Smith v. Zone Cabs
| Decision Date | 24 May 1939 |
| Docket Number | 27180. |
| Parties | SMITH v. ZONE CABS et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
In a personal injury action by a pedestrian against an operator of a motor vehicle, where it appears from the evidence that the pedestrian is guilty of negligence per se by reason of violating an ordinance of a municipality and it further appears that there is evidence tending to show negligence on the part of the operator of the motor vehicle and direct causal connection between such operator's negligence and pedestrian's injury, the issue still remains as to whether pedestrian's negligence directly contributed to produce his own injury and is one for the jury provided the state of record is such that reasonable minds may differ on the conclusions to be drawn from the evidence on that issue.
This is an action for damages for personal injuries sustained by appellant, plaintiff below, when struck by appellees' taxicab. The petition charged appellees with negligence in operating their taxicab at an unlawful rate of speed, with failure to keep a proper lookout, and with failure to divert the course of the taxicab or to stop to avoid striking appellant. The answer made certain admissions, but denied that the collision occurred in the manner alleged in the petition, and by way of affirmative defense averred that if appellees be found to have been negligent in one or more respects, the injuries sustained by appellant were nevertheless proximately caused by his own negligence, first in violating the state laws by walking on the vehicular travelled portion of the highway at a point other than a crosswalk; second, in violating the city ordinance which provided that persons crossing the streets at points other than a crosswalk must yield the right of way to vehicles third, in stepping out in front of appellees' vehicle without observing its approach, and without exercising due care for his own safety; and, fourth, in stepping out from behind parked vehicles without exercising due care for his own safety.
The record discloses that at the time and on the date mentioned above, appellant alighted from the right-hand side of an automobile which was parked diagonally, as were other automobiles, on the west side of South Main street, about 115 feet north of Franklin street, or about two-thirds of the way down the block from Market street; that he stepped off the curb and proceeded between the parked cars to the rear of the automobile, to a point in the street where he could observe the flow of traffic; that he stopped, looked to the north and to the south before attempting to cross; that he observed the lights of the taxicab approaching from the north approximately 285 feet away; that, thinking he had time to cross with safety, he proceeded to do so without again looking to the north, and after he had walked a distance of several feet he was struck by appellees' taxicab and hurled a distance of 80 to 85 feet. The taxicab, although equipped with hydraulic, four-wheel brakes, which were relined that very day, traveled a distance of approximately 115 feet after striking appellant, and skidded on a dry pavement a distance of 50 to 75 feet. The point at which he attempted to cross was between street intersections in an admittedly congested district of the city of Warren.
Appellees introduced into evidence an ordinance adopted by the city of Warren in 1925, which made it unlawful for pedestrians to cross between intersections in the congested district. Appellees also introduced an ordinance of the city of Warren, adopted in 1929, which provided:
'Every pedestrian crossing a roadway at any point other than within a marked or unmarked crosswalk shall yield the right of way to vehicles upon the roadway, provided that this provision shall not relive the driver of a vehicle from the duty to exercise due care for the safety of pedestrians.'
There is testimony in the record to the effect that just before the impact the taxicab was operated at a speed of at least 45 miles per hour.
At the conclusion of appellant's evidence, and again at the conclusion of all the evidence, appellees moved for a directed verdict, which motions were overruled. The jury returned a verdict for appellant for the sum of $7,000. The trial court overruled appellees' motion for a judgment notwithstanding the verdict and their motion for a new trial and rendered judgment upon the verdict. The judgment was reversed by the Court of Appeals of Trumbull county, which court rendered final judgment for defendant for the reason that the undisputed evidence showed plaintiff was guilty of contributory negligence as a matter of law. That court certified the cause to this court on the ground that its judgment was in conflict with that of the Court of Appeals of Muskingum county in the case of Mansperger v. Ehrnfield, 59 Ohio App. 74, 17 N.E.2d 271.
G. P. & M. E. Gillmer, Philip Fusco, and Clarence H. Klinger, all of Warren, for appellant.
Charles F. Scanlon and Clarence L. Becker, both of Akron, for appellees.
The question is whether the mere violation of an ordinance which prohibits a pedestrian from crossing between street intersections is to be deemed, as a matter of law, the proximate cause of appellant's injuries.
It is fundamental that mere negligence on the part of a plaintiff is as insufficient to preclude his recovery as mere negligence on the part of a defendant is insufficient to fix his liability. To preclude recovery in the one case, or to fix liability in the other, the negligence, claimed or presumptive, must be shown to have been the proximate cause.
The law presumes negligence from appellant's violation of the ordinance (Schell v. DuBois, Adm'r, 94 Ohio St. 93, 113 N.E. 664, L.R.A.1917A, 710), but does not, from that presumption alone, presume that such negligence was the proximate cause of his injuries. Although the former is presumed as a matter of law, the latter must be proved as a matter of fact. 'Proximate cause and negligence are wholly different elements and should not be confused.' Blackford v. Kaplan, 135 Ohio St. 268, at page 273, 20 N.E.2d 522, at page 526.
Whether appellant's negligence was the proximate cause of his injuries is a question which can be determined only from a consideration of all the evidence--a function peculiarly for the jury. Where the state of the evidence is such as to justify different minds in reasonably arriving at different conclusions with respect to that question, or where it is doubtful whether reasonable minds would or would not differ in the inferences drawn from such evidence, the question remains one for the jury. See Durbin v. Humphrey Co., 133 Ohio St. 367, 370, 14 N.E.2d 5.
An ordinance of the city of Warren forbade pedestrians to cross between street intersections in the business district of the city, violation of which, by appellant, constituted negligence per se. Schell v. DuBois, supra. However, the negligence which the law attributes to appellant is not, in and of itself, sufficient to preclude his recovery. To operate as a bar, his negligence must be shown as a matter of fact to have had a causal relation to and connection with his injuries. In other words, the negligence which the law here attributes to appellant must be shown to have been the proximate cause of his injuries. Negligence per se and proximate cause are two separate and distinct issues. While one is presumed as a matter of law, the other must, nevertheless, be proved as a matter of fact. Although appellant crossed the street between intersections, in violation of an ordinance, he cannot be held as a matter of law to have reasonably apprehended that in so doing injury would result. Even to a pedestrian thus crossing, a motorist owes the duty of exercising ordinary care. It is true that such ordinance gives to a motorist the right of way between intersections. However, that right is not absolute but preferential only, and the motorist is not absolved from his duty of exercising ordinary care for the safety of pedestrians, rightfully or wrongfully on the highway between such intersections. Whether the cab driver in the instant case exercised such care was a question of fact for the jury.
It is necessary to inquire into the conduct of both the appellant and the cab driver immediately preceding the accident to determine whose negligence it was which furnished the proximate cause. Where negligence is, by law, attributed to a pedestrian, and the record discloses...
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