Opinion
No. 28569
Decided December 31, 1941.
Charge to jury — Giving special request error — Pertinent legal principle stated but not its concrete application to evidence — Negligence per se — Failure of motor vehicle to keep to right of highway center — Section 6310-17, General Code (115 Ohio Laws, 231) — Court to explain what would or would not constitute violation of statute — Refusal of special instruction after general charge, not erroneous — Unavoidable accident not explained.
1. The giving of a special instruction, requested before argument, which, though stating a pertinent legal principle, does not concretely apply it by apt language to evidence in the case, constitutes error, which, if prejudicial, requires reversal of the judgment.
2. It is prejudicial error for the trial court, in an action for wrongful death alleged to have been caused by defendants' negligence, to instruct the jury at plaintiff's request that a violation of Section 6310-17, General Code (115 Ohio Laws, 231), which requires that motor vehicles shall keep to the right side of the center line of the highway, is negligence per se, without explaining to the jury in some instruction or in the general charge what would or would not constitute a violation of the statute.
3. In such an action it is not prejudicially erroneous for the court to refuse an instruction requested by the defendant after the court's charge, which requested instruction recites that the jury should return a verdict for the defendant if they find that the death of the decedent was the direct and proximate result of an unavoidable accident but which contains no explanation as to what constitutes an unavoidable accident, where neither the general charge, nor instructions given, define unavoidable accident.
APPEAL from the Court of Appeals of Lucas county.
This is an action for wrongful death brought in the Court of Common Pleas of Lucas county, Ohio, by Louise Kohn, administratrix of the estate of Leroy H. Kohn, deceased, against the B.F. Goodrich Company.
On February 23, 1938, at about 10:30 a. m., the decedent was working as a bridge tender cleaning a drain which was located on the Ash-Consaul Street Bridge across the Maumee river in the city of Toledo, Ohio.
Snow, and to some extent ice, had collected on the bridge previous to the accident. On the roadway of the bridge were four plates or steel treads, each 24 inches in width, two on the north side to serve as a track for west bound traffic and two on the south side for east bound traffic. On each of the plates vehicles had worn a rut two to four inches deep in the snow down to the metal. The temperature was about freezing. There is a conflict in the evidence as to whether the plates were either icy, wet or slippery.
John Vargo, an employee of B.F. Goodrich Company, defendant, in the performance of his duties as service man, was driving defendant's truck easterly across the bridge. The truck was loaded and had tire chains on the two rear wheels. There were no other vehicles upon the bridge proper at the time of the accident. At the same time the decedent was cleaning a drain located on the north side of the bridge about 150 feet cast of the east end of the draw and at the west end of the gate used to close the bridge to vehicular traffic when the draw is open for passage of vessels. Defendant's truck, when it was 20 to 40 feet from the place where decedent was cleaning the drain, turned across from the southerly side of the bridge to the northerly side, struck the decedent, while at his work, pinned him to the iron work of the bridge and so injured him that he died three days later.
The only person on the bridge proper, other than decedent and the truck driver, was David Baz. Baz testified to facts which are substantially as follows:
At the time the truck came along he was standing on the south side of the bridge about 25 feet west of the east end of the draw and about 175 feet from the decedent.
As the truck went by him he stepped up on the curb or sidewalk. When the truck reached the east end of the draw, the truck went over astride the center of the bridge roadway with the wheels on the middle two plates. After going along on the center plates for a distance of 20 to 40 feet beyond the draw, the truck went to the right side of the bridge a "little ways" and then turned across from the south side to the north 25 to 40 feet striking decedent. The truck was going about 30 miles an hour.
Later, when Baz's attention was called to a map of the bridge drawn to scale, he fixed B-2, a point 66 feet east of the east end of the draw, as the point or place where all of the four wheels got back "on his own side."
We quote from Baz's testimony: " When he [Vargo] leave east end of the draw he took center track. He did not skid until he tried to get out of the ruts and get on his own side."
Again the witness, Baz, testified on cross-examination (referring to such map):
"Q. Hold your pointer there. A. Yes, sir, when he got down to this point he was on this plate and he got on the ice here, then he fell into this track.
"Q. Hold your pointer where he got all four wheels back on his own side. A. Just about here.
"Q. All right, we will mark B-2. Now he had all four wheels on his track? A. Yes, sir.
"Q. You have already testified that he stayed there until he shot across. A. All at once I see — when you are traveling 30 miles an hour — that is not going to take long — just like lightning — and all at once I see the truck turn in, like lightning.
"Q. From B-2 to the line which you pointed out where he ran directly across to Mr. Kohn he had all four wheels in his right-hand track, didn't he? A. Just about; yes, sir.
"Q. This map is drawn to a scale, 8 feet equals one inch, and there is eight inches, so that 64 feet he traveled on his own right-hand side of the bridge on his own treads from 'B' to the diagonal line. A. He rode on the ice for a while.
"Q. Is your answer to the last question 'Yes'? A. Yes, sir.
"Q. Sir? A. Yes, sir.
"Q. * * * Where was this chunk of ice that you say he hit, was it on the tread? A. I said he was on the ridge, he knocked the piece of ice on the treads."
The driver, Vargo, testified that he was going 15 to 20 miles per hour; that he drove on the right-hand side of the bridge until he reached a certain point when the truck swerved to the left; and that he immediately jammed on his brakes but they did not take at all and the truck skidded to the other side, a distance of 15 to 20 feet, hitting the decedent.
He further testified as follows:
"Q. Tell the jury, John, how you happened to skid over to hit that man. A. Well, I was going along in good shape until some — something struck my left rear wheel, seemed to grab it so that truck swerved out of the right-hand path, went clear across the other side, I cannot say what it was."
Again he testified:
"Q. State whether or not you lost control of the steering of your car after it started to skid.
"Objection.
"A. Yes, sir, I did. Yes, Sir, I did lose control.
"Q. Tell the jury just how you handled the wheel, the steering wheel.
"Objection; overruled.
"Q. I am speaking now of the instant after you felt the sensation that the truck was skidding; describe to the jury just how you handled the wheel from that point.
"Objection; overruled.
"A. As I started to skid, of course my hands were on the wheel, and the next thing I knew I was on top of the man and I was still holding that the same as I was when I was on the right-hand side. * * *
"Q. Describe what it [the truck] did immediately upon the instant of your application of the brakes.
"Objection; overruled.
"A. It seemed to go exactly at the same speed."
Upon trial there was a verdict for the plaintiff in the sum of $22,300. The Court of Appeals, after a remittitur of $5,300 had been accepted by the plaintiff, modified the judgment accordingly and affirmed it as modified.
This court allowed a motion to certify the record.
Messrs. Fraser, Effler, Shumaker Winn and Messrs. Streicher, Gorman Jenne, for appellee.
Mr. Eugene Rheinfrank, for appellant.
The controlling questions arise from the giving of plaintiff's special request No. 4 which was founded on Section 6310-17, General Code (115 Ohio Laws, 231), as in force at the time in question, without explanation of the statute by the court at any time, and from refusing to give defendant's request (submitted after the general charge) on unavoidable accident.
Plaintiff's special request No. 4 reads: "Ohio General Code, Section 6310-17, provides as follows: 'Vehicles shall keep to the right side of the center or center line of the road or highway * * *.' And I charge you that a driver of a motor vehicle who violates this statute is guilty of negligence as a matter of law."
Likewise in the general charge the court gave to the jury substantially the same instructions; but neither in any other given request nor in the charge was there any explanation of what would or would not constitute a violation of the statute.
It is a fundamental principle that a charge of the court should be in the concrete rather than in the abstract. When the element of concreteness is markedly absent, the charge, as sometimes said, "lacks color." Abstractness does not necessarily vitiate a charge to the jury and most charges contain a modicum of abstract matter. If the court properly defines the issues and states the law with reference thereto in such form that the jury should understand the application thereof to the evidence, the charge is not vitiated by abstractness. Special instructions likewise must contain language which shows the application of a definite and pertinent legal principle to evidence in the cause on trial. It is necessary, then, to consider the legal effect of plaintiff's special request No. 4, and, incidentally, the court's charge on the same subject-matter for the purpose of determining whether the want of explanation imparts to the instruction and charge such abstractness as to make them prejudicially erroneous.
Plaintiff's evidence tended to show that defendant's driver, Vargo, after he left the draw and as he approached the decedent, drove in the ruts on the center plates and astride the center line of the bridge at a speed of 30 miles an hour (44 feet per second); and that in the driver's attempt to extricate the vehicle from the ruts the truck went to the right side of the bridge for a distance, "rode on the ice for a while," and then swerved to the left across the bridge roadway, killing the decedent. It is thus apparent that the court properly charged that the violation of Section 6310-17, General Code (as then in force), would constitute negligence "as a matter of law," that is, negligence per se, for according to Baz's testimony it was inferable that the swerving was directly due to the fact that he (Vargo) was on the wrong side of the roadway and was endeavoring while going at an unwarranted rate of speed on a slippery way to get back to the right side. On the other hand, defendant's evidence tended to show that Vargo was driving to the right of the center of the roadway and that 20 feet from decedent the truck, without fault of the driver, suddenly skidded across the bridge and hit decedent. In the absence of an explanation as to the meaning and application of Section 6310-17, General Code, the jury might well infer that failing to keep to the right of the road's center would be violative of the statute and negligence per se regardless of the reason for the skidding. By this turn of affairs the defendant was in the predicament that it might be found guilty of negligence per se by violating the statute even though the skidding of the truck to the left of the center was beyond the power of the truck driver to prevent. A safety statute does not require the driver of a motor vehicle to do the impossible. Kormos v. Cleveland Retail Credit Men's Co., 131 Ohio St. 471, 3 N.E.2d 427. If, as defendant claims, it was impossible for the driver, traveling on the right of the roadway, to keep the truck from going to the left side, there would be no violation of Section 6310-17.
The trial court committed reversible error in giving plaintiff's special request No. 4, without any explanation whatsoever of its application to the evidence.
There is the further question as to whether the trial court committed prejudicial error in refusing to give defendant's request made after argument. This request reads: "If you find from the evidence that the death of Leroy H. Kohn was the direct and proximate result of an unavoidable accident, you will return your verdict in favor of the defendant."
The essentials of unavoidable accident have been stated in a recent pronouncement of this court: "Unavoidable accident occurs only when the disaster happens from natural causes, without negligence or fault on either side." Paragraph 2 of the syllabus in the case of Uncapher v. B. O. Rd. Co., 127 Ohio St. 351, 188 N.E. 553.
The amended petition herein alleges not only negligence per se but also negligence in the sense of want of ordinary care. Evidence was offered to sustain these and other essential allegations in plaintiff's pleading and the court gave to the jury a charge that was full, accurate and not misleading on want of ordinary care, proximate cause and other elements, except negligence per se, as stated, but failed to define or charge specifically on unavoidable accident which was relied on by the defendant as a defense. This failure so to charge was merely an omission by the court insofar as the law governing want of ordinary care and proximate cause was concerned. The charge in this latter respect was therefore not prejudicially erroneous. Columbus Ry. Co. v. Ritter, 67 Ohio St. 53, 65 N.E. 613.
Unavoidable accident is not an affirmative defense but merely negatives negligence; consequently proof of such defensive matter may be given under a general denial. Stedman Fruit Co. v. Smith (Tex.Civ.App.), 45 S.W.2d 804; El Paso Electric Co. v. Hedrick (Tex.Civ.App.), 39 S.W.2d 128. However, an omission in the charge such as that referred to can only be taken advantage of by a specific request. See paragraph 2 of the syllabus in the case of Northwestern Ohio Natural Gas Co. v. First Congregational Church of Toledo, 126 Ohio St. 140, 184 N.E. 512, and I Reid's Branson Instruction to Juries (3 Ed.), 416, Section 152, and cases cited.
This survey of the applicable principles discloses that if defendant's request was correct in form and substance, the trial court was required to give it; and, if incorrect, the court was not required to give it.
If an accident took place, which was the result of natural causes without the fault or negligence of either party, then it is plain that there could not be want of ordinary care on defendant's part and plaintiff has not sustained the burden of proof with respect thereto. Since neither in a request nor in the general charge was unavoidable accident defined, the jury might reasonably have inferred from the instruction requested by defendant, if given, that plaintiff could not recover, even though the accident was unavoidable because of conditions created by the fault or negligence of either or both parties. The defendant's request, which made no distinction between negligence per se and negligence consisting of want of ordinary care, was therefore misleading in failing to state the essential elements of unavoidable accident and was properly refused. Leland v. Empire Engineering Co., 135 Md. 208, 217, 108 A. 570, 574.
A query has arisen as to whether the court was not required sua sponte to correct the request or to prepare a correct statement of the law on unavoidable accident and submit the corrected request or the statement as the case might be to the jury.
However, it is not necessary to enter upon this inquiry. The cause must be retried and the trial court will then have an opportunity to explain the statute, to instruct on the effect of the impossibility to comply with the provisions thereof and to cover fully the kindred subject of unavoidable accident.
Defendant's counsel has urged other assignments of error but none of them is of controlling importance.
For the prejudicial error in giving plaintiff's special request No. 4 without explanation at any time, the judgments of the courts below are reversed and the cause remanded to the Court of Common Pleas for a new trial.
Judgment reversed and cause remanded.
TURNER, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
WEYGANDT, C.J., and BETTMAN, J., dissent.