Tanton v. Zubkowicz
| Decision Date | 26 November 1971 |
| Docket Number | No. 835335,835335 |
| Citation | 32 Ohio Misc. 108,288 N.E.2d 864 |
| Parties | , 61 O.O.2d 179 TANTON v. ZUBKOWICZ. |
| Court | Ohio Court of Common Pleas |
D'Arnold Davis and Samuel Handelman, Cleveland, for plaintiff.
Joseph J. Naegele and Edward T. Clarke, Cleveland, for defendant.
HITCHCOCK, Judge (By assignment from Paulding County.)
Plaintiff's motion for a new trial is granted despite a unanimous verdict for the defendant in an action growing out of a 1965 automobile accident, the fact that there are two other pending cases resting upon the same facts, and that the court has strong feeling that all three cases should be swiftly terminated. The reasons why are set forth in the opinion which follows:
Ohio Civil Rule 59, New Trial, now provides in part:
'(A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds:
'* * *
'(6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence in the same case;
'* * *
'In addition to the above grounds, a new trial may also be granted in the sound discretion of the court for good cause shown.
'When a new trial is granted, the court shall specify in writing the grounds upon which such new trial is granted.
'* * *.'
Uncontroverted evidence shows that on June 25, 1965, in dry weather, Archie Tanton, plaintiff's ward then competent, a domestic maid of 61, was driving her 1964 Chevrolet coach east on four-land Harvard Avenue at about 11:30 p.m. in a level area in Cleveland where twenty-five miles per hour was the prima facie lawful speed, and a speed exceeding the same was prima facie unlawful. As she approached the point where two-lane East 176th Street intersects Harvard to the north she signalled and made a left turn. Her Chevrolet was proceeding slowly and when the front wheels were perhaps just over the north boundary line of Harvard and into East 176th it was struck by defendant's west bound 1964 Pontiac coach in the north lane of Harvard. Mrs. Tanton, her car, and two small granddaughter passengers were thrown 85 feet west of the probable point of impact on a line about 20 -30 to the north. Her car came to rest against a service station gas pump. Defendant's Pontiac made a reverse bounce and came to rest over the north curb of Harvard some fifteen-twenty feet east of the probable point of impact. Defendant, a man of twenty-two at the time, was accompanied by two other young men, one twenty and the other twenty-four years of age. Mrs. Tanton and one granddaughter suffered physical injuries, as did defendant's passengers. The other granddaughter was killed and defendant 'shook up.' Both autos were badly damaged.
At the time of the trial Mrs. Tanton was not competent to testify and defendant was not permitted to testify by reason of the 'dead man statute' which applies to guardians as well as executors and administrators.
The police found fifty-eight feet of solid skid marks on the dry asphalt pavement running east and west in the curb lane of Harvard. These skid marks ended perhaps twenty feet east of the probable point of impact and ran to the east thereof a distance of fifty-eight feet. The police who investigated this accident arrived on the scene at 12:20 a. m., June 26, 1965. The police investigator was of the opinion that when he arrived at the scene neither car had been moved subsequent to coming to rest after the collision; also, that the skidmarks were made by defendant's Pontiac but made no mention whatever of their significance, or the significance of the location of the vehicles following their collision in terms of speed and force necessary to produce such result.
Why this cause was so long in coming to trial is not known. It was only the exercise of positive direction by Chief Justice John V. Corrigan and this court that resulted in this trial beginning on July 15 and ending on July 21, 1971. It also appears that until the Chief Justice first directed in March 1971, that this cause be tried or dismissed on the first of three consecutive days certain that no competent investigation of the accident was made by anyone for plaintiff and the court must suspect the poverty of the original plaintiff (now plaintiff's ward) as the chief reason, not to mention that she remained in the hospital from June 26, 1955 to October 8, 1965. At the eleventh hour the case was investigated preparatory to trial and witnesses-including some discovered for the first time-were interviewed. Although plaintiff did present a prima facie case, the crucial evidence offered to sustain the fact pattern plaintiff attempted to prove consisted, in the opinion of the court, of incredible testimony.
The evidence of speed as reflected by the skid marks and the obvious propulsion through space of the involved automobiles appears not to have been appreciated by either the police or plaintiff's counsel. For this court, it is extremely difficult to believe that the intelligence at defendant's command did not really...
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