Schroff v. Foley Const. Co.

• Decision Date: 15 May 1950
• Citation: 94 N.E.2d 641,87 Ohio App. 277
• Parties: , 43 O.O. 5 SCHROFF v. FOLEY CONST. CO.
• Court: Ohio Court of Appeals

Page 277

87 Ohio App. 277

94 N.E.2d 641, 43 O.O. 5

SCHROFF v. FOLEY CONST. CO.

Court of Appeals of Ohio, Hamilton County.

May 15, 1950.

Syllabus by the Court.

1. Section 6307-21, General Code, is a safety measure which, to accomplish its purpose, must be applied according to its clear and unambiguous language.

2. Under the ordinary rules of negligence, the driver of an automobile has a right to assume that others using the highway will obey the law, but in the light of the requirements of Section 6307-21, General Code, this rule has little, if any, application.

3. One who drives an automobile into a visible static object upon the highway is guilty of negligence per se and if such negligence is the proximate cause of personal injuries or damage to his automobile, cannot recover therefor.

4. Neither darkness nor fog may be advanced as an excuse or reason for not applying such rule of law in an action in which such driver alleges and testifies to a collision with such static visible object.

5. Where a driver of an automobile upon a dark and foggy night is made aware of an excavation in the center of the highway and the presence of machinery used in connection therewith and finds the right half of such highway blocked off and impassable and then proceeds to drive his automobile onto the left portion of such highway, thus proceeding in the opposite direction of normal traffic, and collides with the front portion of a boom forty-five feet long, extending backward to a cab in the direction in which such driver is proceeding, such boom extending approximately along the center line of the highway, and such collision is the proximate cause of the injuries to the automobile and the driver, he cannot recover against a contractor, responsible for the location of such boom and cab, and who is engaged in such excavation under a contract with the county.

Gordon Rich and Bates, Skirvin & Varnau, all of Cincinnati, for appellee.

Robert G. McIntosh, Cincinnati, for appellant.

ROSS, Presiding Judge.

In this appeal on question of law from the Court of Common Pleas of Hamilton County, the defendant seeks to set aside a judgment in favor of the plaintiff rendered on the verdict of a jury in an action in which the plaintiff seeks to recover compensation for personal injuries and damages to his automobile caused by a collision with the 'boom' of a machine used in the excavation of a public highway.

The charges contained in the second amended petition are: That the defendant, on the 7th of April, 1948, was engaged in putting a sewer in Losantiville road in Hamilton county, Ohio; that defendant knew such road was being used for public travel during such installation; that defendant had not blocked the entrances to such road; that defendant blocked the south half of such road with a 'power crane' at a point east of the overhead crossing of the Pennsylvania railroad; that a 'boom' extended from the cab of such crane across the north half of the highway and was about five feet above the ground; and 'that it was dark and there was a heavy fog, so that the lights of the automobile of the plaintiff would fail to disclose this projection onto the highway located up above the range of the headlights.' It is alleged further the defendant neglected to have watchmen, maintain a suitable barricade, danger signs, and red lights warning plaintiff of such obstruction of the highway by such boom.

It is stated further by plaintiff in his second amended petition that: 'At or about 2:45 a. m. on the 7th day of April, 1948, with conditions existing as previously set forth herein, he was driving his 1940 Ford sedan in an easterly direction along said Losantiville road; that as he approached the Pennsylvania railroad underpass he descended the grade approaching thereto, passed under said underpass and started up the grade on the east side of said overpass and saw the cab of this large crane and turned his car to the left onto the northerly half of the road or what would be known as the left hand side of the road to avoid a collision with said cab and bucket of said power crane and that as he was passing said power crane the boom heretofore described placed above the road and out of the range of his headlights struck the top and right side of this plaintiff's Ford automobile with such force as to totally demolish the same and injure this plaintiff as herein set forth.'

In a third cause of action plaintiff alleges the existence of a contract between the defendant and the county of Hamilton, whereby defendant was required to maintain suitable barricades, lights and a watchman for the protection of the public during and in connection with such installation of such sewer and that 'said defendant failed to provide, erect and maintain suitable barricades, danger signs and red lights and failed to provide adequate protection to insure the safety to the public at all times but on the contrary in violation of this duty imposed by contract for the benefit of this plaintiff and others using the highways, intentionally obstructed the highway with the boom hereinbefore described, causing the injury to the plaintiff set forth in the first cause of action and the damage to his automobile set forth in the second cause of action.'

The answer of the defendant is in effect a general denial.

Motions for an instructed verdict and for judgment non obstante veredicto and for a new trial were filed by defendant and overruled.

From the evidence introduced by plaintiff, it appears that defendant was, on April 7, 1948, engaged in the installation of a sewer just south of the center line of Losantiville road in the county of Hamilton. In connection with such work, a crane having a 45-foot boom extending from the cab of the crane was employed in the work. On the night in question, the cab was located just south of the center line of the road and the boom extended west from the cab. The western extremity of the boom extended some two or three feet across the center line into the north half of the highway, and such western end of the boom was about four or five feet above the level of the highway. The ditch in which the sewer was installed had been filled in for some considerable distance to the west of a point where plaintiff entered Losantiville road from the north out of Brook Crest avenue, at about 2:00 a. m., on the night of April 7, 1948. At the point where the cab and boom were located the ditch was still open.

The president of defendant company, being called as on cross-examination, stated that the boom was so located as a barricade against possible entrance into the ditch by vehicles using the north portion of the highway.

From the plaintiff's own testimony, the following statements indicate what happened. He stated:

'A. I was coming down Reading road, coming south on Reading road and I turned over Section, as I usually come over Section, or I mean over Losantiville, but on account of that fog, the night too bad, I decided I would turn off and come over the other road, because Section road is a narrow road. I came over Brook Crest. I turned right on Section to Brook Crest and from Brook Crest to Losantiville. And I proceeded down there very cautiously. It was a foggy night and I had my windshield wiper going, and I proceeded down on the right-hand side, which is the proper way to drive, and as I got down just about that underpass my lights were going down to the road street. There is a jog in the road along this underpass, and I saw this equipment in the distance, and when I discovered there was something going on, I stopped my car and tried to figure out what it was. I saw some red lights along the side. I thought I would check to see. I didn't know whether the road was blocked or whether you could get through or not, although there were no signs this way over this entire distance of any kind. So I turned, and the next thing I heard some scraping in the top, and I came to a sudden stop. I was not going very fast, and I got out of the car and here was this piece of equipment, boom, which was on the right side of my car and into the top of my windshield. So I got out of the car. Of course, I didn't know what was blocking the road, and the weather being bad.

'* * *

'A. I was driving very cautiously, slow, I would say not over twenty miles an hour, and when I got down to this, approached the underpass, then I stopped the car when I saw some lights, and those lights, they were upon this cab, which was quite a distance, and then I saw a couple of lights along the middle of the road. I immediately proceeded cautiously on the left hand side, very slowly. I didn't get very far when this boom, sticking out over the edge of the road, come in contact with the windshield and top of my car as the picture shows.

'Q. How high was the bottom of this boom from the road? A. I would say about the height of a car, about five feet, four to five feet.

'Q. How far, if you know, did it extend beyond the middle of the road, about? A. About, I would say two feet, two to two and a half feet from the center of the road to the north, to the north side of the road.

'Q. State whether or not you ever saw this boom before you hit? A. No; I didn't know it was there. I was watching the road due to the narrowness of it, and passing, trying to get around, my lights were down to the road.

'Q. What was the condition of the night? Was it a nice, clear night, or what kind of a night was it? A. It was foggy and misty, in fact, it was necessary to drive very slow, because you could not see, especially in low spots, where this particular place is. In the low places the fog hangs, it was necessary to have your windshield wiper going to keep it as clear as possible.

'* * *

'A. There was lights all along the ditch, the open ditch, where my car was standing.

'Q. You saw these lanterns all along the ditch? A. There were two or three of them, I don't know how many, along this open ditch.

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