Summary
stating that "[i]t is . . . well-settled that '[n]egligence per se does not equal liability per se'"
Summary of this case from Michael v. Velox Trucking, Inc.Opinion
No. 84-976
Decided June 5, 1985.
Negligence — Motor vehicles — Negligence per se is not liability per se — Motion for directed verdict properly overruled, when.
APPEAL from the Court of Appeals for Guernsey County.
Appellant, Thomas H. Hitchens, was riding a moped over a winding, narrow two-lane highway on a sunny summer afternoon. Appellee, Jessie Hahn, was traveling the same direction in his truck with a boat in tow. Appellee had just crested a knoll in the road when he came upon appellant's moped. Appellee believed the moped was being ridden in an erratic manner because it was "zig-zagging." Both vehicles were at a straightaway portion of the road where passing was permitted. Appellee was driving within the posted speed limit; however, he was rapidly closing in on the moped because of the bike's significantly lower speed. Not certain whether he could slow his truck in time to avoid ramming the wobbling moped, appellee swung his truck into the left lane in order to pass appellant. Apparently, appellee did not signal appellant that he was passing. Appellant noticed the truck behind him but was unaware that he was about to be passed. The vehicles collided and appellant was seriously injured.
Appellants, Thomas and Louetta Hitchens, filed this personal injury action against appellee claiming damages arising out of the moped-truck accident. Appellee filed a general denial and set forth defenses of contributory negligence and sudden emergency.
The place of impact was disputed at trial, where extensive evidence was presented concerning the topography, condition of both drivers, and the circumstances of the accident. Appellant claimed that at the time of the collision he had switched on the bike's turn signal and was beginning to make a left turn into a private driveway. Appellee testified that he did not see a lighted turn signal on the moped. He denied that appellee could have been turning because there was no side road or driveway at the point of impact. Appellee contends that appellant must have swerved across the center line and collided with the truck as it passed him. The right door and mirror of appellee's truck were damaged.
At the close of evidence, the trial court denied appellants' motion for a directed verdict. In response to the several theories of defense, negligence, and liability raised in the case, the trial judge instructed the jury, inter alia, on negligence, sudden emergency, violations of safety statutes as negligence, and comparative negligence. The jury returned a general verdict favorable to appellants in the total amount of $100,000 ( i.e., $75,000 for Thomas Hitchens and $25,000 for his wife, Louetta Hitchens). The jury also found, in answer to special interrogatories on comparative negligence, that appellant Thomas Hitchens was thirty percent at fault for the accident and the resultant injuries. Accordingly, the trial court reduced the awards by thirty percent and entered judgment in favor of appellants in the total amount of $70,000.
Subsequently, the trial court overruled appellants' motions for a new trial and for judgment notwithstanding the verdict.
Upon appeal, the court overruled all of appellants' assignments of error and affirmed the trial court's judgment.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Price Berry, Charles L. Price and John F. Berry, for appellants.
Tribbie, Scott Moorehead and Thomas L. Tribbie, for appellee.
In their propositions of law before this court, appellants contend that appellee was negligent per se as he failed to give a passing signal as required by R.C. 4511.27(A). Appellants argue that the ensuing collision was proximately caused, as a matter of law, by appellee's negligence. Accordingly, appellants assert that the trial court committed reversible error by failing to sustain appellants' motion for a directed verdict.
Both parties cite our decision in Wilfong v. Batdorf (1983), 6 Ohio St.3d 100, as controlling. Paragraph one of the syllabus in Wilfong holds:
"The mere failure of the driver of an overtaking vehicle to give a signal before passing a vehicle to be overtaken is not sufficient to render the driver guilty of contributory negligence as a matter of law."
Litigants must guard against a mere color-matching of cases. The determination of liability requires a careful evaluation of all the circumstances and, in most cases, the assistance of a trier of facts. As we recently observed in Junge v. Brothers (1985), 16 Ohio St.3d 1, at 3:
"`[W]here conflicting evidence is introduced as to any one of the elements * * * a jury question is created.'
"* * *
"Bearing in mind our expressed preference for jury determinations of disputed factual questions, we conclude that a jury question was raised * * *, thus making a directed verdict on that question improper."
It is also well-settled that "[n]egligence per se does not equal liability per se. Simply because the law may presume negligence from a person's violation of a statute or rule does not mean that the law presumes that such negligence was the proximate cause of the harm inflicted." Merchants Mut. Ins. Co. v. Baker (1984), 15 Ohio St.3d 316, 318. Proximate cause is an element of negligence. "Proximate cause and negligence are not complete and independent issues." Gallagher v. Cooper (1984), 14 Ohio St.3d 41, 43.
In this case, there were threshold jury questions including whether appellant was within the class of persons to be protected by the statute and whether the type of harm which occurred was a result of a violation of the statute. The causal connection, appellant's own negligence, and other disputed issues of fact were all proper jury issues. Reynolds v. State (1984), 14 Ohio St.3d 68, 70-71, fn. 5. Additionally, Wilfong observes at 103 that the issue of whether a signal, not given, would have been effective in a situation is a question of fact.
Consistent with our decision in Junge, supra, we cannot agree with appellants that reasonable minds could only conclude that appellee was negligent per se in that his negligence was the sole proximate cause of the collision.
Lastly, the granting of a directed verdict in this case would have ignored the fact that appellant Thomas Hitchens could also have been viewed as negligent per se in violating R.C. 4511.39 (turning without due care) or in causing the collision by swerving into appellee's truck. See Baker, supra, at 318. The Baker court observed that: "[i]n a case such as this, where reasonable minds could differ as to whose acts or omissions constitute the proximate cause of the accident, such determination is better left for the jury."
Inasmuch as the jury verdict was favorable to appellants concerning appellee's negligence and proximate causation, and was then properly reduced by thirty percent consistent with the jury's finding concerning appellant Thomas Hitchens' comparative negligence, we hold that the trial court correctly overruled appellants' motion for a directed verdict. Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.