Townsend v. Downing, C-880335
| Decision Date | 28 June 1989 |
| Docket Number | No. C-880335,C-880335 |
| Citation | 568 N.E.2d 719,58 Ohio App.3d 59 |
| Parties | TOWNSEND v. DOWNING, Appellant; Colbert et al., Appellees. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. The operator of a motor vehicle intending to make a left turn within an intersection is required to yield the right of way to any vehicle approaching from the opposite direction, even if the approaching vehicle has its turn signal in operation but proceeds straight through the intersection.
2. A genuine issue of material fact exists in a negligence action, where the driver of a vehicle proceeding straight through an intersection in contravention of the turn signal may not have exercised ordinary care after discovering that the driver of a vehicle attempting to make a left turn was not yielding the right of way.
Gustin & Lawrence Co., L.P.A., and James W. Gustin, Cincinnati, for appellant.
Rendigs, Fry, Kiely & Dennis and Jill E. Thompson, Cincinnati, for appellees.
This appeal came on to be heard upon the transcript of the docket, journal entries and original papers from the Hamilton County Court of Common Pleas, the briefs and arguments of counsel.
In the trial court, Charlotte Colbert and William Colbert instituted an action against Steven M. Downing for damages resulting from an automobile accident between vehicles that had been driven by Charlotte Colbert and Steven Downing. This action is numbered A-8700658 on the docket of the trial court. Thereafter, a second action arising out of the same accident was commenced by Shirley Townsend, the operator of a Queen City Metro bus, for personal injuries sustained when her stationary bus was struck by Downing's vehicle after it had been struck by the vehicle owned by Community Action Agency and operated by Charlotte Colbert. Defendants in the second action, numbered A-8701065 on the docket of the trial court, are Downing, Charlotte Colbert, and Community Action Agency.
Although there was a motion to consolidate the two cases, no entry of consolidation is contained in the record transmitted to this court. We do not find it necessary to address further the matter of consolidation because the order from which this appeal is taken pertains only to the claim of Townsend and the cross-claims of Colbert and Community Action Agency on the one hand and of Downing on the other in case number A-8701065. 1
The facts are not complex. Downing ("appellant") was operating his vehicle southbound on Jefferson Avenue and was waiting, with his left-turn signal in operation, to make a left turn onto Corry Street. Townsend ("plaintiff") was the driver of the Queen City Metro bus stopped westbound on Corry Street in compliance with the electric traffic control signal at the intersection of Jefferson Avenue and Corry Street. Charlotte Colbert was driving a vehicle owned by Community Action Agency northward on Jefferson Avenue in a lane from which she could turn right on Corry Street or proceed through the intersection on Jefferson. The appellant contends that Colbert had her right-turn signal in operation indicating her intention to turn right onto Corry Street. Colbert, denying her turn signal was in operation, proceeded into the intersection and struck the right rear of appellant's vehicle as appellant was completing his left turn onto Corry Street. The impact of Colbert's vehicle with appellant's vehicle caused the appellant's vehicle to spin into contact with the plaintiff's stationary bus.
The common pleas court granted the motion for summary judgment filed by the appellees. In the entry, the lower court noted that the motion for summary judgment was directed to the complaint of Townsend and the crossclaim of the co-defendant Downing in "case no. A-8701065, there being no counterclaim filed by defendant Steve Downing in case no. A-8700658." The court further found "as a matter of law, that Charlotte Colbert and The Community Action Agency were not negligent, contributorily negligent nor a proximate cause of the accident on February 12, 1985." The entry also contained the Civ.R. 54(B) language of finality and this appeal ensued by Steven M. Downing filing a notice of appeal in the case numbered A-8701065 on the docket of the trial court. 2
The only matters contained in the record transmitted to this court on appeal and which, pursuant to Civ.R. 56(C), could have been considered by the trial court in ruling on the motion for summary judgment are the pleadings and the deposition of Steven M. Downing taken as on cross-examination. The pleadings reflect a dispute concerning the operation of the right-turn signal on appellees' vehicle. The deposition of appellant contains his sworn statement that Colbert had her right-turn signal in operation. Colbert did not file any controverting material in support of her motion for summary judgment even though appellant, as the party against whom the motion was interposed, was entitled to have the evidence construed most strongly in his favor. Civ.R. 56(C). Nevertheless, the issue of the operation...
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