Roberts v. Bohn

• Decision Date: 06 April 1971
• Citation: 269 N.E.2d 53,26 Ohio App.2d 50
• Parties: , 55 O.O.2d 78 ROBERTS, Appellant, v. BOHN, Appellee.
• Court: Ohio Court of Appeals

Page 50

26 Ohio App.2d 50

269 N.E.2d 53, 55 O.O.2d 78

ROBERTS, Appellant, v. BOHN, Appellee.

Court of Appeals of Ohio, Seventh District, Mahoning County.

April 6, 1971.

Syllabus by the Court

1. The admission into evidence, over the objection of counsel, of the continuance of payment of wages to an injured plaintiff during her disability caused by a motor vehicle accident and comment on such fact by defendant's counsel during argument constitutes error.

2. The mere skidding of a motor vehicle is not in itself conclusive evidence of negligence. However, skidding may be considered by the jury along with other circumstances, including the length of the skid marks, in determining the question of the speed of the motor vehicle.

3. The determination as to whether an occupant of an automobile should or should not be required to wear a seat belt should be left to the Legislature.

4. In the absence of a statute to the contrary, there is no duty on an occupant of an automobile to wear a seat belt in ordinary vehicular travel, and the failure to use an available seat belt is not contributory negligence as a matter of law.

5. Evidence of the failure of an occupant of an automobile to use an available seat belt is generally not admissible in an action for personal injuries arising out of an automobile accident.

6. An automobile is not an inherently dangerous instrumentality. It only becomes dangerous because of its negligent operation or because it is allowed to be out of repair.

7. In the absence of any statute to the contrary, there is no duty on the part of an occupant of an automobile to anticipate another's negligence and to protect his own safety by such precautions as wearing available seat belts.

8. It is a general rule that self-serving declarations, that is, statements favorable to the interest of the declarant, when not made in the presence of the adverse party, or his agent, are not admissible in evidence.

Pfau, Comstock & Springer, Youngstown, for appellant.

Harrington, Huxley & Smith, Youngstown, for appellee.

LYNCH, Judge.

This is an action for personal injuries sustained by a female passenger in a motor vehicle which was involved in an accident with another motor vehicle at the intersection of Belmont Avenue and Gypsy Lane in which the jury rendered a unanimous verdict for the defendant. Plaintiff is appealing on several questions of law.

Plaintiff's first assignment of error concerns the questioning of plaintiff by defendant's attorney on cross-examination as to whether her employer, Mahoning Valley Agency, continued to pay her during the time she was off work because of her injuries sustained in the accident. The objection of plaintiff's counsel to this question was overruled by the trial court, and plaintiff admitted that her employer continued to pay her salary while she was off work. Defendant's counsel pointed out in his closing argument that there was no economic loss to the plaintiff in the matter of wages because her employer continued to pay her while she was off work. This was clearly error. Pryor v. Webber, 23 Ohio St.2d 104, 263 N.E.2d 235. The trial judge did not correct this error in his charge to the jury, and probably aggravated it by giving the following special charge requested by defendant.

'The Court charges you that should you award damages to the plaintiff, she is not entitled to be enriched thereby and that such damages, if awarded, shall be only those which will fairly compensate her and put her in the same position in which she would have been had the accident not occurred.'

Defendant contends that the instant case can be distinguished from the Pryor case, because in the Pryor case the trial court instructed the jury that the defendant was negligent as a matter of law and the issues submitted to the jury were the questions whether the collision was the proximate cause of plaintiff's injuries and what was the nature and extent of plaintiff's injuries, whereas in the instant case, all of the issues, including defendant's negligence, were submitted to the jury and there was a general verdict for the defendant. Defendant contends that the two issue rule is applicable to this case because the issue of defendant's negligence was presented to the jury free of this error, inasmuch as defendant did not see how the accident occurred and, therefore, did not testify as to anything that would be pertinent to defendant's negligence. Centrello v. Basky, 164 Ohio St. 41, 128 N.E.2d 80. Defendant cites the following from Sherer v. Smith, 155 Ohio St. 567, at page 571, 99 N.E.2d 763 at page 766:

'The rule is well established that where it is plainly evident from the verdict of a jury that it found no negligence or no cause of action, any error in admitting or rejecting evidence respecting the subject of damages is harmless unless it palpably prejudiced the jury on the main issue.'

We feel that plaintiff's credibility was attacked as to the amount of damages to which she would be entitled by her admission under cross-examination of receiving wages during her disability caused by the accident; however, defendant's contention, in effect, is that this attack on plaintiff's credibility would not affect the credibility of the testimony on the issue of defendant's negligence. Plaintiff argues that this tactic of defense counsel attacked the credibility of plaintiff's entire claim.

Defendant presented testimony that would support a jury's conclusion that the accident was proximately caused as a result of the sole negligence of plaintiff's driver rather than any negligence on the part of defendant. In the Pryor case, the Ohio Supreme Court held that the tactic of defense counsel at issue in the assignment of error constituted prejudicial error that could only be corrected by the granting of a new trial. The court, in its opinion, cited Annot., 77 A.L.R.2d 1156, with respect to disclosure of workmen's compensation benefits. It reads as follows:

'Generally, it has been held to constitute error, requiring a reversal or new trial, to bring to the jury's attention the fact that the plaintiff in a personal injury or death action is entitled to workmen's compensation benefits. The courts have reasoned that such information would tend to prejudice the jury and influence their verdict, either as to liability or damages, as such information is ordinarily immaterial and irrelevant.' (Emphasis added.)

We had a similar question raised in this assignment of error before us in the unreported case of Suchy v. Moore, Belmont County Court of Appeals case No. 1087, and we held that Pryor v. Webber, supra, required us to reverse the case and to order a new trial. We have certified the Suchy case to the Ohio Supreme Court as being in conflict with Levy v. Coon, 11 Ohio App.2d 200, 229 N.E.2d 747. Eventually, the Ohio Supreme Court will decide this issue. In the meantime, this court will follow its decision in the Suchy case.

Part of plaintiff's fifth assignment of error concerns the trial court's act of giving the following special charge to the jury at the request of defendant.

'Ladies and gentlemen of the jury, the court charges you that tire skid marks made by a motor vehicle involved in an accident are not probative evidence of the speed of such vehicle, in the absence of expert testimony as to the use of skid marks in determining speed.'

This charge is identical to the language of the first paragraph of the syllabus of Gutter v. Frazer, 120 Ohio App. 305, 201 N.E.2d 903, and the meaning of the third paragraph of the syllabus of Shelly v. Motter, 112 Ohio App. 201, 175 N.E.2d 752. However, these cases are in conflict with Bailey v. Parker, 34 Ohio App. 207, 170 N.E. 607, which held that tire marks of an automobile after application of brakes can be considered by the jury on the question of a driver's negligence in driving at an excessive rate of speed. We prefer the holding in Bailey v. Parker because it conforms with the generally accepted law throughout the United States.

In 8 American Jurisprudence 2d 504-505, Automobiles and Highway Traffic, Section 958, there appears the following.

'The general rule is that testimony as to tire or skid marks on the highway is admissible in civil actions for injury or damage resulting from a motor vehicle accident where a sufficient foundation therefor is laid, as by showing, for example, that the condition of the highway was the same at the time of observation as it was at the time of the accident and that the marks had not been changed by the weather or traffic, and where there is sufficient identification of the marks as having been made by the motor vehicle involved in the accident. Such testimony constitutes pertinent and admissible evidence as bearing on the speed at which the motor vehicle was being operated at the time of the accident * * *.'

See Annot., 23 A.L.R.2d 112 at 116 and s25.

In 61 C.J.S. Motor Vehicles § 518(9), pp. 589-590, there appears the following.

'The mere skidding of a motor vehicle is not in itself conclusive evidence of negligence. However, skidding may be considered with other circumstances in determining the question of negligence, and it may constitute evidence of excessive speed or lack of control.'

We hold that the mere skidding of a motor vehicle is not in itself conclusive evidence of negligence. However, skidding may be considered by the jury along with other circumstances, including the length of the skid marks, in determining the question of the speed of the motor vehicle.

Therefore, we find that the trial court committed error in giving the special charge to the jury at issue in this assignment of error.

Plaintiff's third assignment of error concerns the questioning of plaintiff on cross-examination as to whether she was wearing an available seat belt and her admission that she was not wearing a seat belt. Plaintiff's counsel objected to such testimony as irrelevant, but the trial court ruled that such...