Summary
In Satterthwaite, the defendant was traveling in the lane nearest the center line. A taxicab, which had been parked, pulled in front of defendant and stopped.
Summary of this case from Spalding v. WaxlerOpinion
No. 29367
Decided April 28, 1943.
Directed verdict — Court to assume all defense facts true — And find no valid defense presented to case made by plaintiff — Negligence — Failure by motor vehicle operator to comply with safety statute — Impossibility of compliance constitutes an excuse, when — Violation of legal requirement due to sudden emergency — Liability and proximate cause, questions for jury — Motions for directed verdict by both parties — Trial court not clothed with functions of jury, when.
1. In directing a verdict for the plaintiff, the trial court must assume that all the facts claimed by way of defense and supported by evidence are true, and must also find that they do not constitute a valid defense to the case made by the plaintiff.
2. An operator of a motor vehicle who has failed to comply with a safety statute regulating the operation of motor vehicles may excuse such failure and avoid the legal imputation of negligence arising therefrom by establishing that, without his fault and because of circumstances over which he had no control, compliance with the statute was rendered impossible.
3. When a defendant offers evidence of facts from which it may be inferred that his violation of such legal requirement was due to the existence of a sudden emergency arising without his fault, the questions of his liability in the premises, and of the proximate cause of injury resulting from such violation, are for the jury.
4. The trial court is not clothed with the functions of a jury as to questions of fact by reason of the fact that both parties have moved for directed verdicts, where the motion by one party is not made until after the court has overruled the motion made by the other.
APPEAL from the Court of Appeals of Cuyahoga county.
This action was prosecuted as the result of an automobile collision between the cars of the plaintiff, Satterthwaite, and the defendant, Charles A. Morgan, Jr., on the south side of Euclid avenue near the intersection of Cornell road in Cleveland, on February 9, 1940.
The situs of the collision was that section of Euclid avenue which lies between the easterly line of the intersection of Euclid avenue with Mayfield road and a point near the westerly line of Cornell road. Euclid avenue is an east-west main thoroughfare 70 feet wide. Double streetcar tracks extend along this street near the center thereof. The distance from the north curb of this avenue to the north rail of the westbound track is 27 feet 2 inches. Mayfield road is 36 feet wide and enters Euclid avenue from the southeast at an angle of approximately 45 degrees. Cornell road is 32 feet wide and enters Euclid avenue from the south at right angles. The east line of Cornell road is approximately 100 feet distant westwardly from Mayfield road turnout, measured along the south line of Euclid avenue.
A traffic light was suspended over the center lines of Euclid avenue and Mayfield road. This light was 191 feet east of the center line of Cornell road. There was no traffic light at the intersection of Euclid avenue and Cornell road.
The Yellow Cab Company maintained a telephone booth on the north side of Euclid avenue near the entrance to a hotel 22 feet east of the center line and 6 feet east of the easterly line of Cornell road, if such lines were extended across to the north side of Euclid avenue. A taxicab of the Yellow Cab Company was standing at this point immediately prior to the collision.
The collision occurred about nine o'clock in the morning on a clear day. There was some snow and ice on the streets which were quite slippery. The defendant Morgan, Jr., was driving his car westwardly on Euclid avenue in the third traffic lane from the curb with his car wheels astride the north rail of the westbound car tracks. Before the collision, he stopped for the red traffic light at the intersection of Euclid avenue and Mayfield road. There were two other cars, abreast of and to the right of his car in the second and first traffic lanes respectively, the car in the second lane proceeding in the same direction.
The plaintiff claims that when the defendant Morgan, Jr., started westwardly after the change of the traffic light at the intersection of Euclid avenue and Mayfield road, he negligently drove over the center line and to the south side of Euclid avenue where he collided head-on with plaintiff's car which was almost at a total stop on the south side of Euclid avenue near the intersection of Euclid avenue and Cornell road.
The defendant Morgan, Jr., claims that as the traffic light at the intersection of Euclid avenue and Mayfield road was about to change, a car came out of Mayfield road, made a left turn and went west on Euclid avenue just as he was starting west, which car, for a short period of time, more or less obstructed his vision westwardly; that after he started, the taxicab which had been near the north curb suddenly turned left in front of him, crossed over the north traffic lanes on Euclid avenue at the intersection of Cornell road, and suddenly stopped, standing on and across the streetcar tracks near the center of Euclid avenue; that he was unable to go behind and to the north of the taxicab because of the presence of cars moving abreast of and to the right of his car; and that in attempting to make an emergency stop in order to avoid a collision with the taxicab in front of him, his car skidded to his left on the slippery pavement and collided with the car of the plaintiff.
Suit was brought by the plaintiff against both the Yellow Cab Company and Charles A. Morgan, Jr., a minor 18 years of age, charging that the company, by and through its driver, carelessly and negligently operated one of its taxicabs across Euclid avenue in front of westbound traffic, and charging that the defendant Morgan, Jr., negligently operated his father's car "in a westerly direction on the northerly side of Euclid avenue at a high and dangerous rate of speed, * * * that thereupon he observed the taxicab of the defendant, Yellow Cab Company, in his pathway and so being operated in a southerly direction across Euclid avenue; that then and there the said defendant, Charles A. Morgan, Jr., carelessly and negligently drove said Pontiac sedan diagonally, southwesterly across Euclid avenue, and across the middle line thereof and into and upon the southerly or wrong side of Euclid avenue, and with great force and violence upon and against the plaintiff's automobile," resulting in personal injury to him and damage to his automobile.
The defendant Morgan, Jr., filed an answer to the petition denying negligence on his part, and alleging that the accident was due to the negligence of the defendant cab company in the operation of its taxicab.
At the close of plaintiff's case, separate motions were made by each of the defendants for a directed verdict. The court granted the motion of the Yellow Cab Company but denied that of the defendant Morgan, Jr., and the case proceeded against the latter.
At the close of all the testimony, the defendant, Morgan, Jr., renewed his motion for a directed verdict which was again overruled. The jury was then excused for lunch. When the court reconvened, the plaintiff made a motion for a directed verdict in his favor, which motion was granted as to liability and the jury was so instructed. Counsel for both sides then argued the case and the court submitted it to the jury on the question of damages only, whereupon the jury returned a verdict in favor of the plaintiff and against the defendant Morgan, Jr., in the sum of $5,000.
A motion for new trial was filed by the plaintiff challenging the dismissal of the defendant Yellow Cab Company from the case, and a motion for new trial was filed by the defendant Morgan, Jr., both of which motions were overruled. Notice of appeal was filed by both plaintiff and defendant Morgan, Jr., and upon hearing by the Court of Appeals, the judgment of the Common Pleas Court was affirmed, one judge dissenting. The case is now in this court for review by reason of the allowance of a motion on the part of the defendant Morgan, Jr., to certify the record of the Court of Appeals. Plaintiff took no appeal from the judgment of the Court of Appeals affirming the judgment of the Common Pleas Court as to the defendant Yellow Cab Company.
Mr. William H. Gillie and Mr. Harold F. Ellsworth, for appellee.
Messrs. McKeehan, Merrick, Arter Stewart, Mr. L.B. Davenport and Mr. Arthur E. Griffith, for appellant.
The defendant Morgan, Jr., claims that the trial court erred in determining he was guilty of negligence as a matter of law and in assuming that the court had authority to make such determination.
In directing a verdict for the plaintiff, the trial court must assume that all the facts claimed by way of defense and supported by evidence are true, and must also find that they do not constitute a valid defense to the case made by the plaintiff. The court may direct a verdict for the plaintiff only when there is no evidence upon which to found a verdict for the defendant. Heinsen v. Lamb, 117 Ill. 549, 7 N.E. 75.
The record discloses that the testimony of the defendant is to the effect that he was confronted with a sudden emergency after he had the "go" signal and had passed the intersection of Euclid avenue and Mayfield road, by reason of the sudden appearance of the taxicab in his traffic lane immediately ahead of him; and that in attempting to avoid a collision with the taxicab, he turned slightly to the left when the application of his brakes caused his car to skid on the ice, suddenly and unexpectedly to the left over the center line of Euclid avenue and into the car of the plaintiff. He further testified that when the taxicab came to a stop it was about 30 feet in front of his car.
Another eye witness testified that the taxicab operator apparently had elected to turn to the left from the cab station located on the north side of Euclid avenue, and apparently blocked defendant's car off so that he attempted to turn to the left with the taxicab to avoid colliding with it. This witness does not attribute the deflection of defendant's car to the south side of Euclid avenue to a skid on the ice but to the fact that the taxicab blocked the way, and that "apparently, in order to get around in front of the cab, the car [of defendant] was forced to go on the east-bound side of Euclid avenue."
The defendant is also entitled to have considered the facts stated in plaintiff's petition and the inferences to be drawn therefrom, insofar as they support his position as a defendant. The petition alleges that "the defendant, Yellow Cab Company, by and through its driver and agent, was carelessly and negligently operating one of its taxicabs from its stand on the northerly side of Euclid avenue approximately opposite the easterly line extended of Cornell road, southerly across Euclid avenue, in front of west bound traffic and in the path of the defendant, Charles A. Morgan, Jr., as hereinafter described, and to and toward the path of the plaintiff's automobile on the southerly side of Euclid avenue." (Italics ours.)
The petition further alleges that "the defendant, Yellow Cab Company, was guilty of negligence in the following particulars, to wit:
"First. That its driver failed and neglected to ascertain that he could make said turn without interfering with other traffic."
There is, therefore, in this record, probative testimony and admissions that the defendant was confronted with an emergency not of his own making. And, while an emergency does not excuse one from the exercise of due care, it must be due care in the light of the exigencies of the newly created emergency. Whether due care is used under such circumstances is, under our system of jurisprudence, a question to be determind by a jury.
The fact that the car of the defendant came into collision with that of the plaintiff because defendant's car skidded on the ice, does not necessarily prove negligence on the part of the defendant. Kohn, Admx., v. B. F. Goodrich Co., 139 Ohio St. 141, 38 N.E.2d 592. The petition in this case charges the defendant Morgan, Jr., among other things, with the violation of Section 2436 of the Ordinances of the city of Cleveland in that he drove his car "to the left side of the center line of a street or highway when meeting an approaching vehicle * * *." In defense of such a charge, an operator of a motor vehicle who has failed to comply with such an ordinance or statute may excuse such failure and avoid the legal imputation of negligence arising therefrom by establishing that, without his fault and because of circumstances over which he had no control, compliance with the ordinance or statute was rendered impossible. Kormos v. Cleveland Retail Credit Men's Co., 131 Ohio St. 471, 3 N.E.2d 427. Whether the defendant in this case established an excuse for operating his automobile on the wrong side of the street at the instant of the collision was, in the opinion of the court, a question for the jury.
The petition of the plaintiff charged that the joint or concurrent negligence of the defendant Morgan, Jr., and the Yellow Cab Company brought about the collision and damage to the plaintiff. The evidence shows that but for the presence of the taxicab in the center of Euclid avenue across the line of traffic, the collision might not have happened. This presents a question of proximate cause which should have been submitted to the jury.
"Where the evidence adduced gives rise to conflicting inferences as to whether the negligence of the defendant tort-feasor was the proximate cause of injury and damage to the plaintiff, a question of fact is presented for the determination of the jury under instructions of the court." Matz, Admr., v. J. L. Curtis Cartage Co., 132 Ohio St. 271, 273, 7 N.E.2d 220.
Some point is made that the defendant waived his right to have his case go to the jury by renewing his motion for a directed verdict at the close of all the testimony, followed by the motion on the part of the plaintiff for a directed verdict in his favor. This claim is predicated on the rule that "Where, at the conclusion of the evidence in a case, each party requests the court to instruct the jury to render a verdict in his favor, the parties thereby clothe the court with the functions of a jury, and where the party whose request is denied, does not thereupon request to go to the jury upon the facts, the verdict so rendered should not be set aside by a reviewing court, unless clearly against the weight of the evidence." First National Bank v. Hayes Sons, 64 Ohio St. 100, 59 N.E. 893; Perkins v. Board of County Commissioners, 88 Ohio St. 495, 103 N.E. 377; Nead v. Hershman, 103 Ohio St. 12, 132 N.E. 19, 18 A. L. R., 1419.
It will be noted that in the case at bar the motions of defendant and plaintiff were at no time concurrently pending. Before plaintiff's motion was made, defendant's motion had been overruled and disposed of. Consequently, the rule in question has no application. The trial court is not clothed with the functions of a jury as to questions of fact notwithstanding both parties have moved for directed verdicts, where the motion of the plaintiff is not made until after the court has overruled the motion made by the defendant.
For the reasons herein stated, the judgment of the Court of Appeals is reversed and the case is remanded to the Common Pleas Court for a new, trial.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, BELL and TURNER, JJ., concur.
WILLIAMS, J., not participating.