Rogers v. Anchor Motor Freight, Inc.

• Decision Date: 02 March 1953
• Citation: 95 Ohio App. 62,117 N.E.2d 451
• Parties: , 52 O.O. 412 ROGERS v. ANCHOR MOTOR FREIGHT, Inc.
• Court: Ohio Court of Appeals

Page 62

95 Ohio App. 62

117 N.E.2d 451, 52 O.O. 412

ROGERS v. ANCHOR MOTOR FREIGHT, Inc.

Court of Appeals of Ohio, Hamilton County.

March 2, 1953.

Pogue, Helmholz, Culbertson & French, Cincinnati, for appellant.

Robert N. Gorman, Cincinnati, and Robert R. R. Boone, Pineville, Ky., for appellee.

PER CURIAM.

As the plaintiff was the only person present at the instant his automobile collided with the defendant's trailer, the proof of the circumstances of that collision rests entirely on his testimony. Whether an issue of fact was presented also rests upon the same foundation.

The trial court held that an issue of fact determining liability was presented, and submitted the issues to the jury.

The jury resolved the issues in favor of the plaintiff and returned a verdict of $45,000 in his favor, upon which judgment was entered. It is from the judgment that this appeal on question of law is taken.

At various stages of the proceedings in the trial court and in the appropriate ways, the defendant, appellant herein, raised the question of the legal sufficiency of the plaintiff's evidence and all the evidence for submission to the jury and to sustain the verdict and judgment. The trial court overruled all defendant's motions, and the claim that error was committed in so doing is the principal ground urged on this appeal for the reversal of the judgment. However, two specific alleged errors are pointed out, which, it is claimed, necessitate a reversal of the judgment and a remand for a new trial, even assuming that it should be determined that the evidence is sufficient to carry the case to the jury. We shall consider these claims of error before passing to a consideration of the assertion that the evidence shows as a matter of law that no liability exists.

1. On cross-examination of the plaintiff, he was asked this question:

'So when you say that the equipment of the defendant was 65 or 75 feet in front of you when the other car left your lane of traffic you didn't have your car under such control that you could stop within the assured clear distance ahead?'

The court sustained an objection to this question.

The distance of 65 to 75 feet was the distance between plaintiff's automobile and defendant's trailer when the third automobile ceased to obstruct the plaintiff's vision so that he was able to see defendant's trailer. The plaintiff's case depended on his ability to avoid the collision after he saw the trailer, and he had testified fully on both direct and cross-examination on that subject. There was no occasion to have recourse to a hypothetical assured clear distance ahead. Without stopping to consider the form of the question and whether it would be competent in other circumstances, we conclude that, in view of the plaintiff's very full testimony directed to the circumstances, as they existed according to his testimony, no possible prejudice could have resulted to the defendant because of this ruling.

2. It is urged that the verdict is excessive.

The plaintiff is a physician and surgeon and was 59 years of age at the time he was injured. He had graduated from medical school in 1920 and had practiced since then in Cincinnati, and, at the time of this occurrence, derived an income in excess of $20,000 annually from his practice. According to the evidence, his injuries had rendered him incapable of pursuing his profession, which incapacity will continue for the remainder of his life, resulting in the entire loss of his income from the pursuit of his profession. There was evidence of other loss in addition to the physical injuries, including pain and suffering.

The judgment is large in amount, but we are unable to say that it is excessive.

3. We come now to the assigned error upon which the defendant places the most emphasis, that is, that the plaintiff's own testimony shows that he was operating his automobile at a speed greater than would permit him to stop it within the assured clear distance ahead, in violation of Section 6307-21, General Code, and, that, therefore, plaintiff's testimony shows that he was guilty of contributory negligence as a matter of law.

In order to determine the validity of this claim, it is necessary to consider the plaintiff's testimony.

The plaintiff testified that at about midnight on December 3, 1950, he left his country home near New Richmond in his automobile, destined for his home in Cincinnati. He was unaccompanied. He was proceeding westwardly on the north side of U. S. route 52, which at the point of this collision is 22 feet wide. He had proceeded less than two miles and there was apparently no traffic to the west of him as he approached a point in route 52 where its south edge is intersected by Palestine road and the north edge by Iglauer's drive, when suddenly the lights of an automobile appeared 250 to 300 feet westwardly and diagonally across his lane of travel. Whether any part of this automobile was in plaintiff's lane of travel when he first became aware of its proximity, or whether only the beam from its lights was in such lane of travel is not clear. At any rate, the automobile was in his lane of travel almost at once. At that time the plaintiff was traveling 45 miles per hour, but when he saw the automobile lights diagonally across his path, he pressed on the brake and slowed down to 35 miles per hour or less. The automobile lights changed from a diagonal position to a position straight down the plaintiff's path headed directly toward him. The plaintiff testified that he could have stopped his automobile going at 35 or 45 miles per hour before it would have reached the location of this third automobile, but that if the third automobile continued toward him down his path, there would have been a head-on collision notwithstanding; so instead of stopping or slowing down, he swerved his automobile about five feet to his right, hoping thereby to avoid the collision at the risk of being obliged to steer his automobile onto the berm and possibly into the ditch on his right side of the road. In so doing he kept his gaze upon the edge of the road and thereby avoided being blinded by the lights of the oncoming automobile. It so happened that the operator of the third automobile, just before reaching the plaintiff's automobile, suddenly veered to his right, and the two automobiles passed each other without contact. The third automobile continued down the highway, and the identity of the operator has not been discovered.

It is manifest that this untoward incident created an emergency containing elements of imminent peril, and that while it continued the plaintiff was completely preoccupied in attempting to avoid the peril.

As soon as the plaintiff passed this automobile which he had barely avoided, and which had obstructed his forward view, he was immediately confronted with the defendant's unlighted trailer-truck, 65 to 75 feet ahead of him, parked on the north edge of the highway and extending about five feet into his lane of travel, which truck he then saw for the first time. He had his foot on the brake and turned as far as he could to the left in an effort to avoid colliding with the truck, but was unable to do so.

We believe the foregoing is a fair summary of the essential facts to which the plaintiff testified. His credibility rested with the jury. It saw fit to believe him, and there is nothing in the record that would justify this court in disturbing the jury's conclusion.

That the defendant was negligent is not seriously disputed. The were no lights of any sort upon its truck at the time. There were no flares or fusees in the highway. The truck was unattended. The gasoline had been exhausted, and the operator had gone back to New Richmond to replenish it.

The defendant's contention is that the plaintiff violated Section 6307-21, General Code, in that he operated his automobile at a speed greater than would permit him to stop it within the assured clear distance ahead.

On the other hand, the plaintiff contends that, at the inception of this incident, he could have stopped his automobile within the assured clear distance ahead; that the sudden and unexpected entry of the autobile going in the opposite direction into the assured clear distance, the emergency which it created, and his preoccupation in avoiding colliding with it made it impossible for him to see the defendant's truck until the intervening automobile passed; and that then he was so close to the truck that it was impossible to avoid colliding with it.

We have examined the cases in which Section 6307-21, General Code, has been construed and applied. All of them recognize that a sudden and unexpected intervention of a new agency within the assured clear distance ahead affects the application of the statute and may relieve the plaintiff from the charge of negligence per se in colliding with another object in the highway.

In the procession of cases in which the statute has been construed, the rule has been stated, restated and refined as varying circumstances have pointed out the desirability of a more comprehensive definition. Perhaps the latest definition is found stated in negative form in the syllabus of the case of McFadden, Adm'x, v. Elmer C. Breuer Transp. Co., 156 Ohio St. 430, 103 N.E.2d 385, 386, as follows:

'The question of whether the operator of a motor vehicle was negligent in failing to comply with the 'assured-clear-distance-ahead' rule contained in Section 6307-21, General Code, is not presented to the trier of the facts where there is no substantial evidence (1) that the object with which such operator collided was located ahead of him in his lane of travel, and (2) that such object was reasonable discernible, and (3) that the object was (a) static or stationary, or (b) moving ahead of him in the same direction as such operator, or (c) came into his lane of travel within the assured clear distance ahead at a point sufficiently distant ahead of him to have made...