Tenhunfeld v. Parkway Taxi Cab Co.

• Decision Date: 09 December 1957
• Citation: 152 N.E.2d 770,105 Ohio App. 425
• Parties: , 6 O.O.2d 182 TENHUNFELD, Appellant, v. PARKWAY TAXI CAB CO., Appellee.
• Court: Ohio Court of Appeals

Page 425

105 Ohio App. 425

152 N.E.2d 770, 6 O.O.2d 182

TENHUNFELD, Appellant, v. PARKWAY TAXI CAB CO., Appellee.

Court of Appeals of Ohio, Hamilton County.

Dec. 9, 1957.

Syllabus by the Court.

1. In an action for personal injuries resulting from a collision of motor vehicles, when the issues are negligence, contributory negligence, proximate cause and damage, a motion for a directed verdict in favor of the defendant, at the conclusion of plaintiff's case, must not be sustained when, after construing the evidence, the reasonable inferences to be drawn therefrom, and facts established, by admission in the pleadings or in the record, most strongly in favor of the plaintiff, there is evidence upon which reasonable minds may reach different conclusions pertinent to the issues involved.

2. The violation of the 'assuredclear-distance-ahead' rule (Section 4511.21, Revised Code) consists of the operation of a motor vehicle at a greater speed than will permit the operator thereof to bring it to a stop within the assured clear distance ahead, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance, within such clear distance and into his path or line of travel, of an obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.

3. Whether an operator of a motor vehicle, who is unable to avoid a collision after his assured clear distance ahead is lessened by the sudden entrance into his path or line of travel of another motor vehicle, is exercising ordinary care at the time, presents a mixed question of fact and law.

4. While, under Section 4511.21, Revised Code, the driving of an automobile at a speed of 30 miles an hour in a 25-mile-an-hour zone is prima facie unlawful and therefore prima facie negligent, driving at such prima facie unlawful speed is not unlawful nor necessarily negligent if it is not unreasonable or improper 'having due regard to the traffic, surface and width of the street or highway and any other conditions' then existing.

5. Under a factual setting where reasonable minds may reach different conclusions as to whether a plaintiff violated the 'assured-clear-distance-ahead' statute or the 'speed' statute, even though such plaintiff was operating an automobile at a speed designated by the statute as 'prima facie unlawful,' a submission of these questions to the trier of the facts is required.

W. F. Boelter, Cincinnati, for appellant.

Bloom & Tyler, Cincinnati, for appellee.

DOYLE, Judge.

Joseph Tenhundfeld (erroneously impleaded as 'Tenhunfeld') was injured in a collision of motor vehicles in the night on the 18th of March, 1955, near the intersection of Warsaw and McPherson Avenues in the city of Cincinnati, Ohio.

In an action brought by him in the Common Pleas Court of Hamilton County against the Parkway Taxi Cab Company, he alleged that, as he was driving his automobile easterly on Warsaw Avenue, a taxicab, owned by the defendant and operated by its servant, was driven 'from a parked position along the south curb of Warsaw Avenue and east of McPherson Avenue into the lane of traffic in which the plaintiff was traveling; that as a result of the sudden movement of the taxicab * * * a collision between the two vehicles resulted.'

The petition continued by spelling out specific claims of negligence which were asserted to have been the proximate cause of the collision and resulting damage.

The defendant admitted the accident and alleged that negligent conduct of the plaintiff himself was the proximate cause of the accident.

A trial ensued, and at the conclusion of the plaintiff's case, upon motion of the defendant for a directed verdict, the court observed:

'The court has reviewed the record in this matter and given the motion consideration. The court has come to the conclusion that the plaintiff's evidence has raised an inference and a presumption that he was guilty of negligence at the time of the collision in question, which inference or presumption has not been dispelled or counterbalanced by him. Under authority of the Ziebro case [Ziebro v. City of Cleveland] in 157 Ohio S. 489 , and the cases therein cited the court is of the opinion that it becomes its duty to grant the motion and direct a verdict for the defendant. Such will be the action of the court.'

A journal entry recording the action of the court was duly entered, and the present appeal stems from the order to which the following assignments of error are directed:

Error '(1) in sustaining the motion for a directed verdict made by the defendant at the close of the plaintiff's evidence, and in entering final judgment for the defendant; (2) in overruling the motion of the plaintiff for a new trial; (3) other errors of law occurring at the trial of the cause.'

Before going to the record of evidence, we first observe that 'In passing upon a defendant's motion for a directed verdict, the trial court is required to construe the evidence most strongly in plaintiff's favor.' Tanzi v. New York Central R. Co., 155 Ohio St. 149, 98 N.E.2d 39, 40, 24 A.L.R.2d 1151; Hamden Lodge, etc. v. Ohio Fuel Gas Co., 127 Ohio St. 469, 189 N.E. 246.

It is, of course, obvious that a reviewing court, in appraising the action of a trial court in directing a verdict for a defendant, must likewise construe the evidence most strongly in plaintiff's favor.

We find evidence and reasonable inferences which can be drawn therefrom indicating that the plaintiff drove his automobile easterly on Warsaw Avenue in the vicinity of McPherson Avenue at 1:30 a. m. on March 18, 1955; the street was wet from falling snow, but the visibility was fair; he proceeded at a speed (according to his own testimony) 'of anywhere from 30 to 35 miles per hour' (in construing this testimony 'most strongly' in his favor, we must recognize the speed as 30 miles an hour); he saw the defendant's taxicab as well as another car parked on the south side of Warsaw Avenue when he was more than 200 feet from it; at this time there was no automobile ahead of him moving in either direction; wheh his car reached the eastern side of McPherson Avenue in its intersection with Warsaw Avenue, the taxicab pulled away from the curb 'in a 90~ angle' toward the north, 'straight across to the other side of the street'; the taxicab, according to the testimony of the plaintiff, was parked '30-40 feet' from the southeast corner of McPherson and Warsaw Avenues when it proceeded from the curb and into the street; in construing this language 'most strongly' in favor of the plaintiff, we must find that the taxicab commenced to travel into plaintiff's path when his car was 30 feet distant; the plaintiff doesn't know whether he applied his brakes before the crash, although he attempted to do so; the collision occurred on the northerly side of Warsaw Avenue, and a police officer, who arrived upon the scene shortly after the collision and before the cars were moved, found the taxicab 'up against a wooden telephone pole' approximately 'two or three car lengths' from the corner of McPherson and Warsaw Avenues.

From this scant epitome of the record, and in thinking in terms of a directed verdict, it may be properly observed that the plaintiff, while driving on a public thoroughfare with no traffic moving in either direction, and driving at a speed of 30 miles an hour, was suddenly confronted with the movement of a taxicab, which commenced to make a 'U turn' from a parked position across his path of travel when but thirty feet distant from the front of his automobile, and which movement resulted in a collision causing damage.

It is here further stated that the speed limit in the area under consideration was 25 miles an hour.

A statement of legal principles regulating situations of the kind before us is not difficult. The difficulty arises in applying the law to the facts.

We first look to a pertinent statute (Section 4511.21, Revised Code) regulating the conduct of the plaintiff at the time of and before the accident, because if his conduct falls within its prohibitions and was a proximate cause of the accident, then the rule adopted in Ziebro v. City of Cleveland, 157 Ohio St. 489, 106 N.E.2d 161, must be given serious consideration.

Section 4511.21, Revised Code, provides in part:

'No person shall operate a motor vehicle * * * in and upon the streets and highways at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, and no person shall drive any motor vehicle * * * in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead. * * *' (Emphasis ours.)

The statute continues by making it prima facie unlawful for a person to operate an automobile at a speed greater than 25 miles an hour in the area of the city in which this accident occurred. It is conceded that plaintiff was driving at a prima facie unlawful speed, but whether he violated the statute and was guilty of negligence was a question of fact for the jury, in the light of all attendant circumstances. A prima facie unlawful speed may be rebutted by evidence which a jury might find would bring such speed within lawful limits.

In Ziebro v. City of Cleveland, supra, will be found the following rules of law applied by the trial judge to this case:

'1. In an action where the negligence of the defendant is admitted or proved, contributory...