Decided April 20, 1932.
Negligence — Charge to jury erroneous — Material fact assumed where evidence conflicting — Judgment for defendant not reversed for erroneous charge upon contributory negligence — General verdict returned, and defendant's negligence correctly submitted to jury.
1. An instruction to the jury is erroneous which assumes the existence of a material fact, affecting the issue of negligence or contributory negligence, as to which the evidence adduced is in conflict.
2. Where, in the trial of an action to recover damages for negligence, a general verdict was returned for the defendant, the record not disclosing upon which issue the verdict was based, and the record disclosing no error either in the presentation or submission of the issue of the defendant's negligence, the judgment rendered on such verdict will not be reversed for error in instructions having reference only to the issue of contributory negligence.
ERROR to the Court of Appeals of Mahoning county.
In this action instituted in the court of common pleas of Mahoning county, the plaintiff sought damages for injuries claimed to have been caused by the negligence of the defendant in the operation of one of its street cars. The allegations of the second amended petition are, in substance, that while in the act of crossing West Federal street in the city of Youngstown, from the southerly to the northerly side of said thoroughfare, a few feet east of the intersection of that street with the westerly side of Central Square, it became necessary for plaintiff to stop in what is commonly known as the "devil strip," between said tracks, in order to permit the passage of one of the defendant's cars being operated in a westerly direction on its west-bound track; that while so standing the defendant caused and permitted another of its street cars to be operated in an easterly direction on its east-bound track in a careless, negligent and unlawful manner toward plaintiff, placing him in a position of sudden peril and causing him to believe that he was in imminent danger, by reason whereof he attempted to go northerly across the west-bound track ahead of the west-bound street car, and was thereupon struck by that car and hurled beneath the wheels of the east-bound car, and thereby severely injured, which injuries are set forth in detail.
The charges of negligence may be summarized as follows: Speed; disregard of traffic light at the intersection; failure to give warning; failure to keep a proper lookout and reduce the speed on observing plaintiff's perilous position.
The defendant admitted that upon the date alleged plaintiff was involved in an accident, and that he sustained severe injuries by coming in contact with one of the defendant's cars, but denied all other allegations of the petition, and asserted that plaintiff's injuries were brought about solely as a result of his own failure to take any precautions for his own safety.
Upon the trial of the case the court gave the jury, before argument, the following special charges upon request of counsel for the defendant, which charges are referred to by counsel as Nos. 3, 5 and 6:
"3. It was the plaintiff's duty to exercise ordinary care in looking and listening for approaching cars before going upon the street car tracks, and if he failed to exercise ordinary care in such respect and such failure contributed directly and proximately in any degree in producing the accident and injury to plaintiff, he cannot recover in this case and your verdict must be for the defendant company."
" 5. Members of the jury, the court says to you that if you find by the greater weight of the evidence that the plaintiff, Rudolph C. Binder, failed to look for the approaching east-bound street car before crossing the street, or if you find that the plaintiff looked for said street car but failed to see it, or if you find that the plaintiff proceeded to cross Federal street in front of said street car after seeing it, all of which contributed directly and proximately to the accident, he is guilty of contributory negligence and cannot recover for the injuries sustained in said accident and your verdict must be in favor of the defendant, The Youngstown Municipal Railway Company."
"6. Members of the jury, the court says to you if you find by the greater weight of the evidence that the failure of the plaintiff, Rudolph C. Binder, to look in a westerly direction from which the street car was approaching, at a time and place when such looking would have been effective, and such failure to look resulted in an injury to him when the same might have been avoided had he so looked, such conduct will prevent plaintiff from recovering a verdict in this case and your verdict must be in favor of the defendant, The Youngstown Municipal Railway Company, and this is true even though you find that the evidence tends to show that the defendant was negligent."
The jury returned a verdict in favor of the defendant, which was affirmed by the Court of Appeals. Upon allowance of motion, the record was filed in this court for review, and a petition in error seeks the reversal of the judgment of the Court of Appeals.
Mr. John Ruffalo, for plaintiff in error.
Messrs. Harrington, De Ford, Huxley Smith, for defendant in error.
The record in this case presents the question whether the trial court committed error prejudicial to plaintiff in instructing the jury as requested by counsel for defendant in the respects set forth in the preceding statement.
We are of the opinion that request No. 3 is not erroneous in the respect complained of. That charge merely places upon the plaintiff the duty to exercise ordinary care for his own safety. There can be no exercise of care in a situation such as presented by the record in this case without the use of the faculties, and it is not erroneous to instruct the jury that it is incumbent upon a pedestrian about to cross a city street, or while crossing a city street, to make use of his senses of sight and hearing in his own protection as would a person of ordinary care and prudence. That is the purport and effect of request No. 3, and in giving it there was no error.
The same cannot be said of requests Nos. 5 and 6. These instructions are objectionable in their requirements, in that they place an absolute duty upon the plaintiff, whereas he was required only to comply with the standard of ordinary care under the circumstances disclosed by the evidence. The contention of plaintiff was that the traffic light at the intersection west of the place where he was crossing the street was red at the time he looked while crossing the street. It is placing an unwarranted burden upon the pedestrian, under such circumstances, to instruct the jury that if he saw the street car, even though it may have been beyond a red traffic signal, and then proceeded to cross the street, his action was negligent as a matter of law and prevented recovery.
The plaintiff claimed that, having looked to the west and observed that traffic was blocked by the red traffic light, he directed his attention toward the east, and was watching the slowly moving west-bound car until it could pass and permit him to continue his way across the street. The fifth and sixth requests by reason of the peremptory character of the language employed do not correctly or fairly present to the jury the issue of contributory negligence.
The charge of negligence of the defendant company in the respects claimed was challenged, and upon that issue there was considerable evidence pro and con. There was very substantial evidence sustaining the position of the defendant company and refuting the claims made by the plaintiff with reference to the negligence of the defendant company. That issue was submitted to the jury without error. From the evidence, and under the instruction of the court upon that issue, the jury might well have found that the charge of negligence had not been sustained by a preponderance of the evidence, and upon that issue alone based its finding for the defendant. The verdict of the jury was general, and it is impossible to ascertain from the record that it was not based upon the jury's finding in favor of the defendant company upon the issue of negligence. Under the well-established rule applied by this court in many cases, and recently reiterated and specifically made applicable to cases of this character in the case of Knisely v. Community Traction Co., ante, 131, 180 N.E. 654, the judgment will not be reversed by reason of the error in the charge of the court upon the issue of contributory negligence of the plaintiff.
MARSHALL, C.J., JONES, DAY, ALLEN, KINKADE and STEPHENSON, JJ., concur.