Wheaton v. Conkle

• Decision Date: 14 May 1937
• Citation: 57 Ohio App. 373,14 N.E.2d 363
• Parties: WHEATON v. CONKLE.
• Court: Ohio Court of Appeals

14 N.E.2d 363

57 Ohio App. 373

WHEATON v. CONKLE.

Court of Appeals of Ohio, Fifth District, Holmes.

May 14, 1937

Syllabus by the Court.

1. Where plaintiff's counsel, in cross-examining a witness as to written state ments offered in evidence, which statements have been denied in part, in that they do not contain the true statement made, in response to the question as to who obtained the statements, elicits the answer, 'an insurance man,' and where other reference to insurance is not anticipated by counsel for plaintiff, and the court instructs the jury to disregard the references to insurance such references do not constitute error.

2. Where the decedent, a boy fifteen years of age, after alighting from a school bus, proceeding to the rear of it and there, while crossing the road, having first looked down the road in both directions after emerging from behind the bus is struck by a passing automobile, the question of decedent's contributory negligence under the provisions of section 6310-36, General Code, is for the jury.

3. In such a case it is not error for the court, after instructing the jury as to section 6310-36, General Code, which provides that pedestrians shall look in both directions before entering upon a public road or highway, to further charge the jury that the minor decedent was bound to use only such care as the ordinary child of his age and experience would use under the same circumstances.

Wilkin, Fisher & Limbach, of New Philadelphia, for appellant.

Cary, Estill & Kuhn, of Millersburg, for appellee.

LEMERT Judge.

This is an action brought by plaintiff, Weldon Wheaton, as administrator, for the wrongful and accidental death of his son, Anson Wheaton. Anson Wheaton was a boy fifteen years of age, who lived with his father and mother on a farm about a mile west of the village of Millersburg, and who was at the time of the accident a student in the Millersburg High School. He entered a school bus at his home, driven by one Clarence Bell, and regularly operated for the transportation of school children, including the decedent, by the Millersburg Board of Education.

The school bus was large, painted light orange in color, approximately eight feet in width, and on both the front and rear of it were large letters designating it as a school bus.

The accident happened about 8:30 a. m., on September 11, 1935. At that time the Holmes County Agricultural Fair was in progress on the north side of a macadam highway, from which there were two entrances to the fair ground. About midway between the two entrances there was a bridge. The macadam road at the point of the accident is seventeen feet wide, and the distance between the fences on either side of the road is about twenty-seven feet.

The school bus was traveling on this highway with a load of grade and high school pupils, and after taking on the decedent, Anson Wheaton, proceeded in an easterly direction toward Millersburg. As the driver came to the west entrance of the fair ground, he slowed down his bus gradually and came to a complete stop, placed his bus in neutral gear, set the emergency brake, and opened the door on the right side of the school bus to discharge Anson Wheaton.

The decedent stepped down from the bus, hurriedly passed along the right side thereof, thence back of it, and was almost across the north side of the highway in line with the west entrance to the fair ground when he was hit by a Dodge automobile which was being operated by the defendant, Darrel Conkle, and was traveling in a westerly direction. The radiator on the Dodge car was crushed in, the emblem on the radiator broken off, and the glass of the right front headlight broken.

The evidence clearly shows that the defendant, Darrel Conkle, was driving his automobile from forty-five to fifty miles per hour as he approached the school bus, and that he did not slow down until he applied his brakes opposite the school bus; that the skidding of his wheels, evidenced by burned rubber marks on the highway extending from that point a distance of forty-three feet, made a loud noise; and that Anson Wheaton's body lay approximately six feet beyond the front of the Conkle car when it came to a stop. The distance from where the skid marks started to where Anson Wheaton's body lay after the accident was sixty-one feet.

The record disloses, by Conkle's own testimony, that he looked down in his car and toward the fair ground as he passed the main entrance, waved at the gateman stationed there, and started to turn in, and that between the main entrance and the bridge he saw the school bus going slowly a short distance west of him; and that he recognized Paul Uhl, working on the fair ground, blew his horn and tried to attract his attention. He testified that as he started to pass the school bus he waved his hand at Clarence Bell, the driver, an instant before driving his car into Anson Wheaton.

The record discloses that the school bus was in plain view from the first time he saw it, his vision being perfectly clear; that he never saw the school bus stop; never saw the door open; and never saw any one get out of the school bus.

Eyewitnesses to the accident testified that they saw Anson Wheaton pass around the rear end of the bus, and that as he came around the school bus onto the highway he looked to the right toward Millersburg, and then to the left toward his home, and was turning his head to the right again at the instant that he was hit by the Conkle car.

There are several claimed grounds of error presented by counsel for the appellant, and we shall refer to them in the order in which they were presented in oral argument.

The claim is made that counsel for plaintiff below injected the question of insurance into the case. We note that the testimony of one Clarence Bell--such testimony having reference to Conkle's statement at the doctor's office immediately after the accident, which included a reference to his carrying insurance, together with other matters, was not anticipated by counsel for the plaintiff. The record discloses that there were other witnesses present with Conkle at the doctor's office. A careful examination of the record discloses that counsel for plaintiff below had not discussed with Bell any matters dealing with insurance prior to his testifying, and any claimed intention of counsel to so inject insurance into the case is not borne out by the record. There was no objection made at the time by defendant's counsel to this matter or to the answer as made.

We note that the matter of insurance came into the record in the cross-examination of Agnes Single. It was disclosed at the trial of this cause that a representative of the insurance company and Mr. Conkle went together and obtained a number of statements from the children in the school busses. The evidence shows that the insurance company's representative, Mr. Huggard, asked the questions and wrote out the statements and then had the children sign them. The statements were not witnessed and did not show who was present when taken. Mr. Huggard was not present at the trial, and could not be inquired of as to the manner in which the statements were made. The children denied that the statements contained their true statements at the time, and Conkle never testified as to the manner in which they were obtained.

With these facts in mind, we may now consider the objection of counsel for defendant.

Counsel for defendant inquired of Agnes Single as to her statement, and always referred to only Mr. Conkle being present when the statement was made. No mention was made of Mr. Huggard's presence. Then we note that reference was made to two persons there at the time, and counsel for plaintiff properly inquired as to who was with Mr. Conkle at the time the statements were made, and she replied: 'An insurance man.' Counsel for the plaintiff had closed his direct and redirect examination before this matter developed. It is claimed on behalf of the defendant below that cross-examination as to the identity of this man, who wrote the statements and which they had offered for the purpose of contradicting plaintiff's witnesses, had no probative value, and was not relevant for that purpose. If that be true, then any insurance agent could write out testimony, have witnesses sign the same, and, failing to appear in court, would have absolute security from identification or from revealing any interest that the one writing the statements might have; a condition that no other person doing the same thing would have. The court is keeping in mind that the defendant had placed in evidence those signed statements of these witnesses, written by the insurance agent, and that the truth of the statements in part was denied by the witnesses. In each instance, the record discloses that the court, when requested, ruled out all answers in which insurance was involved and cautioned the jury to disregard the same. In the general charge to the jury the court also fully covered this matter. If this case were to be retried and the defendant were to make use of the statements written by the insurance agent, we fail to see how the record would be less free from these claimed objections than the present record. We find no error in this regard.

The next proposition presented is that the court committed error in refusing to grant a directed verdict at the close of plaintiff's case on the ground of contributory negligence. This claim is made under the provisions of section 6310-36, General Code, which...