Weller v. Worstall

• Decision Date: 12 June 1935
• Docket Number: 25159.
• Parties: WELLER v. WORSTALL.
• Court: Ohio Supreme Court

196 N.E. 637

129 Ohio St. 596

WELLER v. WORSTALL.

No. 25159.

Supreme Court of Ohio.

June 12, 1935

Error to Court of Appeals, Muskingum County.

Action by Harry Worstall against Jessie Weller, executrix of the estate of Harry A. Weller, deceased. To review a judgment of the Court of Appeals, affirming a judgment of the court of common pleas for plaintiff, the defendant brings error on allowance of motion to certify.-[Editorial Statement.]

Affirmed.

This action was begun in the court of common pleas of Muskingum county by Harry Worstall against Jessie Weller, executrix of the estate of Harry A. Weller, deceased, to recover damages for injuries and disabilities suffered by plaintiff as the result of an automobile accident occurring on September 23 1932.

The petition alleged that Harry A. Weller was the owner of a Buick coupé, which he was operating on a public highway leading from New Lexington, Perry county, Ohio, to East Fultonham, Muskingum county, Ohio; that plaintiff was a passenger in such automobile; that suddenly and without warning the said Harry A. Weller negligently drove such automobile off of such highway, or he negligently permitted the steering wheel to escape his control, so that the automobile veered to the right side of the road and plunged over a steep embankment; that by reason of such negligent and careless action of the said Harry A. Weller in managing and operating such automobile plaintiff was thrown violently therefrom, sustaining injuries which the petition proceeded to describe.

The answer contained a general denial and set up the defenses of contributory negligence and unavoidable accident.

It was determined by the trial judge that the case was one invoking the doctrine of res ipsa loquitur, and he submitted that question to the jury in the general charge. But he was also careful to instruct them that ‘ the burden [of proof] in the whole case is upon the plaintiff to show by a preponderance of the evidence, that the injury was caused by the negligence of the defendant's decedent’ and that ‘ his negligence was the proximate cause of the plaintiff's injury.’

The jury returned a verdict for the plaintiff in a substantial amount, by a concurrence of all twelve members. Judgment was entered on such verdict, which judgment was subsequently affirmed by the Court of Appeals. Allowance of the motion to certify the record brings the case before the Supreme Court. The cause of action herein having arisen before the enactment of section 6308-6, General Code, commonly called the ‘ guest statute,’ its provisions are not drawn into this controversy.

Defendant's introduction of evidence which, if accepted by jury, would exonerate him from blame does not destroy inference of negligence permitted by proof establishing applicability of res ipsa loquitur doctrine so as to necessitate finding of absence of negligence or require directed verdict for defendant.

Syllabus by the Court .

1. Where plaintiff, in an action to recover damages for personal injuries offers proof that he was a passenger in an automobile being operated at a moderate rate of speed over a considerably used county road, the traveled portion of which was from sixteen to eighteen feet wide, when suddenly such automobile left the road and plunged over an embankment whereby he was injured, the circumstances thereby established are sufficient to permit an inference of negligence on the part of the operator, under the doctrine of res ipsa loquitur, and the trial court commits no error in overruling a motion by a defendant for a directed verdict at the close of plaintiff's case in chief.

2. Such motion, renewed at the close of all the evidence, is properly overruled, the weight of the inference of negligence permitted by plaintiff's proof, as well as the weight of the evidence offered by defendant to explain the occurrence and to sustain the grounds of defense set up in the answer being for the determination of the jury.

Pugh & Van Dervoort and A. A. Porter, all of Zanesville, for plaintiff in error.

Graham & Graham, of Zanesville, for defendant in error.

ZIMMERMAN, Judge.

Counsel for plaintiff in error confine themselves to one ground of error in asking a reversal. It is thus expressed in their brief:

‘ The only contention which we desire to make in this court is that the court erred in his refusal to direct a verdict, first, at the close of the plaintiff's testimony, and again at the close of the entire case. It is our contention that the facts developed in the trial of the case absolutely failed to show any negligence upon the part of Weller and do not bring it within the doctrine of res ipsa loquitur.’

As disclosed by the record, plaintiff introduced evidence to the effect that on September 23, 1932, Harry A. Weller with three guest companions, including plaintiff, was driving his Buick coupé in a north by east direction over a dry county road in Perry county. It was about 5:50 o'clock p. m., and still daylight, when they arrived at a point on said road a mile or so north of New Lexington. A 6 or 7 per cent. grade was there encountered, leading down to a thirty-foot culvert spanning at a slight angle to the road a small stream of water. South of the culvert was a curve in the road of about 2 per cent., which straightened out before the culvert was reached. At the south end of the culvert the automobile left the road and plunged down an almost perpendicular embankment, causing the death of Weller and one of his companions and resulting in injuries to plaintiff and another.

The traveled portion of the road was from sixteen to eighteen feet wide, with a berm on either side. Its base was of flint rock, topped with a thin covering of crushed loose limestone. While rough and containing holes, the road was passable and in constant use. There is nothing in the evidence to show that the automobile left the road on account of roughness or holes in the traveled surface, or because of faulty tires or mechanical difficulties.

Shortly before the disaster, the automobile had been observed proceeding at an estimated speed of thirty-five miles per hour.

Through statutory inhibition, plaintiff was precluded from giving his version of the occurrence, since his suit was against an executrix.

Called as a witness by the defendant was A. L. Gable, a passenger in the ill-fated automobile on its last tragic journey, and one of the two survivors of the accident. The substance of his testimony is that the automobile, traveling about thirty miles per hour, got into ‘ some loose gravel or stone at the side of the road’ ; that Weller made an ‘ effort with the steering wheel to get it back on the road,’ but ‘ the car went into this culvert and into the creek.’ ‘ The road was well grown up with weeds on both sides.’ On cross-examination, Gable admitted he had discussed the accident. The following questions and answers concerning his conversation with two named persons are taken from the record:

‘ Q. And didn't you then and there state this or this in substance ‘ that you didn't know how it happened?’ A. That I didn't know how the accident happened?

‘ Q. Yes? A. Yes, I suppose I did, because I don't.’

There is testimony in the record that along the extreme right or east side of the traveled portion of the road to the south of the culvert there was a ridge of crushed limestone from five to ten inches deep, pushed or formed there over a period of time by the tires of passing automobiles. There is also considerable testimony, some of it conflicting, as to weeds locust sprouts, and other vegetation growing along the sides of the road and tending to obscure the south end of the...