Wolfe v. Baskin, No. 27967.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtWILLIAMS
Citation28 N.E.2d 629,137 Ohio St. 284
Decision Date24 July 1940
Docket NumberNo. 27967.
PartiesWOLFE v. BASKIN et al.

137 Ohio St. 284
28 N.E.2d 629

WOLFE
v.
BASKIN et al.

No. 27967.

Supreme Court of Ohio.

July 24, 1940.


Appeal from Court of Appeals, Cuyahoga County.

Action by Harry Wolfe, administrator of the estate of Eva Wolfe, deceased, against Mary Baskin and Ben Baskin to recover for the death of Eva Wolfe. From a judgment in favor of the defendants, the plaintiff appealed to the Court of Appeals. The Court of Appeals affirmed the judgment, and the cause is in the Supreme Court for review by reason of the allowance of a motion to certify the record.-[Editorial Statement.]

Judgment reversed, and cause remanded for a new trial.

[28 N.E.2d 630]


Syllabus by the Court.

1. Where in an action for wrongful death different minds may from the evidence reach different conclusions on the issues of defendant's negligence, proximate cause and contributory negligence of the decedent, all issues are for the determination of the jury under proper instructions of the court.

2. The arrest or non-arrest of a party unless a part of the res gestae is not admissible in evidence on the issue of negligence.

3. A steadily burning red traffic light placed at a street intersection in a municipality by the police authorities thereof although without specific authorization by ordinance is a lawful signal or sign within the meaning of Section 6310-35, General Code.

4. A failure to stop in obedience to such a traffic light constitutes negligence per se

[28 N.E.2d 631]

whether the light has a visible legend thereon signifying ‘stop’ or no legend whatever.

5. It is erroneous and misleading for the court to charge the jury in the language of a statute without explanation of its meaning where interpretation by the court is essential to show the law's application to the issues.

6. A steadily burning red traffic light at a street intersection is a condition to be considered in determining whether speed at or near the intersection is reasonable or proper within the meaning of Section 12603, General Code.

7. Error respecting the issue of defendant's negligence is not prejudicial to plaintiff in the event of a general verdict for the defendant accompanied by a finding of the jury in answer to a special interrogatory that the defendant was guilty of negligence.

8. In the absence of an ordinance regulating the conduct of pedestrians upon the street, the existence of a traffic light and its character are proper elements to be considered in determining whether a pedestrian, in crossing the street at or near the intersection where the light is located, is guilty of negligence.

9. The rights of pedestrians and drivers of motor vehicles are equal upon the highway, recognition being given to the difference in mode of locomotion.

10. A pedestrian, who looks in both directions as he starts across a street and finds the way apparently clear, is not guilty of contributory negligence as a matter of law merely because he fails to look again.

11. Under Section 6310-36, General Code, a pedestrian who steps into or upon a public street without looking in both directions to see what is approaching is guilty of negligence per se.

12. A charge to the effect that it is the duty of a pedestrian in crossing a street to use his faculties for his own safety at all times and to use them when such use would be effective goes beyond the common law rule and is erroneous.

13. Where in an action for negligence the jury returns a general verdict for the defendant and by answers to special interrogatories finds that the defendant was guilty of negligence and that such negligence was not the proximate cause of decedent's injury and death, but makes no finding on the issue of contributory negligence, erroneous instructions to the jury on contributory negligence are not to be deemed nonprejudicial by reason of the jury's special findings.


Eva Wolfe, a woman fifty-five years of age, was killed about 10 o'clock on the evening of October 31, 1936, while crossing East 130th street at or a short distance north of its intersection with Abell avenue in the city of Cleveland, Ohio, by being struck by an automobile. Harry Wolfe, administrator of the estate of the decedent, on February 6, 1937, brought an action in the Court of Common Pleas of Cuyahoga county, Ohio, against the defendants, Ben Baskin and Mary Baskin, to recover for the wrongful death of the decedent. On trial the jury returned a verdict in favor of the defendants.

After judgment was entered an appeal was taken to the Court of Appeals and on hearing that court affirmed the judgment. This court has allowed a motion to certify the record and the cause is here for review.

Harrison & Marshman and Victor Cohen, all of Cleveland, for appellant.

Cull & Fuller, of Cleveland, for appellees.


WILLIAMS, Judge.

Several questions are presented by the record and they will be discussed in order.

The question that should be considered first is one made by the defendants. They maintain that the plaintiff cannot be prejudiced by any error in the record for the reason that the evidence, in any event, warrants a judgment in favor of the defendants as a matter of law.

The plaintiff in his petition alleged that the defendants were negligent as to speed,

[28 N.E.2d 632]

keeping lookout ahead, guiding the automobile and keeping it under control, and in failing to sound the horn, and to stop in obedience to the traffic light.

What was the evidence bearing on the issues of negligence, proximate cause and contributory negligence?

On the evening of October 31, 1936, which was somewhat rainy, the decedent alighted from a bus southbound on East 130th street, as it stopped to let off passengers at the northwest corner of East 130th street and Abell avenue. Abell avenue crosses East 130th street at right angles, but the intersection is not regular. If the south curb line of Abell avenue west of East 130th street is extended to the east, such extended line would be only about 6 feet south of the north curb line of Abell avenue east of East 130th street. There was a red traffic light in the center of the intersection, suspended above the pavement, about midway between the southwest and northeast corners. This light burned steadily and according to some of the evidence, had the word ‘stop’ on the glass on its four sides at the time of the accident. It was stipulated by counsel in the record that installation of the light was made ‘by the city of Cleveland, by the police department.’

As the decedent alighted from the bus, she proceeded to cross to the east side of East 130th street and when she had reached a point somewhat past the center of the street she was struck by the autombile which was owned by the defendant Mary Baskin, and driven by her husband, Ben Baskin, both of them being seated in the front seat.

There is a dispute in the evidence as to the exact point at which the decedent passed to the rear of the bus and crossed the street. One witness testified that the rear door when decedent got out was near the bus stop sign, which, according to the map, was located on the side of 130th street about 5 feet from the north side of the sidewalk running east and west on the north side of Abell avenue. There is also a dispute as to whether decedent was running or walking as she crossed the street, and as to whether she crossed straight or diagonally.

At this point East 130th street is 26 feet in width and has a brick pavement. There are no crosswalks constructed in or marked out on the pavement. Abell avenue is 30 feet in width. According to some of the evidence, decedent, when she was struck, was only 20 feet north of the caution light. In this position she would be at or near the point where the north crosswalk on East 130th street would be if it ran from the sidewalk at the northwest corner of the intersection to the sidewalk at the northeast corner. There is, however, much conflict in the evidence as to where the decedent was with reference to the north crosswalk location when struck.

Defendants were approaching from the south, and there is a dispute in the evidence as to whether the automobile in which they were riding slowed down a little, slowed down to 5 miles an hour, stopped or practically stopped for the caution light. The automobile struck the decedent with great force. The impact bent the headlight, broke the glass in it and deeply dented the left front fender, which was made of steel. There is evidence that the brakes screeched and that the automobile after striking decedent went on for a distance of 45 to 50 feet, turned nearly around in the street and carried her on the fender for some distance. The defendant Ben Baskin testified that the decedent, when he first saw her, was 10 to 15 feet from the bus and 10 feet in front of the automobile...

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33 practice notes
  • Cox v. Hennis Freight Lines, No. 240
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • August 22, 1952
    ...5 S.E.2d 311; King v. Pope, 202 N.C. 554, 163 S.E. 447; Wolfe v. Independent Coach Line, 198 N.C. 140, 150 S.E. 876; Wolfe v. Baskin, 137 Ohio St. 284, 28 N.E.2d 629. The mere fact that the operator of a motor vehicle may have a green light facing him as he approaches and enters an intersec......
  • Malcom v. Dempsey
    • United States
    • Superior Court of Delaware
    • September 7, 1962
    ...is negligence per se notwithstanding the lack of an authorizing statute or ordinance or administrative resolution. Wolfe v. Baskin, 137 Ohio St. 284, 28 N.E.2d 629 (1940); Stout v. Ellinger, 154 Ohio St. 418, 96 N.E.2d 249 (1951); Sams v. Lyons, Ohio App., 146 N.E.2d 131 (1956). These cases......
  • Hickory Grove Investors, Ltd. v. Jackson, No. 08AP-514.
    • United States
    • United States Court of Appeals (Ohio)
    • December 9, 2008
    ...App.3d 770, 2003-Ohio-5340, 798 N.E.2d 1141, ¶ 17. {¶ 16} In the case at bar, defendants primarily rely upon Wolfe v. Baskin (1940), 137 Ohio St. 284, 18 O.O. 45, 28 N.E.2d 629, and its progeny to argue that the trial court erred in admitting Farrenkopf's affidavit testimony. In Wolfe, the ......
  • Theresa Eve and Brian Eve v. Robert E. Johnson, 98-LW-3778
    • United States
    • United States Court of Appeals (Ohio)
    • October 30, 1998
    ...was arrested or issued a citation for the underlying traffic accident is inadmissible in a negligence action. Wolfe v. Baskin (1940), 137 Ohio St. 284, 28 N.E.2d 629, paragraph two of the syllabus; Barge v. House (1952), 94 Ohio App. 515, 110 N.E.2d 425; Valleau v. Lynn (Mar. 6, 1998), Hami......
  • Request a trial to view additional results
33 cases
  • Cox v. Hennis Freight Lines, No. 240
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • August 22, 1952
    ...5 S.E.2d 311; King v. Pope, 202 N.C. 554, 163 S.E. 447; Wolfe v. Independent Coach Line, 198 N.C. 140, 150 S.E. 876; Wolfe v. Baskin, 137 Ohio St. 284, 28 N.E.2d 629. The mere fact that the operator of a motor vehicle may have a green light facing him as he approaches and enters an intersec......
  • Malcom v. Dempsey
    • United States
    • Superior Court of Delaware
    • September 7, 1962
    ...is negligence per se notwithstanding the lack of an authorizing statute or ordinance or administrative resolution. Wolfe v. Baskin, 137 Ohio St. 284, 28 N.E.2d 629 (1940); Stout v. Ellinger, 154 Ohio St. 418, 96 N.E.2d 249 (1951); Sams v. Lyons, Ohio App., 146 N.E.2d 131 (1956). These cases......
  • Hickory Grove Investors, Ltd. v. Jackson, No. 08AP-514.
    • United States
    • United States Court of Appeals (Ohio)
    • December 9, 2008
    ...App.3d 770, 2003-Ohio-5340, 798 N.E.2d 1141, ¶ 17. {¶ 16} In the case at bar, defendants primarily rely upon Wolfe v. Baskin (1940), 137 Ohio St. 284, 18 O.O. 45, 28 N.E.2d 629, and its progeny to argue that the trial court erred in admitting Farrenkopf's affidavit testimony. In Wolfe, the ......
  • Theresa Eve and Brian Eve v. Robert E. Johnson, 98-LW-3778
    • United States
    • United States Court of Appeals (Ohio)
    • October 30, 1998
    ...was arrested or issued a citation for the underlying traffic accident is inadmissible in a negligence action. Wolfe v. Baskin (1940), 137 Ohio St. 284, 28 N.E.2d 629, paragraph two of the syllabus; Barge v. House (1952), 94 Ohio App. 515, 110 N.E.2d 425; Valleau v. Lynn (Mar. 6, 1998), Hami......
  • Request a trial to view additional results

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