Opinion
Decided February 5, 1931.
Negligence — Contributory negligence bars recovery, when — Charge to jury prejudicial — Plaintiff's negligence proximate cause or contributed thereto in slightest degree — Non-liability if automobile carefully driven, but defective brakes evidence ignored — Instruction upon duty in emergency, prejudicial.
1. Plaintiff's contributory negligence will not bar recovery, unless proximate or direct cause of injury.
2. Instruction authorizing verdict for defendant if plaintiff's negligence "was proximate cause of accident, or contributed thereto in slightest degree," held prejudicial.
3. Instruction authorizing verdict for defendant if defendant were driving his automobile carefully held error and prejudicial as ignoring evidence of negligence in operating automobile with defective brakes.
4. Instruction regarding duty in emergency held prejudicial for stating generally that fact that defendant may have done wrong thing did not in itself indicate negligence, defendant being charged with various acts of negligence, and in addition the language was misleading.
ERROR: Court of Appeals for Lake county.
Mr. John M. Parks, for plaintiff in error.
Mr. L.B. Davenport and Mr. R.M. Ostrander, for defendant in error.
Robert Chapman, a minor 13 years of age, commenced an action in the court of common pleas to recover damages for personal injury resulting to him from a collision between the bicycle which he was riding and an automobile driven by the defendant, David Blackmore. The trial resulted in a verdict and judgment in favor of the defendant, and this proceeding in error is brought to secure a reversal of that judgment.
The collision occurred at or near the intersection of Middle Ridge road and Center road. The plaintiff was traveling south on Center road on his bicycle, following behind a large truck. Whether he was close behind the truck or many feet distant from it is in controversy. The defendant was driving a Dodge automobile north on the same road. Chapman was planning to turn east when he reached the Middle Ridge road, but was struck by the automobile and seriously injured.
Our examination of the evidence convinces us that the judgment is not manifestly against the weight of the evidence.
It is urged as ground for reversal that the trial court erred in giving certain written requests to the jury before argument, and these instructions have had the careful examination of this court.
By the defendant's request No. 1 the jury was instructed that if the plaintiff was negligent in any respect and "such negligence was the proximate cause of the accident or contributed thereto in the slightest degree" a verdict should be returned for the defendant.
Of course, it is fundamental that contributory negligence on the part of the plaintiff will not bar his recovery unless such negligence is a proximate or direct cause of the injury. The rule was announced in Schweinfurth, Admr., v. Cleveland, C., C. St. L. Ry. Co., 60 Ohio St. 215, 54 N.E. 89, and has been followed many times since, particularly in Toledo Railways Light Co. v. Mayers, 93 Ohio St. 304, 112 N.E. 1014; Pennsylvania Rd. Co. v. Rusynik, 117 Ohio St. 530, 159 N.E. 826, 56 A.L.R., 538; Gallup, Admr., v. Toledo Terminal Rd. Co., 26 Ohio App. 447, 160 N.E. 493, and the case of Community Traction Co. v. Jakubec, 38 Ohio App. 73, 175 N.E. 716, decided by the Court of Appeals in Lucas county on January 19, 1931. The latest decision by the Supreme Court is the case of Smith v. Lopa, 123 Ohio St. 213, 174 N.E. 735.
The instruction from which quotation has just been made indicates that this principle of law was appreciated and probably undertaken to be covered; but the instruction is in the alternative form, and justifies a finding that the plaintiff would be barred from recovery if his negligence contributed in the slightest degree to cause the accident. That portion of the instruction should have read so as not to bar him from recovery on the ground of contributory negligence unless it proximately or directly contributed to the injury. The instruction being in the disjunctive form would authorize the jury to find against the plaintiff if it found that his negligence was the proximate cause of the injury, or if it found from the evidence that his negligence contributed in the slightest degree to his injury.
This court is of the opinion that the error in giving instruction No. 1 was prejudicial to the plaintiff.
The same incorrect statement of the rule is in the general charge, where the jury was instructed that the plaintiff could not recover if his negligence contributed to the production of the injury, without containing any requirement that such contribution must be a direct or proximate cause of the injury.
Defendant also requested charge No. 2, which was given to the jury, that if the defendant was driving his automobile as an ordinarily careful and prudent person would drive it under the same or similar circumstances, the verdict should be for the defendant. This instruction assumes that the only negligence charged was the negligent driving of the automobile by the defendant; while the petition contains various charges of negligence. Among the charges of negligence contained in the petition is one of operating the automobile while it had defective brakes, which were out of order. The bill of exceptions contains testimony from two witnesses tending to show that they were familiar with the brakes on the defendant's car just before and just after the collision, and that the brakes were not good and would not stop the car readily, and that the defendant was told of that fact. This instruction entirely overlooks the condition of the brakes and would justify a finding by the jury that the only duty of the defendant was to operate his car with ordinary care. The giving of the instruction was prejudicial error.
Instruction No. 4, asked by the defendant and given to the jury, concludes with the sentence: "The fact that David Blackmore may have done the wrong thing does not in itself indicate that he was not in the exercise of ordinary care." It is true that this sentence immediately follows a correct statement of the law concerning the duty of a person when confronted by a sudden emergency; but the sentence quoted is in general form and the defendant was charged with being guilty of various acts of negligence. We think the sentence quoted makes the charge misleading and prejudicial.
We have examined all of the claimed errors, but find no other prejudicial to the plaintiff.
For the reasons given, the judgment will be reversed for giving instructions 1, 2 and 4, and the cause will be remanded for new trial.
Judgment reversed and cause remanded.
FARR and WILLIAMS, JJ., concur.
Judges WILLIAMS and RICHARDS, of the Sixth Appellate District, sitting by designation in the Seventh Appellate District.