E.2d 505
• Parties: , 85 Ohio Law Abs. 498, 17 O.O.2d 100 Barbara C. RICHLIN, Plaintiff-Appellee, v. GOODING AMUSEMENT COMPANY, Inc., Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 99

113 Ohio App. 99

170 N.E.2d 505, 85 Ohio Law Abs. 498, 17 O.O.2d 100

Barbara C. RICHLIN, Plaintiff-Appellee, v. GOODING AMUSEMENT COMPANY, Inc., Defendant-Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 1, 1960.

A. H. Dudnik, M. I. Nurenberg, Cleveland, John H. Bever, Berea, for plaintiff-appellee.

McNeal & Schick, John R. Kistner, Bernard H. Niehaus, Jr., Cleveland, Clifford E. Rader, Jr., Columbus; Harley J. McNeal, Cleveland, of counsel, for defendant-appellant.

SKEEL, Judge.

This appeal comes to this court on questions of law from a judgment entered for the plaintiff upon a verdict returned by a jury. The plaintiff claims to have suffered severe injury as a proximate result of the negligence of one of defendant's servants while acting in the course of his employment.

About 2:00 A.M. of July 31, 1955, the plaintiff was a passenger in the automobile of her fiancee, William Hayden. They had attended a party at the house of a friend on Electric Drive in the City of Bay Village. They left the party at about the time indicated, driving west on Electric Drive to Bassett Road, then sough on Bassett Road to Detroit Road. They drove east on Detroit Road to the place of the accident which occurred at the intersection of Detroit Road with Wagar Road in the City of Rocky River. The total distance driven was slightly over seven miles. The accident occurred about 2:25 A.M. so that the seven miles was driven in not less than twenty minutes.

The defendant, in the carnival business, had in its employ a 'Ride Helper,' Edgar Kitchen, age twenty-eight, of Elkins, West Virginia. The defendant owned or possessed carnival equipment which on July 30th was on what the witnesses called a 'Fairground' located about three blocks east of Wagar Road on Detroit Road. Kitchen started to work at the carnival on July 30th at about 11:00 A.M. At the close of carnival activities, at about eleven-thirty that night, the carnival equipment was disassembled preparatory to moving at least some part of it to some place in Indiana. Kitchen participated in this work and when the defendant's tractor-trailer was loaded, he became the truck driver. He was not familiar with the route to be taken, and another employee indicated or marked the way to go on a piece of paper. He was told to go three (or four) blocks west on Detroit Road, turn south (left hand turn) on Wagar Road to U. S. Route 20. When he approached Wagar Road, after counting the blocks, he proceeded along and when 100 feet from the intersection of Wagar Road with Detroit Road, he noticed that the traffic light at the intersection of Detroit and Wagar Roads was red. He was then driving twenty miles per hour. He started to slow down and when sixty feet from the intersection, the light changed to green. He proceeded to the cross-walk and when near the traffic light, started to execute a left hand turn to go south on Wagar Road. The manner of making such turn and the point from which the turn was commenced; the distance covered by the tractor-trailer into or toward Wagar Road; the point where the tractor entered or was entering Wagar Road to the south; whether Kitchen saw the automobile in which plaintiff was a passenger some distance to the west, or whether he first observed it as it proceeded in an easterly direction into the intersection and was within twenty feet of the tractor just before the collision, (as appears in the police report); and the speed at which the vehicle in which plaintiff was a passenger approached the intersection and its position on Detroit Road as it proceeded east just before and at the time of the collision are all matters that are in considerable dispute as shown by a careful reading of the bill of exceptions. A collision occurred between the two vehicles and plaintiff was severely injured.

From a judgment entered for the plaintiff, the defendant claims the following errors:

'1. That the court erred in its charge to the jury with respect to Revised Code of Ohio Section 4511.36 (left-hand turn rule).

'2. That there are minor errors in the charge, the cumulative effect of which is sufficient to warrant reversal.

'3. That the court should have granted defendant's motion for a directed verdict.

'4. That the court erred in refusing to submit to the jury the issue of contributory negligence of plaintiff.

'5. That the verdict is contrary to law and against the weight of the evidence.

'6. That the verdict is excessive and was given under the influence of passion and prejudice.

'7. That the ocurt erred in permitting the plaintiff to introduce testimony relative to a lessening of the plaintiff's sense of smell and taste when there were no allegations in the Petition pertaining to such claims; and permitted counsel to argue a 'brain injury' when there was no testimony concerning any so-called 'brain injury.'

'8. That the court erred in refusing to admit in evidence the police report and the statements of Edgar Kitchen and Robert Gehring after issues were raised concerning the facts found by Lt. Nordstrom when he arrived at the scene of the accident.

'9 That the court erred in permitting counsel for the plaintiff to ask hypothetical questions which were not based upon testimony which was in evidence; and permitted counsel for plaintiff to ask questions seeking opinions in answers thereto which were speculative and conjectural in nature.

'10. That the court erred in not granting a new trial on the basis of newly discovered evidence developed by the defendant, which affected the substantial rights of the parties.

'11. That the court erred in emphasizing and repeating verbatim and by reference plaintiff's allegations of negligence against the defendant as set forth in the petition.'

The charge of the court, explaining the provision of Revised Code, § 4511.36 (left-hand turn) appears in several places. Each time the specific requirements of entering the intersection to the right of and next to the centerline of the street upon which the vehicle is traveling when proceeding into the intersection and to proceed to the right of the centerline of the street being entered in making the left-hand turn were carefully explained.

The sentence added by the amendment to this section effective September 11, 1951, which reads: 'Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection * * *' does not change the basic requirements for making a left-hand turn at a street intersection. The amendment of 1951 must have intended to make it perfectly clear that 'cutting the corner' as distinguished from the earlier requirement to go beyond the center of the intersection before turning to the left, was intended. The failure of the court to include the sentence just quoted each time he read Revised Code, § 4511.36 in his charge had no prejudicial effect on the defendant's case. The rule was properly stated by the court in its charge on this question.

The second claim of error is that the cumulative effect of a number of minor errors in the court's general charge to the jury (no one of which is claimed to be of sufficient moment to be prejudicially detrimental to defendant's case) when taken together prejudiced the right of the defendant. We find no substance to this claim. An error committed by the court in its charge to the jury is either prejudicial or it is not. There is no legal way to add up the separate effects of such claims so that taken together, they may be considered as affecting prejudicially the rights of a contending party. Each claim of error must be considered as standing or falling on its own facts unassociated with others on different subjects. This claim of the defendant is overruled.

It is claimed in the defendant's third assignment of error that the court should have granted defendant's motion for a directed verdict. The defendant proceeded to put on its case after its motion for a directed verdict had been overruled. We do not find that the motion was revived at the time both sides rested their respective cases. It requires no citation of authority to show that such claim of error cannot now be considered. But even if the motion had been interposed, this claim of error would have had to be overruled.

The assertion that the defendant's negligence was a proximate cause of injuries suffered by the plaintiff is supported in this record by credible evidence and questions of fact were therefore present for the consideration of the jury. This claim of error is overruled.

The refusal of the court to submit to the jury the issue of contributory negligence on the part of the plaintiff, as presented by defendant in three or four of its written requests for instructions before argument, did not constitute prejudicial error. The plaintiff was a passenger in the automobile which collided with defendant's tractor-trailer while its driver was attempting to make a left turn in front of and across the path of the automobile in which she was riding. The law seems to be will settled that a passenger owes no duty to assist in driving the automobile in which she is riding as a passenger. Only in case of a danger unknown to the driver, which lack of knowledge is known to the passenger who has, in fact, observed such danger and the circumstances are such that a reasonable person would speak out, does the law place a duty on the passenger to point out the danger if time permits. Interfering with or confusing the driver by warnings of observable conditions many times contributes to disaster. In the case of Bush v. Harvey Transfer Co., 146 Ohio St. 657, at page 670, 67 N.E.2d 851, 858 of the opinion, Hart, J. says:

'As a general rule, one who is merely a guest in an automobile may rely to some extent, though not absolutely, upon the driver to exercise reasonable care to avoid danger, and, in the absence of unusual circumstances, a guest is not guilty of...