Opinion
No. 36302
Decided July 13, 1960.
Negligence — Special instructions to jury — That verdict must be for defendant — If any negligence of plaintiff "contributed in the slightest degree" — Quoted phrase not held prejudicial.
APPEAL from the Court of Appeals for Huron County.
The evidence adduced at the jury trial of this cause depicted the occurrence of a collision on Route 18 in the unincorporated community of Clarksfield, Huron County, Ohio, involving a private automobile operated by the plaintiff, appellant herein, and a bus owned by the defendant, appellee herein, and operated by its servant. (The parties will be herein referred to as they were in the trial court.) Plaintiff had entered Route 18 by a right turn from a side road and had proceeded approximately 1,000 feet along Route 18 before making a left turn into the driveway of her residence. As she completed the turn, and at a moment when her front wheels had entered the driveway and her rear wheels had passed to the left side of the highway, the left rear portion of her automobile was struck by the left front portion of defendant's bus, causing substantial damage to the former. Immediately prior to the collision, the bus driver had moved his vehicle from the right to the left lane, preparatory to passing plaintiff's car. After plaintiff started her left turn the bus driver attempted to return to the right lane but he was unable to successfully do so and the collision resulted.
The plaintiff testified that prior to commencing her left turn she twice looked to see what was approaching from the rear, with negative results, and that prior to turning she indicated her intention to do so by the required hand and arm signal. The bus driver testified that he saw no such signal, and it is debated whether vision was impeded by the existence of a crest over which the vehicles passed immediately prior to the accident. However, an eyewitness who saw the accident from a pedestrian position said he did not see plaintiff give a signal, although he "saw everything up until the crash."
The jury returned a verdict for the defendant, and, a motion for new trial having been overruled, plaintiff perfected her appeal to the Court of Appeals, which affirmed the judgment of the trial court. Plaintiff thereupon filed her motion to certify the record to this court, which motion was allowed.
Messrs. Freeman Freeman, for appellant.
Messrs. Flynn, Py Kruse and Mr. Raymond N. Watts, for appellee.
The principal error complained of is the giving by the trial court of the two following special charges at the request of the defendant:
"The court instructs you as a matter of law that if you find that the plaintiff, Jean Reep, was guilty of negligence which directly caused or contributed in the slightest degree to the proximate cause of the accident, then your verdict must be for the defendant, The Greyhound Corporation."
"The court instructs you as a matter of law that if you find that the plaintiff, Jean Reep, in the exercise of ordinary care should have ascertained before making the left turn into her driveway off of Route 18 that such turn could be made with reasonable safety, and that she failed to do so and that such failure directly caused or contributed in the slightest degree to the proximate cause of her injuries, then your verdict must be for the defendant, The Greyhound Corporation."
The principal point of attack in both these charges is the use of the phrase, "in the slightest degree," and it is argued that this phrase is particularly vicious when used in conjunction with the phrase, " guilty of negligence," the use of which we agree was unfortunate. In fact, in spite of some of the previous pronouncements of this court, a majority of our members are of the opinion that the use of the phrase, "in the slightest degree," in connection with contributory negligence in a charge to a jury constitutes error.
In spite of this conclusion, we are not, under the circumstances of the present case, disposed to here hold that the giving of these charges constituted prejudicial error, and the judgment of the Court of Appeals is, accordingly, affirmed. See Chesrown v. Bevier, 101 Ohio St. 282, 128 N.E. 94; Bartson v. Craig, an Infant, 121 Ohio St. 371, 169 N.E. 291; Bradley, an Infant, v. Mansfield Rapid Transit, Inc., 154 Ohio St. 154, 93 N.E.2d 672; Plotkin v. Meeks, 131 Ohio St. 493, 3 N.E.2d 404; and Plas v. Holmes Construction Co., Inc., 157 Ohio St. 95, 104 N.E.2d 689.
Judgment affirmed.
ZIMMERMAN, TAFT, MATTHIAS, HERBERT and PECK, JJ., concur.
WEYGANDT, C.J., and BELL, J., dissent.
Since the court is of the opinion that the questioned language of the trial court's charge to the jury is unfortunate and erroneous, it would seem that this unfortunate and erroneous language which has been merely tolerated should now be definitely proscribed and the judgment herein reversed in order that the parties may be accorded a fair retrial free from error.
BELL, J., concurs in the foregoing dissenting opinion.