Roszman v. Sammett

• Citation: 269 N.E.2d 420,55 O.O.2d 165,26 Ohio St.2d 94
• Decision Date: 28 April 1971
• Docket Number: No. 70-161,70-161
• Parties: , 55 O.O.2d 165 ROSZMAN, Admx., Appellee, v. SAMMETT, d. b. a. Homer F. Sammett Trucking Co., Appellant.
• Court: United States State Supreme Court of Ohio

Page 94

26 Ohio St.2d 94

269 N.E.2d 420, 55 O.O.2d 165

ROSZMAN, Admx., Appellee, v. SAMMETT, d. b. a. Homer F. Sammett Trucking Co., Appellant.

No. 70-161.

Supreme Court of Ohio.

April 28, 1971.

Syllabus by the Court

1. The violation of a statute passed for the protection of the public is negligence per se. (Paragraph three of the syllabus of Chesrown v. Bevier, 101 Ohio St. 282, 128 N.E. 94, approved and followed.)

2. To constitute wanton misconduct justifying recovery, the conduct of the tort-feasor must be more than negligent: it must be such conduct with knowledge of a dangerous situation liable to cause injury to others, as manifests a heedless disregard for or indifference to the rights of others or for the consequences, i. e., such conduct as manifests a disposition to perversity. (Paragraph two of the syllabus of Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, approved and followed; Kellerman v. J. S. Durig Co., 176 Ohio St. 320, 199 N.E.2d 562, distinguished.)

This cause arises from a collision between an automobile operated by plaintiff's decedent and a stopped tractor-trailer in the same lane of travel at 7:10 a. m. on January 19, 1967, on state route No. 67 slightly south of Upper Sandusky, Ohio. Defendant's employees, with the aid of a dump truck, towed a stalled tractor-trailer from defendant's place of business on to the public highway in order to get it started. The area of defendant's place of business close to the road was lighted by four mercury type pole lights; and the accident occurred just outside the area convered by such lights. The fully lighted dump truck towed the unlighted tractor-trailer southbound on the highway for about 175 to 200 feet, where the tractor-trailer engine started. Both towing and towed vehicles then stopped, and the tow chain was disengaged. No lights on the towed vehicle were burning until the engine started, at which time the left turn signal was activated. At that time, the operator of the towed vehicle saw plaintiff's decedent approaching from the north, with only his parking lights burning. At the time of the collision, the towed vehicle's left-turn signal was flashing and all lights on the towing vehicle were burning. The evidence indicates that there was some vapor or exhaust smoke surrounding the vehicles. There was no evidence to show that decedent had made any attempt to stop his car, and there were no skid marks on the roadway.

At the conclusion of plaintiff's case, the trial court sustained defendant's motion to direct the jury to return a verdict for the defendant; judgment was entered on such verdict. The Court of Appeals, by a majority vote, found that the evidence constituted wanton misconduct, reversed the judgment of the trial court and ordered a new trial. (20 Ohio App.2d 255, 254 N.E.2d 51.)

A motion to certify the record was allowed by this court, which brings the cause here for review.

Stansberry & Schoenberger, and Loren C. Schoenberger, Upper Sandusky, for appellee.

Myers, Spurlock & Sears, Robert B. Spurlock, Bucyrus, and Roth & Bacon, Upper Sandusky, for appellant.

STERN, Justice.

The record presents this question for determination:

Do the facts and circumstances as disclosed by the record show a wanton act on the part of the defendant which precludes the defendant from urging the negligence of plaintiff's decedent as a defense to this action?

The basis for plaintiff's claim, as set forth in her petition and evidence adduced in her behalf, is that the proximate cause of her decedent's death is the wanton misconduct of the defendant. If the evidence supports plaintiff's position, then the defendant's assertion that the decedent was contributorily negligent as a matter of law by virtue of R.C. § 4511.21 (assured-clear-distance-ahead statute) is not tenable.

R.C. § 4513.03 is a mandatory requirement that every vehicle upon a street or highway during the time from one-half hour after sunset to one-half hour before sunrise shall display lighted lights. This statute was passed for the protection of the public. A violation of this enactment is negligence per se. Schell v. DuBois (1916), 94 Ohio St. 93, 113 N.E. 664; Chesrown v. Bevier (1920), 101 Ohio St. 282, 128 N.E. 94; and Claypool v. Mohawk Motor (1951), 155 Ohio St. 8, 97 N.E.2d 32. The basis of the claims in Chesrown and Claypool was the failure of the defendant in each case to display proper lights.

In view of the basis upon which plaintiff bases her claim, we can only consider whether the evidence established by plaintiff supports the claim the defendant's acts could be considered wanton misconduct as a jury issue.

In the instant case, the record does not disclose that defendant's operator of the tractor-trailer committed a wilful tort, even though he was negligent in not having his tail lights lit when he entered the highway.

'The difference between negligence and willfulness is a difference in kind and not merely a difference in degree, and, accordingly, negligence cannot be of such degree as to become willfulness. Generally a willful act involves no negligence, but it has been also held that a willful act may in fact include the element of negligence.' 65 C.J.S. Negligence § 9(1), p. 546.

In Universal Concrete Pipe Co. v. Bassett (1936), 130 Ohio St. 567, 200 N.E.2d 843, this court held that mere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to...