reversing judgment on verdict for defendant because of error in charge relating to negligence though jury verdict might properly have been based on finding of contributory negligence and there was no error relating to issue of contributory negligenceSummary of this case from Smith v. Flesher
Decided June 19, 1946.
Negligence — Active violation of safety legislation negligence per se — Legal excuse may preclude liability for negligence per se, when — Two-issue rule — Error in charge to jury on one independent issue, disregarded — Verdict supported by correct charge on another independent issue — Issue of contributory negligence does not arise unless defendant found negligent — Erroneous charge to jury an negligence, invalidates verdict for defendant, when — No error in charge on contributory negligence — Negligence or contributory negligence not presumed — Presumption that automobile guest, prior to collision causing death — Acting as person of ordinary care and prudence — Charge to jury on issue of contributory negligence, warranted, when.
1. Negligence per se consists of the active violation of a standard of care established by a safety legislative enactment adopted for the protection of the public, specifically describing the conduct required of one amenable thereto.
2. A legal excuse, precluding liability for injuries resulting from negligence per se in the failure to comply with a safety legislative enactment directing the manner of the operation of a motor vehicle on the public highways, must be something which makes it impossible to comply with the safety legislative enactment, something over which the driver has no control, an emergency not of the driver's making causing failure to obey the statute, or an excuse or exception specifically provided in the enactment itself.
3. The two-issue rule is, that error in the charge of the court dealing exclusively with one of two or more complete and independent issues required to be presented to a jury in a civil action will be disregarded, if the charge in respect to another independent issue which will support the verdict of the jury is free from prejudicial error, unless it is disclosed by interrogatories or otherwise that the verdict is in fact based upon the issue to which the erroneous instruction related.
4. In an action based on negligence, the issue of contributory negligence does not arise unless the issue of negligence on the part of the defendant is first found adverse to the defendant; and error in the charge of the court on the issue of negligence prejudicial to the plaintiff will invalidate a verdict for the defendant even though there was no error in the charge on the issue of contributory negligence.
5. Neither negligence nor contributory negligence is presumed. On the contrary, there is a presumption that a decedent, prior to his death caused by a collision of a vehicle of another in which he was riding as a guest, was acting as a person of ordinary care and prudence would have acted under the same or similar circumstances. To warrant the submission of the issue of contributory negligence to the jury it is essential that some evidence be adduced tending to show that the plaintiff failed in some respect to exercise the care of an ordinarily prudent person under the same or similar circumstances and that such failure was a proximate cause of his injury and resulting death.
APPEAL from the Court of Appeals of Butler county.
On the night of May 19, 1943, plaintiff's decedent, Hobart Bush, Jr., while riding in a southerly direction on state route No. 4, south of Middletown, in an automobile operated by one Crigler, was killed when the automobile crashed into the rear end of a truck owned by the Harvey Transfer Company, a motor transportation company. The truck was being operated on the same highway in the same direction by one Hopper but had come to an emergency stop due to a blown fuse extinguishing all lights on the truck.
The Harvey truck was brought to a stop on the west edge of the paved portion of the highway at a point about 300 feet south of the crest of a hill on the highway. As thus parked the truck was without lights. Hopper, who died prior to the trial of the case but whose deposition had been taken, testified in substance that the light fuse on his truck suddenly blew out, leaving the truck without lights, whereupon he moved the truck over to the edge of the pavement and stopped; and that he stuck a fusee on the rear end of his truck and was in the act of getting out his pot torches when the crash occurred.
Another truck, owned by one Stubbs but in the service of the defendant Holmes, doing business as a motor transportation company under the name of Holmes to Homes Transportation Company, and driven by one Dennis, was proceeding in a northerly direction on the same highway, and had passed the unlighted Harvey truck soon after the latter came to a stop. Dennis, the driver of the Holmes truck, observing the situation of the Harvey truck, moved by it up the road to the north a distance of approximately 200 feet where he pulled off the improved portion of the highway into a driveway and parked his truck facing in a northerly direction with lights burning.
As Dennis was parking his truck he observed the lights of the Crigler car approaching from the north when the car was from 600 to 1,500 feet away. When it was about 350 feet away he dismounted from his truck, procured a flashlight, went upon the east side of the highway from three to eight feet and attempted to wave down the approaching Crigler car. The car approached and passed him and as it passed he called out to Crigler, "watch out for that truck." Three or four seconds elapsed from the time the Crigler car passed Dennis until it crashed into the Harvey truck. Crigler, the driver of the car in which Bush was a passenger, testified that he was blinded by the headlights of the Holmes truck as he approached the Harvey truck and had turned slightly to the right just as the collision with the Harvey truck occurred. The Crigler car struck the right wheel of the Harvey truck with the center of the radiator. The impact did not throw Crigler or Bush from the car seat but the latter was killed by glass from the windshield, cutting a blood vessel in his neck.
The plaintiff, as administrator of Bush, brought this wrongful death action in the Common Pleas Court of Butler county against the Harvey Transfer Company, John H. Holmes, d. b. a. Holmes to Homes Transportation Company, and Stubbs, as defendants. The trial court, being of the view that there was no evidence connecting Stubbs with the collision, directed a verdict in his favor.
Plaintiff's third amended petition alleged that the Harvey Transfer Company at the time of the accident was operating a motor tractor with a semi-trailer whose gross weight was in excess of 3,000 pounds; that on the west side of the traveled portion of the highway at the point of accident there was a dry shoulder or berm eight feet wide; that there were other parking facilities nearby off the side of the highway; that defendant Harvey Transfer Company was negligent in the manner of parking its truck on the highway at the point in question; that it failed to place any lighted fusee on the roadway or at any place; that it neglected to place any lighted flares on the highway until long after its vehicle had been brought to a stop and after the collision had occurred; that it failed to have reflectors, visible by the light of approaching headlights, on the rear of its semi-trailer; and that it neglected to give warning of the presence or position of its truck on the highway to vehicles approaching from the north.
The third amended petition also alleged that the defendant Holmes operated his truck negligently in that he failed to have his employee become conversant with the rules of the Public Utilities Commission relating to the operation of motor vehicles under its certificates; that he left his equipment with bright lights burning on the front thereof, with such lights facing toward the vehicle in which decedent was riding as it approached from the north; that Holmes neglected to place any lighted fusee on the highway or at any place; and that as a result of the carelessness and negligence of the two defendants above named the accident which caused the injury to and death of plaintiff's decedent was brought about.
The answer of the Harvey Transfer Company to plaintiff's third amended petition admitted that the lights on its truck had ceased to burn; that its truck was thereupon brought to a stop on the west side of the highway and the berm contiguous thereto; and that shortly thereafter the Crigler car collided with the rear end of the Harvey trailer. The answer denied that the collision was caused by any negligence on the part of Harvey or on the part of its servant, agent or employee, and denied all other allegations of the petition.
The answer of Holmes admitted that the Harvey Transfer Company was negligently and carelessly managing its equipment as set forth in plaintiff's third amended petition, and that through such negligence the collision occurred, but denied all negligence on his part.
On trial of the case the jury returned a separate verdict in favor of each of the two remaining defendants, and judgment was entered in accordance with the verdicts.
On appeal, two judges of the Court of Appeals held that it was prejudicially erroneous for the trial court to give special charge number four requested by the defendant Harvey and hereinafter quoted. However, the Court of Appeals held that there was present the issue of contributory negligence and affirmed the judgment under the two-issue rule, one judge dissenting.
The plaintiff then filed a motion to certify the record of the Court of Appeals to this court, which motion was allowed.
Mr. J.T. Riley and Mr. C.W. Elliott, for appellant.
Messr. Rendigs Fry, for appellee Harvey Transfer Company. Messrs. Baden Fiehrer, for appellee John H. Holmes, d. b. a. Holmes to Homes Transportation Company.
Plaintiff contends that the trial court erred in giving to the jury before argument special requested charge number four.
The court in its general charge to the jury submitted for its consideration three specifications of alleged negligent acts on the part of the defendant Harvey Transfer Company, each of which involved claimed violations of specific statutory safety requirements. The court read to the jury Section 6307-64, General Code, as follows:
" '(a) Upon any highway outside of a business or residence district no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or leave such vehicle off such part of said highway.
" '(b) This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.' "
The court then said to the jury:
"If you find by a preponderance of the evidence that defendant Harvey Transfer Company violated the provisions of the above quoted section of law in respect to stopping, parking or leaving its equipment on the highway, then such violation of the law would be negligence in itself * * *."
The court also read to the jury from Section 6307-100, General Code, as follows:
" '(a) Whenever any motor truck, commercial tractor, trailer or semi-trailer is disabled upon the traveled portion of any highway or the shoulder thereof at any time when lighted lamps are required on vehicles, the operator of such vehicle shall display the following warning devices upon the highway during the time the vehicle is so disabled on the highway:
" '1. A lighted fusee shall be immediately placed on the roadway at the traffic side of such vehicle.' "
The court then said to the jury:
"If you find by a preponderance of the evidence that defendant Harvey Transfer Company violated the provisions of the above section of law in respect to immediately placing a lighted fusee on the roadway at the traffic side of such vehicle, then such violation of said law would be negligence in itself * * *."
The court again read to the jury from Section 6307-100, General Code, as follows:
" '2. Within the burning period of the fusee and as promptly as possible three lighted flares (pot torches) shall be placed on the roadway as follows:
" 'One at a distance of forty paces or approximately one hundred feet in advance of the vehicle, one at a distance of forty paces or approximately one hundred-feet to the rear of the vehicle, each in the center of the lane of traffic occupied by the disabled vehicle, and one at the traffic side of the vehicle.' "
The court then said to the jury:
"If you find by a preponderance of the evidence that defendant, Harvey Transfer Company, violated the provisions of the above quoted law in respect to placing as promptly as possible three lighted flares on the roadway, then such violation of said law would be negligence in itself * * *."
The court in its general charge submitted for the consideration of the jury a single specification of alleged negligent acts on the port of the defendant Holmes which involved the claimed violation of specific statutory requirements relating to the leaving of bright lights burning an the front of his parked truck.
Before argument, the court had given special charge number four which was as follows:
"I charge you that where one without fault of his own is placed in a situation of sudden emergency he is not to be held to the exercise of the same care and circumspection that is required of one who is acting under normal conditions where no emergency is present. The test to be applied is, whether or not the person in such a situation of sudden emergency did or attempted to do what a reasonably prudent person would have done under the same or similar circumstances.
"If, therefore, you find from the evidence in this case that the driver of the Harvey Transfer Company truck, Hobart Hopper, without fault of his own, was placed in a situation of sudden emergency and that while in such a situation he did or attempted to do what any reasonably prudent person would have done under the same or similar circumstances, then he was not negligent." (Italics ours.)
The court, by this special charge, attempted to state what the law required the driver of the Harvey truck to do when his truck became disabled on the public highway. Two members of the Court of Appeals were of the opinion that the special charge was erroneous and prejudicial to the plaintiff. This court concurs in this view.
Since the failure to comply with the provisions of a safety statute constitutes negligence per se, a party guilty of the violation of such statute cannot excuse himself from compliance by showing that "he did or attempted to do what any reasonably prudent person would have done under the same or similar circumstances." A legal excuse, precluding liability for injuries resulting from the failure to comply with the statutory requirements respecting the operation of a motor vehicle on the public highways, must be something that would make it impossible to comply with the statute, something over which the driver has no control, an emergency not of the driver's making causing failure to obey the statute, or an excuse or exception specifically provided in the statute itself. The instruction of the court in the instant case substituted the rule of ordinary care for the specific requirements of the statute. It made the duty of the defendant Harvey Transfer Company the same as it would have been had the statute not been enacted. Kormos v. Cleveland Retail Credit Men's Co., 131 Ohio St. 471, 3 N.E.2d 427. See Matz, Admr., v. J. L. Curtis Cartage Co., 132 Ohio St. 271, 275, 7 N.E.2d 220; Swoboda v. Brown, 129 Ohio St. 512, 522, 196 N.E. 274; Simko v. Miller, 133 Ohio St. 345, 13 N.E.2d 914; Kohn, Admx., v. B. F. Goodrich Co., 139 Ohio St. 141, 146, 38 N.E.2d 592; Satterthwaite v. Morgan, Jr., 141 Ohio St. 447, 48 N.E.2d 653; Kadlec v. Al Johnson Construction Co., 217 Iowa 299, 252 N.W. 103; Schwind, Jr., Admr., v. Gibson, 220 Iowa 377, 260 N.W. 853; Young v. Hendricks, 226 Iowa 211, 283 N.W. 895; Andrew v. White Bus Line Corp., 115 Conn. 464, 161 A. 792; Giancarlo v. Karabanowski, 124 Conn. 223, 198 A. 752.
In the case of Simko v. Miller, supra, this court held:
"Where contributory negligence is an issue, a charge that if the parties 'failed to observe the duties imposed upon them in the exercise of ordinary care,' such failure would be negligence, is prejudicial to a defendant, if the court fails to differentiate between a violation of the duties imposed by common law and those imposed by statutes, the violation of which is negligence per se."
Notwithstanding that two judges of the Court of Appeals in the instant case found error in the special charge to the jury, the court held that the issue of contributory negligence on the part of plaintiff's decedent was properly submitted and that "since no interrogatory was submitted to test the general verdict, the two-issue rule must apply" and "the judgment is affirmed."
Plaintiff challenges the judgment of the Court of Appeals in this respect, claiming first that the two-issue rule has no application and second, that there was no evidence to support the claim of contributory negligence on the part of plaintiff's decedent.
The two-issue rule had its origin in this state in the decision of the case of Sites v. Haverstick, 23 Ohio St. 626, where it was applied to sustain a verdict for the defendants since there were two separate and distinct defenses made, either one of which in itself, if established, was sufficient to defeat the cause of action of the plaintiff.
This court in that case took the position that the general verdict in favor of the defendants carried the implication that the jury found the issues as to both defenses in favor of the defendants, and that an error in the charge of the court touching the validity of the issue made by one of such defenses did not invalidate the general verdict.
That the rule is applicable where two separate and independent issues are present and involved in the determination of the litigation before the court is indicated by the language of the opinion in the case of H. E. Culbertson Co. v. Warden, 123 Ohio St. 297, 175 N.E. 205, as follows:
"This rule as generally applied is that, where there are two causes of action or two defenses, thereby raising separate and distinct issues, and a general verdict has been returned, and the mental processes of the jury have not been tested by special interrogatories to indicate which of the issues was resolved in favor of the successful party, it will be presumed that all issues were so determined; and that, where a single determinative issue has been tried free from error, error in presenting another issue will be disregarded."
Plaintiff claims that before two issues can meet the standard set by the above definition, they must fall within one of the following two classes: (1) They must be independent and separate issues, neither of them being an element of or dependent on the other, as in the case of Sites v. Haverstick, supra; or (2) if the two issues constitute both a primary and secondary issue, the latter dependent upon the former, the rule may be applied if the primary issue is submitted free from error and the secondary issue is erroneously submitted, but that the rule cannot be applied conversely.
The defense of contributory negligence does not become applicable in the absence of proof of negligence on the part of the defendant. Contributory negligence on the part of a plaintiff presupposes or implies negligence on the part of the defendant. The former cannot exist without the latter. Cincinnati Traction Co. v. Forrest, 73 Ohio St. 1, 75 N.E. 818; Cincinnati Traction Co. v. Stephens, Admr., 75 Ohio St. 171, 79 N.E. 235; Hoyer, Admx., v. Lake Shore Electric Ry. Co., 104 Ohio St. 467, 135 N.E. 627; Payne, Dir., v. Vance, 103 Ohio St. 59, 133 N.E. 85.
The jury must first consider whether the defendant was negligent. If it finds the defendant was not negligent there is no further issue to be considered. In the submission of the instant case to the jury, the court properly charged that, "if you find neither one of the defendants separately or both of them together were so negligent, then you need proceed no further but your verdict must be for the defendants."
Before contributory negligence of the plaintiff may be considered, the jury must find the defendant was negligent, and if there is such error in the charge as prevents the jury from finding the defendant negligent, a secondary issue of contributory negligence does not arise. If, for instance, a charge was such as to amount to a directed verdict for the defendant and the jury renders a verdict for the defendant, there is no opportunity to consider a further issue of contributory negligence.
It has been held that where the issue of negligence is correctly submitted but an error occurs in the submission of the issue of contributory negligence, a verdict for defendant may stand because it may rest on a finding of no negligence. 29 Ohio Jurisprudence, 763, Section 220; Knisley v. Community Traction Co., 125 Ohio St. 131, 180 N.E. 654; Kihlken, Admr., v. Barber, 129 Ohio St. 485, 196 N.E. 164. But where the issue of negligence is erroneously submitted, as in the case at bar, a verdict for defendant cannot logically stand on the theory that it rests on contributory negligence, for a finding on the issue of negligence, tainted by the influence of erroneous charge, is an element in the finding on the issue of contributory negligence. In other words, if the error in the charge on the issue of negligence may bring about a negative answer to the question of defendant's negligence to the prejudice of the plaintiff, no consideration of the issue of contributory negligence could circumvent the error. The principle is enunciated in the case of Cowley et al., d. b. a. Shaker Heights Motor Sales Co., v. Bolander, 120 Ohio St. 553, 557, 166 N.E. 677.
Since the decision of the case of Sites v. Haverstick, supra, in 1873, this court has cited or approved it approximately two dozen times but in no instance has the rule adopted in that case been applied in negligence cases where prejudicial and reversible error occurred in the submission of the issue of negligence and not in the issue of contributory negligence. It is true that in the case of Knisley v. Community Traction Co., supra, this court, in sustaining a verdict for the defendant, held that defendants' negligence and plaintiff's contributory negligence constituted separate and distinct issues to which the two-issue rule may be applied; but it is to be noted that in that case the error related exclusively to the issue of contributory negligence and not to the issue of negligence.
Even if the two-issue rule could be applied in the instant case on the theory that the issue of contributory negligence had been submitted without error, this court is of the opinion that there was no substantial probative evidence offered by the defendants to support the charge of contributory negligence on the part of the plaintiff.
In the first place, the plaintiff was clothed with certain presmptions in his favor. Negligence is never presumed. Columbus Hocking Coal Iron Co. v. Tucker, 48 Ohio St. 41, 26 N.E. 630, 12 L.R.A., 577, 29 Am. St. Rep., 528; Chicago Ornamental Iron Co. v. Rook, Admr., 93 Ohio St. 152, 112 N.E. 589; Scovanner v. Toelke, 119 Ohio St. 256, 163 N.E. 493. On the contrary, the presumption exists that each party in an action based on negligence was in the exercise of ordinary care. Cleveland, Columbus Cincinnati Rd. Co. v. Crawford, Admr., 24 Ohio St. 631, 15 Am. Rep., 633; Pittsburgh, Cincinnati St. Louis Ry. Co. v. Fleming, 30 Ohio St. 480; Huff v. Austin, 46 Ohio St. 386, 21 N.E. 864, 15 Am. St. Rep., 613; Schweinfurth, Admr., v. C., C., C. St. L. Ry. Co., 60 Ohio St. 215, 54 N.E. 89; Norris, Exrx., v. Jones, Recr., 110 Ohio St. 598, 144 N.E. 274; Maddex v. Columber, 114 Ohio St. 178, 151 N.E. 56; Tresise v. Ashdown, Admr., 118 Ohio St. 307, 160 N.E. 898, 58 A. L. R., 1476; Martin, Jr., v. Heintz, 126 Ohio St. 227, 184 N.E. 852. Negligence and contributory negligence are governed by the same rule. Neither is presumed. There is a presumption that a decedent, prior to his death caused by a collision of a vehicle of another in which he was riding as a guest, was acting as a person of ordinary care and prudence would have acted under the same or similar circumstances. 29 Ohio Jurisprudence, 627, Section 150; Pittsburgh, Cincinnati St. Louis Ry. Co. v. Fleming, supra; Interurban Ry. Terminal Co. v. Hines, Admr., 13 C. C. (N.S.), 168, 22 C. D., 355 (affirmed 84 Ohio St. 493, 95 N.E. 1150); Snyder, Admx., v. American Cigar Co., 22 C. C. (N.S.), 45, 33 C. D., 440 (affirmed 81 Ohio St. 568, 91 N.E. 1139); York, Admx., v. Pennsylvania Rd. Co., 73 Ohio App. 323, 56 N.E.2d 241 (appeal dismissed, 142 Ohio St. 636, 53 N.E.2d 646). To warrant the submission of the issue of contributory negligence to the jury it is essential that some evidence be adduced tending to show that the plaintiff failed in some respect to exercise the care of an ordinarily prudent person under the same or similar circumstances, and that such failure was a proximate cause of his injury and resulting death.
Although it is true that a guest in an automobile driven by another is not chargeable with the driver's negligence, he is, nevertheless, under the duty to exercise ordinary care to avoid injury. What conduct is required to comply with this duty must depend upon all the circumstances, a most important one being that he is merely a guest having no control over the management and operation of the vehicle in which he is riding. Toledo Railways Light Co. v. Mayers, 93 Ohio St. 304, 112 N.E. 1014. See annotation 18 A. L. R., 309; 41 A. L. R., 767; 47 A.L.R., 293; 63 A. L. R., 1432, and 90 A. L. R., 984.
As a general rule, one who is merely a guest in an automobile may rely to some extent, though not absolutey, upon the driver to exercise reasonable care to avoid danger, and, in the absence of unusual circumstances, a guest is not guilty of contributory negligence if he relies upon the skill and ability of the driver and does not take active steps to see that the vehicle is properly operated. Ordinarily, it is not the province or even proper for a guest to warn or interfere with the driver until he discovers that the driver is unskillful, reckless, or has failed to perceive impending danger. Lehigh Valley Rd. Co. v. Emens, 231 F., 636; Clarke v. Connecticut Co., 83 Conn. 219, 76 A. 523.
What was the evidence relied upon by the defendants to remove the presumption above mentioned and to carry the burden of proof on the issue of contributory negligence? There was evidence that Crigler and Bush had each had two glasses of beer before they entered upon the trip southward on the Middletown-Hamilton highway, but there was no evidence of drunkenness on the part of either one of them, or any reckless driving by Crigler. The evidence was that Crigler was driving on a smooth, slightly downgrade highway paved to the width of 22 feet. Crigler testified that he was driving at the rate of 30 to 35 miles per hour whereas Dennis, the driver of the Holmes car, said Crigler's car was moving at the rate of 40 miles per hour. This was not an unlawful speed nor was it an unreasonable speed under the circumstances then apparent to the driver or his guest. The uncontradicted testimony of Crigler was that while the lights of the Holmes truck blinded him, he slowed up and veered to the right side of the highway away from the bright lights on the east side of it. There was no evidence that Bush, who was seated on the right side in the front seat of the Crigler car on the opposite side from the Holmes truck, saw any signals given by Dennis or that he heard Dennis call out as the Crigler car passed the Holmes truck. Bush said nothing to Crigler and there was no evidence of circumstances which would impose any duty to do so. Crigler, as driver of the car, violated the assured-clear-distance-ahead rule, but this negligent act could not be imputed to Bush. The latter was subject to the common-law rules of negligence and his duty to caution Crigler concerning the operation of the car did not arise, if at all, until, in the exercise of due care for his own safety, danger became apparent. The Hocking Valley Ry. Co. v. Wykle, Jr., 122 Ohio St. 391, 171 N.E. 860. No danger seemed to be apparent until an instant before the crash came. The testimony is that the elapsed time between the passing of the Holmes truck and the crash was but three or four seconds, and is to the effect that the collision did not force either Crigler or Bush from their seats.
The state of the evidence, as we see it, left the jury at best nothing more than a guess as to whether Bush failed to exercise due care under the circumstances. If the evidence places an issue in equipoise or renders one of two theories of conduct of the plaintiff — neglect or due care — as probable as the other, there can be no finding of negligence. Stevens v. Industrial Commission, 145 Ohio St. 198, 61 N.E.2d 211.
Considering that Bush was a guest and not the operator of the car in which he was riding, we see no substantial probative evidence of negligence on his part which proximately contributed to his injury and death. In our opinion, there was no evidence to support the issue of contributory negligence and that that issue should not have been submitted to the jury.
The erroneous charge of the court, special charge number four, was prejudicial to the plaintiff, but it related only to the claim of the plaintiff against the defendant the Harvey Transfer Company. It had nothing to do with the finding and separate verdict of the jury in favor of the defendant Holmes. Therefore, the judgment in favor of the defendant Holmes is affirmed, but the judgment in favor of the defendant, the Harvey Transfer Company, is reversed and the cause is remanded to the Common Pleas Court for a new trial in accordance with this opinion.
Judgment affirmed in part and reversed in part and cause remanded.
ZIMMERMAN, TURNER and MATTHIAS, JJ., concur.
I concur in paragraphs one and two of the syllabus and in the judgment. Even if we assume the driver of the automobile in which decedent was riding to have been guilty of negligence, such negligence could not have been imputed to the decedent. He is presumed to have been free from negligence. The entire court (with the exception of the Chief Justice) having concluded that there is no substantial evidence in the record upon which an issue of contributory negligence could have been properly submitted to the jury, that conclusion requires the reversal of the judgment and the awarding of a new trial and makes unnecessary any consideration of the two-issue rule.
WILLIAMS, J., concurs in the foregoing concurring opinion.
Both lower courts held that under the evidence in this record it was proper to charge the jury on the subject of contributory negligence. The matter was well stated by the trial court in its opinion as follows:
"Applying the facts of this case to the well established law as above quoted, we find that a dangerous situation must have been made manifest to plaintiff's decedent by Dennis waving his flash light in the middle of the road trying to flag the automobile in which Bush was riding. Since Crigler's testimony shows that Bush was awake and looking straight ahead the only fair inference that could be drawn is that Bush must have seen the flash light signal. Since the undisputed facts are that Dennis shouted a loud warning as the car passed him, we do not have to even infer that Crigler and Bush heard the warning but the fact they did hear it is certain.
"Since the flash light warning was given several hundred feet away and the shout of caution given approximately two hundred feet away from the defendant's parked truck, it is also certain that Bush had adequate opportunity to warn the driver or to control the situation or to exercise his senses for his own protection. The fact that Crigler testifies positively that Bush gave no warning even though he was looking ahead at the time and didn't tell him to stop or call his attention to the danger clearly shows that Bush permitted the driver of the car to take him into a place of danger without doing anything for his own protection.
"We have not been able to find another case in which the facts show so conclusively that the passenger and the driver of the car joined in testing a danger they both knew to exist.
"If Crigler and Bush had not been testing a danger they could have stopped the car upon seeing the flash light signal before the car even reached Dennis. And assuming they did not see the flash light signal they had ample time to stop the car or turn the car to the left side of the road to pass the truck before they came to the truck since the evidence shows there was no other traffic on the road. Even with proper warning within fifty or sixty feet of the truck Crigler could have turned his car to the left of the truck.
"The cases cited by plaintiff on this point have no application since in all of them the evidence failed to show any facts indicating incompetence, unsuitability or drinking of the driver and also fail to show any manifest danger to the passenger with an adequate opportunity for the passenger to do something about it."
If, as this court has held consistently, the defendants' negligence and the plaintiff's contributory negligence still are to be regarded as separate issues, it would seem that the rule clearly should be applied under the circumstances of this case. Counsel concededly failed to take advantage of the opportunity to test the jury's verdict by submitting interrogatories, and there is nothing in the record to indicate that the jury's verdict for the defendants was not the result of finding the defendants and the plaintiff's decedent all guilty of negligence. If the jury did so find, wherein could the plaintiff be prejudiced by error in the charge on the separate issue of the defendants' negligence?