Trentman v. Cox

• Citation: 160 N.E. 715,118 Ohio St. 247
• Decision Date: 14 March 1928
• Docket Number: 20702
• Parties: Trentman v. Cox.
• Court: Ohio Supreme Court

160 N.E. 715

118 Ohio St. 247

Trentman v. Cox.

No. 20702

Supreme Court of Ohio

March 14, 1928

Negligence - Contributory negligence a question for jury - Pedestrian's misjudging oncoming automobile's speed and not looking again when crossing street - Recovery not defeated by failure to anticipate automobile driver's negligence - Witnesses' knowledge of unlawful automobile speed not imputed to plaintiff, when.

1. In an action for personal injury alleged to have been caused by a pedestrian being struck by an automobile upon a public highway, when attempting to cross a viaduct at a point where the public usually crossed in order to board the traction cars, the question whether the plaintiff, seeing an automobile approaching from 65 to 80 feet away at an unlawful rate of speed, and misjudging its speed and crossing without again looking toward the automobile, was guilty of contributory negligence, was properly submitted to the jury.

2. The failure of a pedestrian to anticipate negligence on the part of the driver of the automobile does not defeat an action for the injury sustained.

3. The knowledge of the plaintiff's witnesses as such as to the speed of an oncoming automobile, not communicated by such witnesses to the plaintiff, is not imputed to the plaintiff and does not charge him with knowledge of such speed.

This case arises as an error proceeding to a judgment of the Court of Appeals of Hamilton county, which reversed a judgment rendered in favor of the defendant by the Court of Common Pleas of that county in a personal injury action, arising out of the fact that a pedestrian upon a public highway was struck by an automobile. The judgment was entered upon a verdict directed by the trial court at the close of the plaintiff's case on the ground that the plaintiff's testimony raised a presumption of negligence directly contributing to the injury.

The petition alleged that the driver of the automobile was operating the car at the time of the accident at an illegal rate of speed, and that he failed to keep a proper lookout for pedestrians crossing the viaduct, failed to keep his machine under control, and failed, after he saw, or in the exercise of ordinary care should have seen, the plaintiff, to stop his machine in time to avoid the injury. The answer admitted the occurrence of the accident, denied all other allegations, and in a second defense alleged sole negligence by the plaintiff, and the violation of an ordinance of the city of Cincinnati requiring pedestrians to cross highways at regular crossings and at right angles thereto. The reply denied the allegations of the second defense of the answer.

The case comes into this court upon the allowance of motion to certify the record.

Mr Clarence M. Smith and Mr. August A. Rendigs, Jr., for plaintiff in error.

Mr Alfred Pfau, and Messrs. Bates, Stewart & Skirvin, for defendant in error.

ALLEN J.

In considering whether the pedestrian, Addison D. Cox, plaintiff below, was guilty of contributory negligence as a matter of law, all facts in the record, or inferences to be drawn therefrom, must be resolved in his favor. Gibbs v. Village of Girard, 88 Ohio St. 34, 40, 102 N. E., 299; Ellis & Morton v Ohio Life Ins. & Trust Co., 4 Ohio St. 628, 628, 64 Am.Dec. 610; McDonald v. City of Pittsburgh, 278 Pa. 485, 123 A. 467.

Examining the evidence with this rule in mind we find that the record discloses that at the time of the accident the pedestrian was crossing the Eighth street viaduct in Cincinnati, Ohio, from north to south, at a point in the viaduct where certain steps lead up from Eighth street to the top of the viaduct, at the place generally used by pedestrians for crossing the viaduct to board street cars. Approximately twenty-five feet west of the landing of the steps, on each side of the viaduct, there is a pole which indicates the stopping place of trolley cars traveling east and west, respectively. The pedestrian was hit by the automobile as the automobile was traveling west and as the pedestrian was crossing from north to south, from the steps leading up to the viaduct, in order to board a street car which had already come to a stop, on the south side of the viaduct. When struck, according to the testimony of one witness, the pedestrian had reached the south rail of the west-bound street car track. According to the plaintiff's own testimony, he had reached perhaps even to the space between the inbound and the outbound track. The testimony of one witness is to the effect that after the accident Cox said that he "tried to beat it across."

The record discloses that the pedestrian looked in both directions before he started across the street. As his testimony states, he "sized up the situation." He was hit by the left front fender of the defendant's automobile. Floyd Breeze, a witness on behalf of the plaintiff, estimated that the speed of the automobile was thirty-five or forty miles an hour. Earl Fenley said:

"Well, it looked as though he was driving somewhere around thirty-five miles is my estimate of how fast he was driving."

The testimony of Addison D. Cox, the plaintiff, was that the car was sixty-five to eighty feet from him when he started across. He said:

"I came up the steps as the train was going past about 15 minutes past 6, and walked up to the landing and usually sized up the situation, rather the traffic, across the street, and picking my way to get across. Well, I got up to the landing, and I sized up the situation, I made a survey of the situation, looking up and down the street, and there was a street car across the street which had come to practically a dead stop, and then I started across as I had picked my way before, as I say, and only done the same thing on this afternoon as I had done before, and I looked down that way [indicating] for traffic coming, and I saw what looked like there was three lights-I didn't count them because I wasn't anticipating anything-and they looked like they were some sixty-five to eighty feet on down that way, and I didn't know would the car stop because I was on the wrong side of the street to flag the car, but I saw it stopped, and I started across to the car, and of course it would be necessary to go around the end to get into the car, and I started in at a fast walk, thinking possibly somebody would get off and I might get on the car, you know. I had gotten to a point somewhere about probably the space between the two tracks, over the south rail of the north- bound [outbound] track, right along in there somewhere, when I was struck."

Cox testified that he could not estimate the speed of the automobile, and that he had walked about sixteen feet-from the north curb to the south rail of the outbound track-before he was struck. The accident occurred at about 6:30 o'clock in the evening, when traffic was heavy upon the viaduct.

It is the contention of the plaintiff in error that Cox was guilty of negligence as a matter of law because he stated upon the trial that when he walked across the street he looked in the direct path that he was going. Plaintiff in error urges that it is the duty of the pedestrian, after leaving a position of safety, to continue to observe, or at Least to look again toward, an automobile known by him to be approaching. No decision from this state is quoted to sustain this position that a pedestrian is guilty of negligence, as a matter of law, if he, after having looked once and plainly seen an automobile sixty-five to eighty...