Opinion
September 28, 1945.
October 30, 1945.
Conflict of laws — Lex loci delictus — Negligence — Automobiles — Intersection — Through highways — Right of way — Law of Ohio.
In an action for damages arising out of a motor vehicle collision in Ohio, in which it appeared that the charge was erroneous under the applicable Ohio law, it was Held that a new trial was properly granted.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 54, March T., 1945, from order of C. P., Butler Co., Sept. T., 1943, No. A.D. 12, in case of Builders Supply Company v. P. J. McCabe. Order affirmed.
Trespass.
The facts are stated in the opinion, by PURVIS, P. J., of the court below as follows:
On the afternoon of July 2, 1941, there was a motor vehicle accident at the intersection of Arlington Boulevard with Wilbeth Street in the City of Akron, Ohio, between the truck of the plaintiff, Builders Supply Company, operated by Joe Zetts and a truck operated by Joe Pietropaolo.
Arlington Boulevard is a through street running North and South; Wilbeth Street, known as a dead end street runs East and West. At the intersection is a blinker light, continuously flashing an amber or yellow light on Arlington Boulevard and a red light on Wilbeth Street.
At the time of the accident the Builders Supply truck was proceeding northward; the truck operated by Joe Pietropaolo was proceeding southward on Arlington Boulevard.
As a result of the accident Joe Pietropaolo brought his action of trespass against the Builders Supply Company and recovered a verdict of $3,000.00.
The Builders Supply Company brought its action of trespass against P. J. McCabe, a resident of Butler County, alleging that the accident and resulting damage was wholly the result of the negligence of the defendant and seeks to recover not only the amount of the verdict against it, rendered in Ohio, but also certain damages resulting from damage to its own truck.
The trial of the case here resulted in a verdict for the defendant P. J. McCabe and the matter is now before us on a motion for a new trial.
Reasons assigned for a new trial are —
First. The Court erred in its instruction to the Jury as to what constitutes contributory negligence and the result thereof.
Second. That the Court erred in its instruction to the Jury as to the rights and duty of the plaintiff when its truck approached the intersection, the point of accident.
As to the first reason for a new trial we are of the opinion we correctly instructed the Jury as what constituted contributory negligence (Page 6). While later in the charge we may not have been as explicit as we should have been, the plaintiff was not prejudiced thereby, but inasmuch as a new trial should be granted for the second assigned reason we need not discuss it further.
The accident complained of happened in the State of Ohio and of course, the law of that state controls this case.
In our charge we said, inter alia — "so when Mr. McCabe approached this intersection, going eastward, and when he came to the intersection the vehicles approaching on Arlington Boulevard, from the right had the right of way. Now the right of way on a public highway is not an absolute right. He could not just continue on, irrespective of what is about to happen but he is still bound. In the first place everybody, both the plaintiff and this defendant, were required under the law to slow down as they approach any intersection, because both of them were obliged to recognize the possibility of others wanting to use this highway and the responsibility rests equally with them; so both of them were required to slow down. They are also bound to get their motor vehicles under control, because of this danger at an intersection they must get their motor vehicle under control so that in the event that something does turn up suddenly, they can stop their motor vehicle immediately. And they are also bound to look, and looking, the law imposes on them the duty to see, because it would be an unfair thing to require him to look and just because he looked and did not see, the law imposes on him the duty to look and imposes that they must see what is visible. So as these motor vehicles, this truck of the plaintiff and this car of the defendant, were bound to observe these rules which I have just told you."
We are convinced this instruction was erroneous under the law of Ohio.
In the case of Morris v. Bloomgreen, 127 Ohio State 147, the Court said: "A driver on a through highway may claim the preference so long as he is driving in a lawful manner. However, so long as such driver proceeds lawfully at a speed that is reasonable and proper, and without violation of, but in obedience to law or ordinance, he is entitled to maintain his right of way, his statutory right to proceed uninterruptedly, while approaching and crossing the intersection."
"Where a driver approaching a street intersection on the left is bound to give the driver approaching on the right, the right of way, if the latter is proceeding at a reasonable speed the former cannot cross the other's path without incurring liability for damages resulting from a collision." Coshun v. Mansean, 60 O. A. 249.
"Where two automobiles approach an intersection of their paths at the same time or about the same time, the one on the right, if proceeding toward the intersection lawfully, had the right of way, which allows it to proceed uninterruptedly in a lawful manner in the direction in which it is moving, in preference to another vehicle approaching from a different direction into its path, which must yield." Williams v. Judd, 23 O. L. A. 450.
Defendant appealed.
Samuel G. Wagner, with him Wagner Wagner, George Y. Meyer and John L. Wilson, for appellant.
Lee C. McCandless, with him Marshall McCandless and James E. Marshall, for appellee.
Argued September 28, 1945.
The order granting a new trial is affirmed on the opinion of the court below.