Schalk v. Spreckelmeier

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: SHANNON; HESS, P. J., and YOUNG
• Citation: 273 N.E.2d 795,56 O.O.2d 389,27 Ohio App.2d 210
• Parties: , 56 O.O.2d 389 SCHALK, Appellee, v. SPRECKELMEIER, Appellant.
• Decision Date: 17 May 1971

Page 210

27 Ohio App.2d 210 273 N.E.2d 795, 56 O.O.2d 389 SCHALK, Appellee,
v.
SPRECKELMEIER, Appellant. Court of Appeals of Ohio, First District, Butler County. May 17, 1971.

Syllabus by the Court

A violation of R.C. 4513.28, which requires the display of warning devices on disabled vehicles, is negligence per se.

Bruewer, Moser & Masana, Hamilton, and Wilke & Goering, Cincinnati, for appellee.

Baden, Jones & Scheper, Hamilton, for appellant.

SHANNON, Judge.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Butler County.

Plaintiff below was operating his pickup truck on a state highway, described as a two lane roadway some eighteen feet in width, shortly after 5 P.M. February 13, 1968. When the motor stalled, plaintiff coasted to a stop with the right wheels resting on the berm. He got out of the truck and walked to the front of it, conversed with a passing driver about sending assistance, waved another motorist on, and opened the hood of his vehicle. A cloud of steam erupted, obscuring his vision to the rear. While peering inside the engine compartment, plaintiff heard the sound of another vehicle approaching and slammed the hood down. The approachnng vehicle was a pickup truck operated by defendant. Defendant had observed the cloud of steam, which he thought was smoke from burning [273 N.E.2d 796] trash, and slowed down as he drove into it. Thereupon, he struck the rear of plaintiff's truck, moving it forward so as to

Page 211

strike plaintiff then standing in the roadway at its front. Plaintiff suffered extensive personal injuries and filed suit to recover damages for such, together with compensation for the damage to his truck. The case was tried before a jury and it is from the judgment rendered upon the verdict for plaintiff that defendant takes this appeal.

The several assignments of error are bottomed upon the assertion that plaintiff was negligent as a matter of law and that reasonable minds could conclude only that such negligence proximately contributed to his injuries.

First, we must inquire into what the duty of plaintiff was when his disabled truck came to a stop on a traveled portion of the highway.

R.C. 4513.28, captioned 'display of warning devices on disabled vehicles,' is applicable and provides, in paragraph (D):

'Whenever any vehicle * * * of a type referred to * * * is disabled upon the traveled portion of a highway or the shoulder thereof, outside of any municipality * * * at any time * * * when the display of fusees, flares, red reflectors, or electric lanterns is not required, the operator of such vehicle * * * shall display two red flags upon the roadway in the lane of traffic occupied by the disabled vehicle * * * one at a distance of forty paces or approximately one...