Summary
holding that "reasonable minds could reach different conclusions as to whether the overturned tractor-trailer was reasonably discernible" where "the dark, unreflective underside of the overturned tractor-trailer was facing traffic...[t]he stretch of highway where this accident occurred was unlit and the night was dark," and "the lights of the overturned tractor-trailer were off"
Summary of this case from Novovic v. Greyhound Lines, Inc.Opinion
No. 83-1962
Decided March 13, 1985.
Wrongful death — Comparative negligence applicable, when — Jury question presented, when.
APPEAL from the Court of Appeals for Montgomery County.
Appellant, Mary Ann Junge, commenced this wrongful death action in the Court of Common Pleas of Montgomery County as the executrix of the estate of Raymond Allen Junge, her deceased husband. The action was also brought on behalf of appellant's two children as well as on appellant's own behalf. Appellant alleged that appellees herein negligently caused Raymond Junge's death under the following circumstances.
Raymond Junge (hereafter Junge) was a truck driver who was operating a tractor-trailer in a southerly direction on Interstate 75 between Springfield and Dayton, Ohio on the morning of July 10, 1979. A tractor-trailer operated by Clarence L. Brothers and owned by Southern Ohio Truck Lines, Inc., appellees herein, had been travelling in the same direction ahead of Junge. Appellees' tractor-trailer left the highway, collided with a car parked along the berm, returned to the highway and overturned. Appellees' truck came to rest blocking all but the far right lane of the three lanes of traffic and overturned so that the dark, unreflective underside of the trailer was facing oncoming traffic, the direction Junge was travelling.
At some point between 3:00 and 4:00 a.m., Junge entered the center lane from the far right lane in order to pass a truck travelling in the right lane. As Junge came abreast of the truck that he was about to overtake, he collided with appellees' overturned vehicle. As a result of the collision, Junge suffered severe injuries and died twelve days later.
Appellant's complaint named as defendants, inter alia, Brothers and Southern Ohio Truck Lines. The cause proceeded to a jury trial on September 13, 1982. At the close of appellant's case, the trial court directed a verdict in favor of appellees by finding that Junge was contributorily negligent per se under R.C. 4511.21 and that Junge's injuries and death were proximately caused by his own negligence.
While an appeal was pending before the court of appeals, this court announced its decision in Wilfong v. Batdorf (1983), 6 Ohio St.3d 100, which held in paragraph three of the syllabus that comparative negligence would apply to all actions tried after June 20, 1980. Nevertheless, the court of appeals affirmed the judgment of the trial court and held that, as a matter of law, the negligence of Junge was greater than any negligence of the appellees.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Rodney M. Arthur Co., L.P.A., Mr. Rodney M. Arthur and Mr. Joseph W. O'Neil, for appellant.
Messrs. Freund, Freeze Arnold, Mr. Neil F. Freund and Mr. Patrick J. Janis, for appellees.
The question presented by this appeal is whether the court of appeals correctly ruled that appellant was not entitled to a new trial which would be controlled by the principle of comparative negligence. For the reasons to follow, this court holds that appellant should be granted a new trial.
In Wilfong v. Batdorf, supra, we overruled Viers v. Dunlap (1982), 1 Ohio St.3d 173, and Straub v. Voss (1982), 1 Ohio St.3d 182, and held at paragraph three of the syllabus:
"The principle of comparative negligence, consistent with the provisions of R.C. 2315.19, applies to all negligence actions tried after June 20, 1980, irrespective when the cause of action arose, as part of the common law of Ohio. * * *" (Emphasis sic.)
As the court of appeals in the instant case recognized, since appellant's action was tried after June 20, 1980 and was pending on direct appeal when Wilfong, supra, was decided, appellant is entitled to the benefit of that decision and may have her action adjudicated under the principle of comparative negligence. We disagree, however, that reasonable minds could only conclude that Junge was negligent " per se" and that his negligence exceeded any negligence of appellees.
Appellant urges that the trial court erred by directing a verdict in favor of appellees, inasmuch as reasonable minds could disagree as to whether Junge violated R.C. 4511.21, the assured-clear-distance statute, and was thus negligent per se, and whether Junge's negligence, if any, was greater than any negligence of appellees. We agree.
R.C. 4511.21 provides in part:
"(A) * * * [N]o person shall drive any motor vehicle * * * at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead."
As we stated in Blair v. Goff-Kirby Co. (1976), 49 Ohio St.2d 5, 7 [3 O.O.3d 4]:
"* * * Violation of the statute [R.C. 4511.21] and a finding of negligence per se depends on whether there is evidence that the driver collided with an object which (1) was ahead of him in his path of travel, (2) was stationary or moving in the same direction as the driver, (3) did not suddenly appear in the driver's path, and (4) was reasonably discernible. McFadden v. Elmer C. Breuer Trans. Co. (1952), 156 Ohio St. 430 [46 O.O. 354]." See, also, Tomlinson v. Cincinnati (1983), 4 Ohio St.3d 66, 69; Sabo v. Helsel (1983), 4 Ohio St.3d 70; and Shinaver v. Szymanski (1984), 14 Ohio St.3d 51, 54.
In Tomlinson, supra, at 69 it was stated:
"Where conflicting evidence is introduced as to any one of the elements necessary to constitute a violation of the statute, a jury question is created."
It was additionally stated in Blair, supra, at 9:
"That the discernibility of an object, regardless of its size, should be a jury question where the evidence of discernibility is sufficient to make reasonable persons disagree is supported by policy reasons and the holdings of other jurisdictions as well. To begin with, the goals of the tort system are probably better served by a jury determination of the facts than by judge-made determinations of law.
"Especially in cases involving the assured-clear-distance statute, which, by definition, require evaluation of the conduct of the driver in light of the facts surrounding the collision, the judgment of a jury is more likely to achieve a fair result than is a judge-made rule of law. * * *"
Bearing in mind our expressed preference for jury determinations of disputed factual questions, we conclude that a jury question was raised as to whether Junge violated R.C. 4511.21, thus making a directed verdict on that question improper. When faced with a motion for a directed verdict, "the evidence must be construed most strongly in favor of the party against whom the motion is made." Sabo v. Helsel, supra, at 72-73; Civ. R. 50(A)(4).
In the case at bar, the dark, unreflective underside of the overturned tractor-trailer was facing traffic. The stretch of highway where this accident occurred was unlit and the night was dark. The lights of the overturned tractor-trailer were off. The driver of the vehicle which Junge was about to overtake testified that, while he could make out some object on the roadway approximately three truck lengths before reaching it, he was only able to identify the object (the overturned tractor-trailer) as he travelled past it.
Based upon the foregoing circumstances and construing the evidence most strongly in favor of appellant, we hold that reasonable minds could reach different conclusions as to whether the overturned tractor-trailer was reasonably discernible. Sabo, supra. Consequently, the trial court erred in directing a verdict against appellant. The question of whether Junge violated R.C. 4511.21 should have been left to the jury. Cf. Lewis v. Certified Oil Co. (1981), 67 Ohio St.2d 277 [21 O.O. 3d 174].
This court recently held in Shinaver v. Szymanski, supra, at paragraph three of the syllabus:
"* * * [The] issue of whether the contributory negligence of a beneficiary is the proximate cause of the wrongful death must be submitted to the jury pursuant to the comparative negligence provisions of R.C. 2315.19(A)(1)."
Accepting the trial court's directed verdict to the effect that Junge was negligent in some degree, the court of appeals concluded that, as a matter of law, the negligence of Junge exceeded any negligence of appellees. Although circumstances could arise under which a directed verdict would be appropriate in a comparative negligence situation, the facts of the case at bar are irreconcilable with that conclusion.
The record indicates that Brothers, the driver of the overturned vehicle, heard a noise in the rear of his vehicle sometime prior to colliding with the parked car. Brothers attempted to ascertain the source of the noise by looking into his rearview mirror for approximately five to six seconds. When he returned his glance to the roadway, he realized that a portion of his vehicle was travelling on the berm and that he was heading directly for a car parked on the berm. Brothers' vehicle struck the parked car, veered back on to the highway and overturned. In addition, Brothers testified that he had been driving a long stretch and had been compelled shortly before the collision to stop for a cup of coffee.
Assuming that a jury finds negligence on the part of both Junge and appellees, and construing the evidence most strongly in favor of appellant, we were unable to hold, as did the court of appeals, that Junge's negligence exceeded appellees'. In fact, in our view, it is equally plausible that under such circumstances a jury could very well find that appellees' negligence exceeded Junge's.
Accordingly, based on the foregoing reasons, the judgment of the court of appeals is reversed and the cause is remanded to the trial court for further proceedings consistent with this decision.
Judgment reversed and cause remanded.
CELEBREZZE, C.J., SWEENEY, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.
LOCHER, J., concurs in judgment only.