Swoboda v. Brown
| Decision Date | 29 May 1935 |
| Docket Number | 24938. |
| Citation | 129 Ohio St. 512,196 N.E. 274 |
| Parties | SWOBODA v. BROWN. |
| Court | Ohio Supreme Court |
Error to Court of Appeals, Lucas.
Action by James F. Brown against one Swoboda. To review a judgment of the Court of Appeals, reversing a judgment of the Court of Common Pleas in favor of defendant, defendant brings error.-[Editorial Statement.]
Judgment of Court of Appeals reversed, and judgment of trial court affirmed.
This action was instituted in the court of common pleas of Lucas county, and is a suit for damages for personal injuries plaintiff claims were caused by the negligent operation of defendant's automobile. Plaintiff's injuries resulted from a collision of his motorcycle and the defendant's automobile at a street intersection in the city of Toledo. The automobile driven by the defendant was traveling in a southerly direction on Front street. The plaintiff, a city motorcycle policeman, in pursuit of a speed-law violator, was at that time traveling in the same direction on Front street. The defendant sought to turn to the left into Justice street at the intersection, and the collision occurred as plaintiff was attempting to pass defendant's automobile on the left.
The negligence charged by plaintiff was a violation of the statutes and ordinances requiring certain signals to be given before making a left-hand turn. The answer, following a general denial, charged negligence on the part of the plaintiff, in that he violated provisions of the ordinance of the city forbidding passing another vehicle at a street intersection while going in the same direction, and also in failing to give any signal, and, further, in driving a vehicle not under control. These averments were denied by reply, but were supported by substantial proof, and evidence was adduced showing speed of the motorcycle as high as 65 miles per hour at the time of the collision.
Trial upon the issues made resulted in a general verdict for the defendant. Answer to an interrogatory submitted upon the request of the defendant was also returned by the jury as follows:
Upon proceeding in error, the judgment entered by the court of common pleas upon the verdict was reversed by the Court of Appeals upon the sole ground that the trial court committed prejudicial error in instructing the jury in the general charge as follows: ‘ Now, ladies and gentlemen of the jury, these sections of the General Code and these ordinances of the City of Toledo which have been read to you fixed the duty of the plaintiff while he was riding his motorcycle at the time and place set forth in his amended petition, and a violation of said statute or of said ordinances in any particular proximately causing injury and damage to plaintiff would constitute contributory negligence, or failure to exercise ordinary care.’
Thereafter the case, upon allowance of motion therefor, was certified to this court.
Syllabus by the Court .
1. A general verdict for a party is a favorable finding upon all the issues, and, in a case where the issues are such that a finding for a party on either of them would entitle him to the judgment rendered in his favor, such judgment will not be reversed for error in instructions of the court relating exclusively to another issue.
2. But if prejudicial error is committed in the submission of an issue which it clearly appears, by answer to an interrogatory submitted upon request of defendant, was decided by the jury against the plaintiff, the verdict will not be sustained though it is possible the finding upon some other issue submitted without error may also have been against the plaintiff.
3. Where an injury is sustained by a motorcycle traffic officer as the result of a collision of his motorcycle with an automobile on a city street, proximately caused or directly contributed to by his own violation of a statute or ordinance enacted for the protection of the public, he may not recover damages for such injury from the owner or operator of such automobile.
4. The distinction between negligence and ‘ negligence per se’ is the means and method of ascertainment. The former must be found by the jury from the facts, the conditions, and circumstances disclosed by the evidence; the latter is a violation of a specific requirement of law or ordinance, the only fact for determination by the jury being the commission or omission of the specific act inhibited or required.
5. The test prescribed by section 12603, General Code, to determine the lawfulness or unlawfulness of speed of motor vehicles upon the public highway, is whether such speed is greater or less than is reasonable or proper under existing conditions.
6. Though the violation of the general speed provisions of section 12603, General Code, may not properly be denominated negligence per se, an instruction that such violation constitutes negligence or failure to exercise ordinary care is not erroneous.
7. The provisions of an ordinance prohibiting the passing of another vehicle at a street intersection, driving a vehicle when not under control, and requiring a signal before passing another vehicle going in the same direction, are absolute and specific requirements, the violation of which constitutes negligence per se.
8. One may rightfully assume the observance of the law and the exercise of ordinary care by others, and action by him in accordance with such assumption, in the absence of notice or knowledge to the contrary, is not negligence.
Smith, Baker, Effler & Eastman, of Toledo, for plaintiff in error.
Holloway, Peppers & Romanoff, of Toledo, for defendant in error.
The Court of Appeals found the only reversible error arises out of the portion of the general charge respecting the issue of contributory negligence of the plaintiff. If this conclusion be assumed to be correct, the first question presented is the applicability of the so-called two issue rule. Concededly it does apply and would warrant judgment in favor of the defendant, but for the answer of the jury to the interrogatory submitted wherein they specifically found against the plaintiff upon the issue of contributory negligence. Let us therefore consider what the two issue rule is and the reason for its adoption and application. A general verdict for a party is a favorable finding upon all the issues, and, in a case where the issues are such that a finding for a party on either of them would entitle him to the judgment rendered in his favor, such judgment will not be reversed for error in instructions of the court relating exclusively to another issue. In the more recent cases in this court it has been held that such principle would be applied where there is a general verdict and no disclosure by answers to interrogatories or otherwise upon which issue the verdict was based, thus disregarding error not shown to have affected the result. Here by answer to an interrogatory submitted upon request of the defendant it is disclosed that the jury found against the plaintiff upon the issue of his negligence as a direct or contributing cause of the collision, in the submission of which issue it is contended error prejudicial to plaintiff was committed. It may be true that the jury also found that defendant was not negligent, but to hold that the court will not inquire whether prejudicial error was committed in the submission of an issue upon which it is made clear that the jury found against plaintiff would disregard the very reason for the rule. Although adhering to the principle frequently announced and recently applied in negligence cases in Knisely v. Community Traction Co., 125 Ohio St. 131, 180 N.E. 654, and Binder v. Youngstown Municipal R. Co., 125 Ohio St. 193, 180 N.E. 899, we have no inclination to further extend its application. If prejudicial error is committed in the submission of an issue which it clearly appears was decided by the jury against the plaintiff, the verdict should not be sustained, though it is possible the finding upon some other issue submitted without error was also against the plaintiff.
We therefore take up for consideration the portion of the general charge in question. It is as follows: ‘ Now, ladies and gentlemen of the jury, these sections of the General Code and these ordinances of the City of Toledo which have been read to you fix the duty of the plaintiff while he was riding his motorcycle at the time and place set forth in his amended petition, and a violation of said statute or of said ordinances in any particular proximately causing injury and damage to plaintiff would constitute contributory negligence, or failure to exercise ordinary care.’
The provisions of the General Code and of ordinances of the city of Toledo therein referred to which are pertinent are as follows: Section 12603, General Code, which provides: ‘ No person shall operate a motor vehicle in and upon the public roads and highways at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface and width of the road or highway and of any other conditions then existing, and no person shall drive any motor vehicle in and upon any public road or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead.
‘ It shall be prima facie lawful for the operator of a motor vehicle to drive the same at a speed not exceeding the following:
‘ Twenty miles per hour in the business or closely built-up portions of a municipal corporation.
‘ Thirty-five...
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