Summary
In Van Jura, Row was driving south on the inside lane of a five-lane street (two southbound lanes and three northbound lanes).
Summary of this case from Dawson v. GriffinOpinion
Nos. 37613 and 37631
Decided June 19, 1963.
Motor vehicles — Negligence — Traffic regulations — Making left turn in face of oncoming traffic — Signal to proceed by operator of oncoming vehicle — Proceeding to complete turn, negligence as matter of law, when — Charge to jury — Proximate cause.
1. One who seeks to make a left turn, in the face of traffic coming from the opposite direction, cannot absolve himself from the obligation to proceed with due care by claiming that he depended upon a signal of a motorist going in the opposite direction, who stopped to allow the one making a left turn to pass in front of him.
2. A motorist about to make a left turn, who is given a signal to pass in front of a stopped vehicle going in the opposite direction, and who, being unable to see whether any other vehicle is also going in the opposite direction, attempts to complete his left turn without exercising due care, and collides with another vehicle having a lawful right to proceed, is guilty of negligence as a matter of law.
3. An instruction to the jury that it may find the sole proximate cause of an accident to be the act of a truck driver who, having a right to proceed, nevertheless stopped and motioned a left-turning motorist to pass in front of him, is prejudicial and erroneous.
APPEALS from the Court of Appeals for Mahoning County.
These two cases arise from the same motor vehicle collision in the city of Youngstown, Mahoning County.
In case No. 37613, John M. Row is the appellant. In case No. 37631, Ronald M. Bires, a minor, is the appellant.
On November 5, 1957, Row was driving his automobile south on Wick Avenue in the city of Youngstown, intending to go to the Wickwood Restaurant for his breakfast. This restaurant is located on the east side of Wick Avenue, in about the center of the block. Wick Avenue, in this location, has two lanes for southbound traffic and three lanes for northbound traffic. Row approached the location of the Wickwood Restaurant in the inside southbound lane, indicating his intention to turn to the left across the northbound lanes by his turn-signal light. There was no traffic in the northbound lane nearest Row, and his ability to see the northbound curb lane was obscured by a large truck in the center northbound lane.
Traffic in the northbound side of Wick Avenue was halted by a red light at Rayen Avenue, the next street north of the Wickwood Restaurant. The operator of the truck stopped his motor vehicle just south of where Row was waiting to turn into the Wickwood Restaurant, and motioned for Row to proceed, which he did, although he was not able to see what, if anything, was proceeding in the northbound curb lane. In the northbound curb lane Bires was proceeding north, driving his automobile with five high-school girls as passengers, four of whom paid him a weekly fee for their transportation to high school. Among these paying passengers was the plaintiff, Andrea Van Jura, a minor, appellee herein, who claimed she was injured as a result of the collision between the Bires automobile and the Row automobile.
The driver of the truck is not a party to this action, and, in fact, his identity is not known.
At the conclusion of the action brought by the father, as next friend of the plaintiff, the trial judge instructed the jury, before the oral argument, as follows:
"The court says to you that if you find from the evidence in this case that the sole, real and proximate cause of this accident was negligence of the unidentified truck driver in motioning the defendant, Mr. Row, to make a left turn, then your verdict in this case must be in favor of the defendants."
In the general charge to the jury, the trial judge said further as follows:
"The defendants also claim, by virtue of the evidence which has been submitted at the trial, and offered at the trial, that the truck driver was negligent, and the defendants Row and Bires say that it was the truck driver's negligence which solely and proximately caused the injury to the plaintiff, the unidentified truck driver. * * *"
Judgment was rendered on a jury verdict for the defendants, appellants herein. An appeal was then lodged in the Court of Appeals for Mahoning County, which court, finding the charges to the jury as set out above to be prejudicial and erroneous, reversed that judgment and remanded the cause to the Court of Common Pleas for a new trial.
A motion to certify the record to this court was allowed in each case.
Mr. Reuben Segall, for appellee.
Mr. William E. Pfau and Mr. William E. Pfau, Jr., for appellant in case No. 37613.
Messrs. Stephens, Stephens Wilkes, for appellant in case No. 37631.
The situation which confronted Row, as he was waiting to make his left turn across the three-lane northbound portion of a heavily traveled highway, is one that occurs to motorists every day. Can one who is waiting to make a left turn depend upon the action of another motorist and absolve himself from liability for injury committed upon a party, by showing that he was invited to proceed in his left turn by such other motorist, who, at that time, had the right to proceed uninterruptedly in the direction in which he was headed?
A search of the reported cases in Ohio does not disclose that the fact situation herein has come before the courts of this state. Our attention has been called by counsel herein to the following cases from other jurisdictions: Devine v. Cook (1955), 3 Utah (2d), 134, 279 P.2d 1073; Sweet v. Ringwelski (1961), 362 Mich. 138, 106 N.W.2d 742; and Armstead v. Holbert (1961, W. Va.), 122 S.E.2d 43.
In each of such cases, the truck driver motioning the injured party, or the motorist, to proceed to cross in front of his vehicle, was made a party to the action brought by the one claiming damages. In each of two of such cases, Armstead v. Holbert, supra, and Sweet v. Ringwelski, supra, the injured party to whom the motion to cross in front of the motor vehicle was given was a girl of tender years.
In the case of Devine v. Cook, supra, a motorist and his passengers, who were proceeding on the same side of the street occupied by a tractor-trailer, brought actions against the employer of the truck driver and the motorist who proceeded from a side street, across a through highway intersection in front of the truck stopped to make a left turn and into the path of the Devine automobile upon the claimed signal of the truck driver. The act of the truck driver, in motioning the motorist to proceed, was deemed to be only an indication that he, the truck driver, was yielding the right of way to the motorist, and not an indication that such driver could proceed as though the entire roadway was clear.
In consideration of the case before us, we note that Section 4511.39, Revised Code, in part, says:
"No person shall turn a vehicle * * * from a direct course upon a highway until such person has exercised due care to ascertain that the movement can be made with reasonable safety to other users of the highway * * *."
It must be remembered that Row said he could not see what vehicles, if any, were in the curb lane. The truck blocked his view of that portion of the highway into which he was turning. He stated further that he depended entirely upon the motion of the operator of the truck that he could proceed to complete his left turn in safety.
This court has heretofore stated, in Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440, that Section 4511.39, Revised Code, prescribes a rule of conduct as distinguished from a specific duty to act. One who fails to obey such rule of conduct is not then guilty of negligence per se.
The truck driver in the instant case could have gone forward, thus forcing Row to wait until the northbound part of Wick Avenue was clear. He chose to signal Row to proceed in front of him. The truck driver, in the position he found himself, owed no duty to Row. His act was one of courtesy, not obligation. Any other view of the motion on the part of Row can only be construed as a disregard of the rights of others lawfully on the highway.
Neither Row, nor Bires, the operator of the car in which plaintiff was riding, can avoid the consequences of his failure to exercise due care owed to plaintiff by a claim that the act of a third-party stranger caused the collision in this case.
So far as Row is concerned, he cannot be heard to say that his failure to proceed to the left with due care was because of the act of the truck operator. His obligation, as he moved left across the path of other vehicles, was to keep a lookout for such traffic, and not depend upon the act of another. In that respect, the conduct required by Section 4511.39, Revised Code, cannot be delegated to another, and thereby absolve the offending party from proceeding with due care. When Row, without exercising any care, proceeded to complete his left turn, and thereby collided with the vehicle being operated by Bires, he became guilty of negligence as a matter of law.
The instruction of the trial judge confused the duty owed by the operators of these vehicles to plaintiff with an act of driving courtesy. The act of courtesy displayed by the truck driver cannot impose upon him a duty to others rightfully on the highway, nor can it be called an act of negligence on his part, thereby imposing upon him the consequences of a voluntary act.
The rule in the case of Schreiber v. National Smelting Co. (1952), 157 Ohio St. 1, 104 N.E.2d 4, is not applicable herein.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and GIBSON, JJ., concur.
HUNSICKER, J., of the Ninth Appellate District, sitting by designation in the place and stead of GRIFFITH, J.