Weldon Tool Co. v. Kelley
| Decision Date | 03 November 1947 |
| Citation | 81 Ohio App. 427,76 N.E.2d 629 |
| Parties | WELDON TOOL CO. v. KELLEY. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
Where a driver of an automobiel is suddenly stricken by illness which he had no reason to anticipate, whereby he is rendered unconscious, or 'black outs' and as a proximate result loses control of the automobile and injury is thereby caused to another, such circumstances do not establish actionable negligence against the driver.
T Edward McNamara, of Cleveland, for plaintiff appellant.
Davis & Young, of Cleveland (Robert C. Horrigan, of Cleveland of counsel), for defendant appellee.
This action comes to this court as an appeal on questions of law from a judgment for the defendant entered in the Municipal Court of Cleveland.
The plaintiff was the owner of a Chevrolet truck which on the date of the accident (October 21, 1944) was parked on the north curb of Payne Avenue just east of East 21st Street in the City of Cleveland. The defendant was then and there driving his automobile in a southerly direction on East 21st Street. When he came to the intersection of Payne Avenue with East 21st Street he brought his automobile to a stop because a police traffic signal light then in operation at said intersection displayed the red or 'stop' sign for East 21st Street traffic and green or 'go' for Payne Avenue traffic. There was one automobile in front of the defendant as he stopped at the intersection. When the traffic light changed so that East 21st Street traffic could proceed through the intersection, the defendant put his automobile in gear and started forward with other traffic. Just before he started he testified, 'I had a pain once or twice suddenly and I put my hand against my heart.' He further testified on cross-examination, when called by the plaintiff:
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And in testifying in his defense, the defendant said in part:
'Q. And you stated that while waiting for the traffic light to turn green you had a couple of sharp pains in the region of your heart? A. I had two severe pains in my left----
'Q. When the light changed to green did you start up? A. Yes, sir. One car went west and mine turned east.
'Q. You turned to the east? That would be to your left? A. To my left.
'Q. And after you had started to make the left turn did you get any more pains? A. I got three or four or five, very sharp, and all of a sudden I started to blur, so I all of a sudden was kind of blurred.
'Q. And from the time that that you first got this blurry sensation, until the impact occurred, do you have any idea as to how much time elapsed? A. It was maybe about a half a minute's time, because I made a sharp turn to get into Sharp's gas station to prevent--but before I got there I heard the car crash and I couldn't see how--I couldn't see the driveway. I couldn't see.
'Q. You mean you had blanked out before you had hit this automobile? A. Blacked out completely.
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'Q. Were you conscious at the time you hit this other automobile? A. Yes, I was.
'Q. Did you see the other automobile before the impact occurred? A. I didn't see nothing. I know that I hit some kind of an object but what it was I couldn't tell you.
There is no other testimony in the record as to his physical and mental condition at the time of the accident, and there is no evidence that he had ever before been subject to a heart attack or 'black out.'
The plaintiff sets forth six claims of error, but in its brief says: 'We have assigned six (6) errors, which may be reduced for the purpose of this brief to one; that going to the finding and judgment of the Court.'
We shall confine our consideration of the case, therefore, to the question as to whether or not the judgment is manifestly against the weight of the evidence or contrary to law.
There can be no question but that the defendant's automobile was being operated on the wrong side of Payne Avenue in violation of law when it struck the plaintiff's truck and therefore unless such conduct can be otherwise excused he would be guilty of negligence per se. As a part of the plaintiff's case, the defendant was called for cross-examination and when so called, testified that at the time of the accident he had 'blacked out', was unable because of a sudden physical ailment to see or control his automobile. And there is no other evidence, medical or otherwise, which in any way challenged the truth of his statement.
In the case of Satterthwaite v. Morgan, 141 Ohio St. 447, 48 N.E.2d 653, paragraph 1 of the syllabus provides: 'In directing a verdict for the plaintiff, the trial court must assume that all the facts claimed by way of defense and supported by evidence, are true, and must also find that they do not constitute a valid defense to the case made by the plaintiff.' Kormos v. Cleveland Retail Credit Men's Assoc., 131 Ohio St. 471, 3 N.E.2d 427.
The defendant to excuse his conduct in driving on the wrong side of Payne Avenue and striking the plaintiff's truck, when called by the plaintiff for cross-examination under the statute, and as above set forth, testified that at the time of the accident, because of a sudden physical ailment he 'blacked out' and lost control of his car. This evidence was not challenged by any other testimony. If the court finds, therefore, that such was the fact the plaintiff's own evidence would fail to establish one of the essential elements of its case, that is, that the defendant was negligent.
In the Blashfield Cyclopedia of Automobile Law & Practice, Volume 1, § 656, the rule is stated as follows: ...
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