Rigney v. Cincinnati St. Ry. Co.

• Decision Date: 20 December 1954
• Citation: 99 Ohio App. 105,131 N.E.2d 413
• Parties: , 52 A.L.R.2d 1443, 58 O.O. 202 RIGNEY, Appellant, v. The CINCINNATI STREET RAILWAY CO., Appellee.
• Court: Ohio Court of Appeals

Page 105

99 Ohio App. 105

131 N.E.2d 413, 52 A.L.R.2d 1443, 58 O.O. 202

RIGNEY, Appellant, v. The CINCINNATI STREET RAILWAY CO., Appellee.

Court of Appeals of Ohio, Hamilton County.

Dec. 20, 1954.

Syllabus by the Court.

1. Where, in an appeal on questions of law, it appears that the entire record is before the reviewing court, including the ruling by the trial court on motions for judgment on the pleadings, and where the appellee seeks final judgment in his favor on the uncontroverted facts, such appellee need not file a cross-petition on appeal in order to secure final judgment.

2. Where, in an action to recover damages for personal injuries received when a bus in which plaintiff was a passenger collided with a tree, such plaintiff alleges that the bus was in 'a mechanically defective condition which rendered it unfit and dangerous,' but does not allege the specific act of negligence in that regard, such allegation does not preclude reliance by the plaintiff on the doctroline of res ipsa loquitur.

3. A third party wrongdoer is not entitled to have the damage resulting from his wrong diminished by payments made by an employer to an employee injured by such wrongdoer and charged against the accumulated sick and annual leave credits of the employee, resulting in extinguishment of such credit.

Ginocchio & Ginocchio, Cincinnati, for appellant.

C. R. Beirne, Cincinnati, for appellee.

MATTHEWS, Presiding Judge.

The plaintiff, appellant herein, obtained a judgment on a verdict for $10,000. Her appeal raises the sole question of the validity of the ruling of the trial court in holding that under the circumstances of this case there could be no recovery of anything for loss of compensation caused by her inability to discharge the duties of her position as a civil employee of the United States government in the Treasury Department, which she occupied at the time of the incident resulting in her injuries. The defendant, appellee herein, while challenging the correctness of the plaintiff's ground for reversal, asserts that the judgment should be reversed and final judgment rendered for it on the whole record which is before the court. A separate cross-appeal was filed, but has been dismissed, the defendant preferring to rely on the jurisdiction of this court to render that judgment which the law and facts require. For authority for this position the case of Hrovat v. Cleveland Ry. Co., 125 Ohio St. 67, 180 N.E. 549, 84 A.L.R. 215, is relied upon, which held, as stated in the second paragraph of the syllabus:

'In an error proceeding, where it appears that the entire record is before the reviewing court, including the ruling by the trial court on motions for a directed verdict, and in the reviewing court an unsuccessful litigant seeks final judgment in his favor upon the uncontroverted facts, such litigant, if he be a defendant in error, need not file a cross-petition in error is order to secure final judgment.'

Notwithstanding the change in the law of appellate procedure since the foregoing opinion, we are of the opinion that its applicability has not been affected and that it still expresses the law of Ohio.

It is the contention of the defendant that the plaintiff having alleged specific acts of negligence in her petition and having failed to prove any single allegation, while, on the contrary, the evidence shows that defendant was not negligent in any respect, it was the duty of the trial court to have entered final judgment for the defendant, and, therefore, it is the duty of this court on this appeal to correct the error by entering the judgment in its favor which the trial court should have entered. Defendant's conclusion is predicated upon three assumptions. The first is that the law precludes recourse to the doctrine of res ipsa loquitur in all actions in which specific acts of negligence are pleaded, as in this case. The second assumption is that there is no evidence tending to prove any of the specifically pleaded acts of negligence. The third assumption is that the allegation that the bus was in a mechanically defective condition rendering it unfit and dangerous for the carrying of passengers upon the public highway, and that, therefore, it was negligent to use it, did not enlarge the issue or furnish the basis for the application of the doctrine of res ipsa loquitur, because the bus--the instrumentality--was not in the exclusive control of the defendant.

(1) Is it the law of Ohio that the allegation of specific acts of negligence excludes the application of res ipsa loquitur?

It is true that in a case in which the pleadings and proof relate to specifically alleged acts of negligence there is no basis upon which to predicate an inference of negligence other than the evidence relating to the specifically alleged acts. The Supreme Court of Ohio so construed the record as to bring Winslow v. Ohio Bus Line Co., 148 Ohio St. 101, 73 N.E.2d 504, 505, within this category. In answer to the argument that the case called for the application of the rule of res ipsa loquitur, the court held, as stated in the first paragraph of the syllabus:

'The doctrine of res ipsa loquitur is not applicable in a case where the petition and proof disclose that plaintiff had knowledge of the facts and circumstances showing the claimed negligence of defendant.'

The court in the Winslow case analyzed the evidence and found that 'no reasonable inference can be drawn but that appellee's servant was negligent.' That the court had no intention of overruling or qualifying any of its prior decisions on the subject is made manifest by the fact that it cited most of them with approval. The court cited with approval the case of Fink v. New York Central R. Co., 144 Ohio St. 1, 56 N.E.2d 456, in which the petition and proof did not present specific acts of negligence, but where, nevertheless, the court in the Fink case, 144 Ohio St. at page 7, 56 N.E.2d at page 459, took occasion to say: 'This state has adopted the rule, which is supported by the great weight of authority, that if the allegations of the petition and the proof in support thereof call for the application of the rule it should be applied irrespective of whether the petition contains allegations of specific acts of negligence.'

The court in the Winslow case also approved without qualification the case of Scovanner v. Toelke, 119 Ohio St. 256, 163 N.E. 493, in which the petition contained allegations of specific acts of negligence very similar to those in the petition in this case, and, if defendant's analysis of the evidence is accepted, also similar, in that there would be no evidence to support the specific allegations of negligence. Notwithstanding the absence of evidence of the specific acts of negligence, the court affirmed the judgment for the plaintiff by recourse to the doctrine of res ipsa loquitur.

See, also, Manker v. Shaffer, 96 Ohio App. 350, 121 N.E.2d 908, in which the doctrine of res ipsa loquitur was applied notwithstanding the fact that specific acts of negligence were alleged.

So we conclude that in this case there is nothing in the pleadings and proof to preclude the application of the doctrine of res ipsa loquitur if the evidence otherwise justifies it.

(2) and (3) Let us look now at the allegations in the petition and the evidence in this case. We find that the plaintiff alleges that the bus in which she was riding as a passenger was in a 'mechanically defective condition which rendered it unfit and dangerous to be operated on the highways for the purpose of carrying passengers for hire,' and that due to its mechanically defective condition, the wheels locked in their then set direction. At the same time the operator of said bus, noting the locking of said wheels, 'carelessly and negligently failed to straighten said bus in its course on the highway, and carelessly and negligently failed to stop said bus,' and as a result the bus left the highway and collided with a tree to the south of the highway.

The plaintiff testified that 'as the bus made this turn it sounded like some of the mechanism fell out of the bus.' We take that to indicate that there was an actual defect in the mechanism of the bus. The operator of defendant's bus seemed to confirm that. He testified that the bus was carrying an unusual load of passengers, and that as he was going around a curve the steering wheel locked and he was unable to control the bus. This testimony seems to us to corroborate the plaintiff's testimony that something happened to the mechanism of the bus, indicating that the bus was defective, and tending to prove the plaintiff's allegation that the bus was in 'a mechanically defective condition which rendered it unfit and dangerous * * * for the purpose of carrying passengers for hire.'

This presents an entirely different situation than that presented in the Winslow case and, also, that cases in which sole reliance was placed upon the rule of res ipsa loquitur. In the Winslow case there was no evidence of any defective mechanism, and, as the evidence was construed by the Supreme Court, there was no evidence that the operator lost control of the bus at any time. In fact it would seem that the Supreme Court regarded the collision as resulting from the deliberate action of the operator.

As already noted, there is evidence of a mechanical defect which relieves the plaintiff from the necessity of relying on res ipsa loquitur. The fact that the bus left the highway and collided with a tree would be sufficient to require explanation by defendant. The case of Glaze v. City of...