Roszman v. Sammet

• Decision Date: 26 November 1969
• Citation: 254 N.E.2d 51,20 Ohio App.2d 255
• Parties: , 49 O.O.2d 336 ROSZMAN, Admx., Appellant, v. SAMMET, d. b. a. Homer F. Sammet Trucking Co., Appellee.
• Court: Ohio Court of Appeals

Page 255

20 Ohio App.2d 255

254 N.E.2d 51, 49 O.O.2d 336

ROSZMAN, Admx., Appellant, v. SAMMET, d. b. a. Homer F. Sammet Trucking Co., Appellee.

Court of Appeals of Ohio, Third District, Wyandot County.

Nov. 26, 1969.

Syllabus by the Court

1. The existence of a cloud of vapor emitted by trucks in cold weather, or the existence of shadows cast by a bright yard light adjacent to a road, do not serve to eliminate the requirement that a driver drive at such speed that he can stop within the assured distance ahead.

2. The existence of such conditions simply serves to reduce the distance ahead which is clearly assured and so effect the variable permissible speed.

3. A sudden emergency can cut down or lessen the assured clear distance ahead, but only if the obstruction is placed in the lane of travel so shortly prior to the moment of collision as to give no interval reasonably sufficient to adapt speed to the new situation.

4. Where a plaintiff's evidence most favorably construed would indicate that defendant's employee, to start the motor of a truck, in early morning darkness, intentionally towed it onto a public highway, with no lights on the vehicle being towed, and then stopped, and the vehicle was struck from the rear by plaintiff driving in that lane of travel, the question of whether the defendant, through its employee was guilty of wanton misconduct is for the trier of fact.

5. Contributory negligence of a plaintiff is a defense to an action for negligence; it is not a defense to an action for wanton misconduct.

Stansbery & Shoenberger, Upper Sandusky, for appellant.

Roth & Bacon, Upper Sandusky, and Robert B. Spurlock, Bucyrus, for appellee.

COLE, Presiding Judge.

This case is before this court on appeal from a judgment for the defendant in the trial court predicated upon the granting of a motion for a directed verdict at the close of plaintiff's evidence. Essentially, the case involves the possible exceptions to a violation of the 'assured clear distance statute,' constituting contributory negligence.

On January 19, 1967, the plaintiff's decedent was driving to work about 7:10 a. m. in a southerly direction along State Highway No. 67 slightly south of Upper Sandusky. The light was essentially a morning twilight 'leaning more toward darkness.' He drove directly into a tractor trailer, which was stopped in the southbound lane, and was killed instantly. The evidence as to the state of darkness and as to the lights on the tractor trailer is conflicting. Interpreting the evidence most favorably to plaintiff, a state of near darkness existed and there were no lights on the tractor trailer. The evidence indicated that the decedent had made no attempt to stop his car; there were no skid marks.

In Smiley v. Arrow Spring Bed Co., 138 Ohio St. 81, 33 N.E.2d 3, 133 A.L.R. 960, it was held, in the second paragraph of the syllabus:

'To comply with the assured clear distance ahead provision of Section 12603, General Code, the driver of a motor vehicle must not operate it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a discernible object obstructing his path or line of travel, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance, within such assured clear distance ahead and into his path or line of travel, of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.'

See, also, Pallini v. Dankowski, 17 Ohio St.2d 51, 245 N.E.2d 353.

Since the defendant's truck was directly in the line of travel, and since it was of such size as to be normally considered a discernible object irrespective of whether it had lights on the rear (See Kormos v. Cleveland Retail Credit Men's Co., 131 Ohio St. 471, 3 N.E.2d 427), the plaintiff's decedent was, unless he came within some exception, guilty of violating the assured-clear-distance provision (Section 4511.21, Revised Code) and was guilty of contributory negligence prohibiting recovery irrespective of negligence of the defendant.

The case then turns on the possible exceptions which might nullify this line of reasoning:

1. Some argument was made that there was in fact no discernible object in that the evidence might indicate a cloud of vapor surrounded the truck trailer concealing it from view. We do not believe this evidence would be of assistance to the plaintiff. If a patch of vapor existed impairing the view, then it only served to cut down the distance that was assured to be clear and would not change the duty upon the plaintiff's decedent or the clear conclusion from the fact of the collision that he violated that duty. There is also some argument that a yard light created shadows obscuring the truck by virtue of the intensified shadow area or the dazzling character of the light. Again, however, such a condition would not change the application of the statute, as the variation of illumination would directly affect the variable permissible speed.

'Neither bends nor twists in the highway, crests in the road, dim lights, fog, sleet, rain, or blinding lights of approaching motor vehicles will excuse him from the duty to drive so that he can stop his vehicle within that assured clear distance ahead.' 6A Ohio Jurisprudence 2d 377, Section 355; Gordon v. Columbus & Southern Ohio Electric Co., 112 Ohio App. 218, 173 N.E.2d 720; Snouffer v. Potter Lumber & Supply Co., 77 Ohio App. 546, 64 N.E.2d 77; Schroff v. Foley Construction Co., 87 Ohio App. 277, 94 N.E.2d 641.

2. It is further argued that the 'sudden emergency' exception which is mentioned in the Smiley case (138 Ohio St. 81, 33 N.E.2d 3) applies. However, interpreting the evidence in its most favorable light for the plaintiff, we still find the factual situation could not justify such a conclusion.

The evidence indicates that defendant operated a road contracting business on premises adjacent to the highway at about the place the accident occurred. On the morning involved, shortly prior to the moment of collision, it had been discovered that one of his trucks would not start. At that time it was in his driveway off the highway. To start it, a second truck was hitched to it, pulled it into the highway and traveled about 200 feet; the engine started, and the driver of the first truck got out to unhitch the vehicles. At this approximate moment the collision occurred.

The uncontradicted testimony is that the maximum speed of the tandem operation was 2 miles per hour. At this rate the trucks would have been on the road at least a minute and a half to two minutes, allowing time for the turning operation. Even assuming that the decedent's car was traveling at twenty miles per hour (far less than the obvious speed required to produce the damages), the decedent would have traveled between 1,700 and 2,500 feet. A sudden emergency cannot be predicated upon such figures. The trucks were on the highway a sufficiently long time to give the decedent ample warning of their presence.

3. These two exceptions not being applicable, we come to plaintiff's major contention. Contributory negligence of a plaintiff is a defense to negligence of a defendant; it is not a defense to wanton misconduct.

'A party charged with wanton misconduct is deprived of his plea of contributory negligence.' Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, 119 A.L.R. 646, the fourth paragraph of the syllabus.

'Where wanton misconduct on the part of a defendant existed, negligence on the part of the plaintiff is not available as a defense.' Kellerman, Admx. v. J. S. Durig Co., 176 Ohio St. 320, 199 N.E.2d 562, paragraph three of the syllabus.

Predicated upon this concept, it is plaintiff's contention that the defendant was guilty not of simple negligence but of wanton misconduct and the violation by her decedent of the assured-clear-distance statute is unavailable as a defense.

Wanton misconduct was last defined by the Supreme Court in the Kellerman case (176 Ohio St. 320, 199 N.E.2d 562), in the second paragraph of the syllabus:

'Wanton misconduct charged against a defendant implies a disposition to perversity and a failure to exercise any care toward those to whom a duty of care was owing when the probability that harm would result from such failure was...