Sherer v. Smith

• Decision Date: 13 June 1951
• Docket Number: No. 32284,32284
• Citation: 99 N.E.2d 763,155 Ohio St. 567
• Parties: , 44 O.O. 506 SHERER v. SMITH.
• Court: Ohio Supreme Court

Page 567

155 Ohio St. 567

99 N.E.2d 763, 44 O.O. 506

SHERER v. SMITH.

No. 32284.

Supreme Court of Ohio.

June 13, 1951.

Syllabus by the Court.

1. The 'assured-clear-distance-ahead' rule contained in Section 6307-21, General Code, has no application in a situation where a person, motor vehicle or other object suddenly enters the path of another motor vehicle in such manner that the operator of such other motor vehicle is afforded no reasonable opportunity to stop his vehicle and avoid a collision.

2. For such rule to apply it must appear that a person, motor vehicle or other object came into the view of the operator at a point sufficiently distant ahead to enable such operator, in the exercise of ordinary care, to stop his vehicle and avoid a collision. (Erdman v. Mestrovich, 155 Ohio St. 85, 97 N.E.2d 674, approved and followed.)

3. In an action to recover damages resulting from a colllision of two automobiles, where the automobiles, one proceeding north and the other west at a lawful speed, approached a place where the thoroughfares, over which they were traveling, intersected and there were electric traffic lights at such intersection, and each automobile operator testifies that the traffic light facing him was green when he entered the intersection and that he did not observe the automobile of the other until a second before the collision, the court proceeds properly in withdrawing from the consideration of the jury a specification of negligence charging one of the operators with a violation of the 'assured-clear-distance-ahead' rule.

4. Where, in an action for damages growing out of a collision of automobiles, it is plainly evident from the verdict of the jury that it found that both plaintiff and defendant were chargeable with negligence which directly contributed to the collision and ensuing damages or that it was unable to determine from the evidence where the blame for the collision lay, any error of the trial court in admitting or rejecting evidence on the subject of damages is harmless unless such rulings palpably prejudiced the jury on the main issue in the case.

5. Where, in such an action, error has occurred in the exclusion of testimony but such testimony, or testimony to the same effect, is later given by the witnesses, no prejudice results.

The present litigation grows out of a collision between two automobiles at a street intersection in the village of Montpelier, Ohio. Darcy Sherer filed his petition in the Court of Common Pleas of Williams County against William G. Smith, a minor, claiming that the collision occurred by reason of Smith's negligence and praying for judgment in the sum of $5,000 on account of personal injuries sustained and for damage to plaintiff's automobile. Smith filed an answer by his guardian ad litem denying the material allegations of the petition. This was accompanied by a cross-petition in which the defendant charged plaintiff with negligence and in which he asked judgment in the sum of $300 for damage to his automobile.

Upon the second trial of the action before the court and a jury, with which trial we are presently concerned, the evidence as to which of the parties was lawfully in the intersection with the right of way was conflicting.

The collision occurred late on the night of November 28, 1945, at the intersection of Monroe and Main streets where four electric traffic lights had been installed. Plaintiff testified that he was driving north on Monroe street at a speed of about 15 miles per hour; that the traffic light at the intersection facing him turned green as he was passing an alley some distance south of the intersection; and that he drove into the intersection without again looking at the light and was struck by defendant's automobile as plaintiff was passing through the intersection.

Defendant testified that he was driving his automobile westerly on Main street at a speed of about 20 miles per hour; that just before he reached the intersection the traffic light facing him turned green; and that he entered the intersection on the green light.

Both plaintiff and defendant testified that neither observed the other's automobile until a second before the crash.

At the conclusion of plaintiff's case in chief, the trial judge sustained defendant's motion to withdraw from the consideration of the jury the specification of negligence, contained in the petition, charging defendant with the violation of that part of Section 6307-21, General Code, providing that no person shall drive a motor vehicle at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead. No charge on that subject was given.

In his general charge the trial judge correctly instructed the jury on the issues of negligence, contributory negligence, proximate cause and damages and properly covered the various elements involved in a collision of motor vehicles at a street intersection under the circumstances presented.

Further charging the jury, the trial judge said:

'However, if you should find that neither plaintiff nor defendant were negligent or if you should find by a preponderance of the evidence that both plaintiff and defendant were negligent and their negligence proximately...