Smith v. Jones

• Decision Date: 27 October 1960
• Citation: 175 N.E.2d 758,112 Ohio App. 195
• Parties: , 16 O.O.2d 123 SMITH, Appellant, v. JONES, Appellee. *
• Court: Ohio Court of Appeals

Page 195

112 Ohio App. 195

175 N.E.2d 758, 16 O.O.2d 123

SMITH, Appellant, v. JONES, Appellee. ^*

Court of Appeals of Ohio, Second District, Clark County.

Oct. 27, 1960.

Syllabus by the Court

1. The fact that a driver on a through street, upon whom the right of way is conferred, forfeits such right of way by driving in an unlawful manner, does not relieve an unfavored driver (approaching such through street from a stop street) of the duty to look for approaching vehicles on such through street and to exercise ordinary care to avoid a collision. If such unfavored driver fails to exercise ordinary care, he is guilty of negligence, and if such negligence contributes to the proximate cause of a collsion he cannot recover.

2. Where, in an action to recover for damages resulting from an automobile collision, the evidence shows that plaintiff's automobile, approaching a through street, came to a stop at the curb line of such intersecting street and then drove into and across such intersection without stopping, changing direction or reducing speed and that the roadbed was dry, the weather clear and the visibility unobstructed for a distance of more than one block to plaintiff's right on such through street in the direction in which defendant's automobile was approaching in excess of the speed limit, it is not error for the trial court to direct a verdict for defendant on the ground that plaintiff was guilty of contributory negligence as a matter of law, notwithstanding the conduct of defendant, whose preferred right of way was forfeited by proceeding in an unlawful manner.

Rush, Henderson & Rush, Springfield, for appellant.

Gardner & Acton, springfiled, and Pickrel, Schaeffer & Ebeling, Dayton, for appellee.

WISEMAN, Presiding Judge.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Clark County entered on a verdict directed in favor of the defendant at the close of plaintiff's case.

Plaintiff sued for damages growing out of an automobile collision which took place in the city of Springfield at the intersection of South Limestone Street and Grand Avenue on January 7, 1956, at 5 p. m. Plaintiff alleges that he was operating his Ford automobile in a westerly direction on Grand Avenue, and, upon reaching South Limestone Street, he brought his automobile to a complete stop; that he then attempted to cross Limestone Street, after first ascertaining that he could cross in safety; that the defendant was operating his De Soto automobile in a southerly direction on Limestone Street and was approaching from the north of the intersection; and that a collision occurred causing plaintiff great personal injury. Plaintiff alleges that the defendant was driving at a rate of speed of 55 miles per hour, in violation of the city ordinances. The defendant's answer was in the nature of a general denial.

The evidence shows that South Limestone Street is a main thoroughfare extending in a northerly and southerly direction; and that Grand Avenue extends in an easterly and westerly direction, and intersects South Limestone Street at right angles, except that there is a slight jog to the north on the west side of South Limestone Street. There were stop signs on Grand Avenue, requiring vehicles to stop before crossing South Limestone Street. Plaintiff and defendant were the only occupants of the respective automobiles. South Limestone Street is 46 feet wide between curbs at the point of collision. A driver headed in a westerly direction in a stopped position at the east side of South Limestone Street has an unobstructed view north on Limestone Street for a distance of more than a city block. The roadbed was dry, the weather was clear and the visibility was good.

The evidence shows that the defendant was driving at a rate of speed of 55 miles per hour, in a 35 mile per hour zone; that the defendant applied his brakes and skidded a distance of 130 feet before the impact; that the front end of defendant's automobile struck the door on the right side of the plaintiff's automobile; that plaintiff's automobile was knocked sidewise 14 feet and into the northbound lane of Limestone Street; and that defendant's automobile swung around and travelled an additional 21 feet before coming to a stop.

There is nothing in the evidence to show that the plaintiff was aware of the approach of defendant's automobile or that a collision was likely to occur. The plaintiff did not testify with respect to the manner in which the collision occurred due to a loss of memory. Two witnesses called by the plaintiff testified relative to the actions of the two drivers immediately before the collision.

The evidence shows that the plaintiff, after stopping at the east curb of Limestone Street, drove his automobile across the intersection in the westbound lane of Grand Avenue, and into the southbound lane of traffic on Limestone Street, at a rate of speed of from 8 to 10 miles per hour, without stopping, changing the direction, or reducing the speed of his automobile.

The evidence further shows that the defendant was driving on a main thoroughfare and approaching the intersection to plaintiff's right. The plaintiff contends that under the evidence the defendant had lost the right of way because of excessive speed. The defendant contends that, assuming the defendant lost the right of way and was negligent, the evidence shows that the plaintiff was guilty of contributory negligence as a matter of law.

The court, in passing on the motion to direct a verdict, dictated into the record his decision on the motion. The court stated that 'for the purpose of the motion it may be conceded that the defendant, although he had the right of way by reason of operating his vehicle on a through street, nevertheless forfeited the right of way because of the unlawful manner in which he was then driving, namely, at the time 55 miles per hour.' The court then stated that it is conceded that plaintiff stopped as required by law before entering the intersection; and then stated that 'the law likewise imposes § duty upon the driver thereafter to yield the right of way to the vehicles traveling on the main highway.' Generally, this is a correct statement of the law. The court continued by stating it was the duty of the unfavored driver to keep a lookout for vehicles on the main thoroughfare upon entering and in crossing the intersection. We conceive this to be a correct statement of the law. The court gave due recognition to the rule of law laid down in Morris v. Bloomgren, 127 Ohio St. 147, 187 N.E. 2, 89 A.L.R. 831, which held '3. The phrase 'in a lawful manner,'...