Opinion
Decided March 5, 1934.
Negligence — Automobile parked on prohibited side of street in night time — Driver, inspecting unloading, struck by automobile approaching from rear — Refusal to direct verdict not error — Abutting owner has easement in street for delivery purposes — Legislation or rule cannot deprive abutting owner of right without compensation — Error proceedings — Record not searched by court for errors — Review limited to questions in brief — Section 12248, General Code.
1. Where plaintiff, on rainy night, stopped her car at curb to unload it, and while standing at rear of car and looking in to see if unloading was completed, she was struck by defendant's car which was approaching from the rear, held, that court did not err in refusing to direct verdict for defendant.
2. Ruling, under ordinance, prohibiting parking on side of designated street, held not to prohibit abutting property owner, or one claiming under him, from using street for delivering and unloading articles to be taken into home.
3. Appellate court is not bound to search record for errors, but is required to examine only questions made in brief (Section 12248, General Code).
ERROR: Court of Appeals for Lucas county.
Messrs. Rheinfrank Lindecker, for plaintiff in error.
Mr. John S. Saalfield and Mr. Wm. H. McLellan, Jr., for defendant in error.
On January 26, 1932, the defendant in error, Neva Tester, was aiding her father to move some household articles and clothing to the latter's home at 809 Oakwood avenue, Toledo, Ohio, in a Ford automobile. She stopped her car in front of the house, which was in the middle of the block, and her father, assisted by her brother, took the things into the house; then she got out and went around into the street behind the car for the purpose of looking to see if the things had been taken out and everything was all right. While she was standing behind the car, engaged in this act, Clarence B. Eisenmann, plaintiff in error, came along driving a car, and ran into the back of the Tester car, striking Neva Tester and seriously injuring her.
There is some dispute in the facts. For instance, it is disputed whether or not she was standing before the rear light of her car or to the right of it; it is disputed whether or not there was another car parked back of her car. The accident happened at 7:45 p.m., on a rainy night. Eisenmann testifies that the bright lights were shining ahead of his car 150 to 200 feet, and he could see that distance, that he did not see Mrs. Tester at any time before the accident, and that he did not see her car until about 10 feet from it. He said the only thing that could have bothered him was the glare of headlights of approaching cars, but admits that when his deposition was taken he had testified that these headlights did not interfere. The testimony regarding the speed of Eisenmann's car varied from a rate of 20 to a rate of 40 miles per hour. The Tester car was parked on the right side of the street, and the Eisenmann car was going in the direction the Tester car faced.
Neva Tester brought action in the Court of Common Pleas to recover against Clarence B. Eisenmann for injuries sustained, the trial resulted in a verdict of $12,000 in her favor, and judgment was entered thereon.
It is now contended that this court should enter final judgment for plaintiff in error, and that, if this be not done, the judgment should be reversed because the verdict is not supported by sufficient evidence. These contentions of plaintiff in error are unfounded. The cause was properly submitted to the jury and we cannot disturb the verdict on the ground that it is manifestly against the weight of the evidence.
It is contended that the court erred with reference to rulings on the admission of evidence, regarding a rule of the director of public safety prohibiting parking on the south side of Oakwood avenue. Section 5 of Ordinance 4037 gave power to the director of public safety to adopt and publish such rule. The Tester automobile was facing east and standing on the south side of the street at the time of the accident. In our judgment this rule was of no importance in the instant case, even though it existed, and had been proven and offered in evidence, and had been held valid; for it would not entirely prevent the use of the south side of the street. The right of an abutting owner, or one claiming under him, to use the street for loading and unloading materials, and for purposes of delivery, is an easement in the street, and no ordinance or rule, or legislation of any kind, can deprive him of or impair that right without compensation. Testimony shows that there were signs forbidding parking on the south side of the street, but Neva Tester had a right to deliver articles at her father's house, and, in order to do so, it was proper for her to stand her car on that side of the street, and her car was rightfully there, as her mission had not yet been fully performed. The rulings on the special requests, and the framing of the charge, seem to have been based upon this theory of the law, and in our judgment the position of the trial court was in accord with established principles of law.
There is no claim made in this case that the verdict is excessive. We have examined all the questions made in the brief and in the argument and under Section 12248, General Code, a reviewing court is not bound to search the record for error, but is only required to examine questions made in the brief. We have examined every question so made and find no prejudicial error apparent upon the face of the record. The judgment will therefore be affirmed.
Judgment affirmed.
RICHARDS and LLOYD, JJ., concur.