Opinion
Decided January 18, 1932.
Negligence — Proximate cause a jury question — Truck driven from driveway collided with automobile approaching in street — Automobile driver's negligence not imputed to guest, when — Charge to jury on measure of damages, not erroneous, when — Erroneous charge on excessive speed, favorable to complaining party.
1. Whether driving of truck from driveway at speed exceeding that permitted by ordinance constituted negligence proximately causing injuries of automobile occupant held for jury.
2. Negligence, if any, of automobile driver could not be imputed to occupant not responsible for driver's acts.
3. Damage instruction in personal injury action held not to require reversal.
4. Where automobile occupant alleged that defendant's truck was driven at speed greater than four miles per hour, court's erroneous statement that occupant charged that truck was driven at speed greater than 35 miles per hour held error prejudicial to occupant of which truck owner could not complain.
ERROR: Court of Appeals for Hamilton county.
Messrs. Dolle, O'Donnell Cash, for plaintiffs in error.
Messrs. Merland, O'Meara, Santen Willging, for defendant in error.
This case is presented to this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered for the plaintiff, Loretta White.
The plaintiff was a passenger in an automobile driven by her husband, and received injuries as a result of a collision of such automobile with a large truck owned and operated by the defendant American Security Trust Company.
The petition alleges negligence in the operation of the truck, in that the same at about 3:30 a.m., November 3, 1929, was recklessly, carelessly, and suddenly driven from the sidewalk northwardly across Eastern avenue, which runs in a general east and west direction in the city of Cincinnati, and in a manner contrary to an ordinance of such city which provides as follows:
"Sec. 74-55. It shall be unlawful for any vehicle to emerge from or enter into any alley, stable, garage, area-way, or building abutting upon any street, at a speed greater than four miles per hour."
The petition alleges that defendant did not have the truck under control. It is also alleged that the defendant, with the exercise of reasonable diligence, could have seen that in so driving the truck would collide with the automobile approaching from the west.
The answer denies negligence, and alleges that the driver of the automobile was the servant of the plaintiff, that the automobile was driven at a high and unreasonable rate of speed, and that the carelessness of the driver was the sole cause of the collision and injuries to plaintiff.
There is evidence that at the time and place mentioned in the petition the husband of the plaintiff was driving the automobile westwardly on Eastern avenue at a high speed; that the night was dark and foggy and the street was wet and slippery; that at the place where the collision occurred the street bends, and that the truck was hidden from the view of the driver until he was very close to the truck; that the truck was driven northwardly out of a driveway on the south side of Eastern avenue directly across such street at a moderate rate of speed, although there is evidence that it was faster than that permitted by the ordinance above quoted, which was introduced in evidence. The truck was of a dark color, and no lights were visible from the side from which the automobile approached. At the time of the collision, the truck was completely out in the street, and, being some 14 feet long, occupied a considerable portion of the 35-foot highway; the clear space at front and rear being about equal.
There is no evidence that the driver of the automobile was the servant or under the control of the plaintiff, or that she was in any way negligent.
On the other hand, it is claimed that the defendant was not negligent, and that the negligence of the driver of the automobile was the sole and proximate cause of the injuries incurred by plaintiff. The record does not support this contention, there being evidence that the truck was driven directly across the street, the vehicle being poorly lighted and obscure, even though there was evidence that an employee upon the truck waved a flash-light from the rear of the truck when he saw the collision imminent. The truck being so operated at a bend in the street, around which traffic might be expected at any moment, without any one being placed at a sufficient distance to warn oncoming vehicles, taken into consideration with the foggy night, the wet street, and the fact that the truck was allowed to occupy a large portion of the street, at right angles to the curbs, presented a clear question for the jury to determine as to whether such conduct of the employees of defendant constituted negligence which was the proximate cause of the injuries of plaintiff, and the finding of the jury cannot be disturbed, even though it be admitted that the driver of the automobile was negligent, since such negligence cannot be imputed to plaintiff, who was in no way responsible for the driver's acts and was herself free from any negligence.
The charge of the court is criticized, in that the court stated: "You will deal with both parties as you would expect to be dealt with under like circumstances and will allow the plaintiff such sum as damages, if any you find to be due her, as you find has been shown by the evidence, this amount and no more and no less."
While the statement cannot be approved in its entirety, the court, taking the charge as a whole, clearly stated the rules governing the consideration by the jury of the question of damages, and we are unable to find that the objectionable language constituted such error prejudicial to defendant as to require a reversal of the judgment.
In stating the issues, the court stated that plaintiff charged defendant with having driven its truck off of the sidewalk at a speed greater than 35 miles an hour, when the allegation was that the truck was driven at a speed greater than 4 miles per hour. As the court followed such erroneous statement immediately with the charge that the burden of proof was upon plaintiff to prove all her charges of negligence by the preponderance of the evidence, and there was no evidence of a speed on the part of the truck greater than 8 miles an hour, such erroneous statement was prejudicial to plaintiff rather than to defendant, especially as the court had previously stated the correct allegation of plaintiff.
It is also urged that the court merely read the pleadings and did not state the issues. We do not find this contention substantiated by a reading of the charge, which discloses that, while the court did read the pleadings, it further fully stated the issues presented by them in detail to the jury.
We find no error in the record or judgment prejudicial to the plaintiff in error, and the judgment of the court of common pleas will be affirmed.
Judgment affirmed.
HAMILTON and CUSHING, JJ., concur.