holding that "[o]rdinarily, one need not look for danger unless there is a reason to expect it"Summary of this case from Abounader v. Gohlstin
Decided December 30, 1970.
Negligence — Motor vehicles — Intersection collision — Vehicle turning left — Failure to yield right of way — R.C. 4511.01 (TT) — Contributory negligence not applicable, when.
APPEAL from the Court of Appeals for Geauga County.
Frederick Deming, plaintiff-appellee, initiated this action against Jenny G. Osinski, defendant-appellant, to recover damages arising from a collision between plaintiff's motorcycle and defendant's automobile at an intersection.
The testimony revealed that, at the intersection of U.S. Route 322 and state Route 306, U.S. Route 322, an east-west highway, consists of three lanes, including a left-turn lane, and state Route 306 has two lanes going north and south. The weather was warm, sunny and dry. Plaintiff was travelling westerly on U.S. Route 322 and from a considerable distance he noticed that he had the green light.
Proceeding on his motorcycle at a rate of 33-35 miles per hour in an area where the prima facie speed was 35 miles per hour, he observed from a distance of 250 to 300 feet the defendant's car approaching the intersection from the west, in the left-turn lane. Subsequently, at a point east of the intersection, the plaintiff glanced southerly toward the bay area of a gasoline service station located on the southeast corner of the intersection; he recognized a friend working in the bay, observed a clock in the window of the station and noted the exact time. When he again looked toward the intersection, he noticed that he was 20 to 30 feet from the defendant's automobile which was in the process of turning left. Unsuccessfully, he attempted to avoid the collision. At the conclusion of the testimony the defendant admitted negligence.
The judge instructed the jury on the question of plaintiff's contributory negligence. A verdict was rendered for the defendant, and judgment was entered upon the verdict. The Court of Appeals reversed. The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Leonard Saltzer, for appellee.
Messrs. Thrasher, Dinsmore, Dolan Svete and Mr. James W. Dinsmore, for appellant.
The issue raised by this appeal is whether, as a matter of law, the trial court properly instructed the jury on contributory negligence. We think that it did not.
"The operator of a vehicle, streetcar, or trackless trolley intending to turn to the left shall yield the right of way to any vehicle, streetcar, or trackless trolley approaching from the opposite direction."
R.C. 4511.01 (TT) states:
"`Right of way' means the right of a vehicle, streetcar, trackless trolley, or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or he is moving in preference to another vehicle, streetcar, trackless trolley, or pedestrian approaching from a different direction into its or his path."
In ruling upon the plaintiff's motions for judgment notwithstanding the verdict and new trial, the trial judge stated:
"Ordinarily one need not look for danger unless there is the reason to expect it. Plaintiff was entering a large, moderately-heavy-traffic intersection. Defendant had her signal lights on and was in the turning lane. Plaintiff is required to look, look effectively and continue to look and otherwise remain alert. This is particularly so when defendant's intention to turn was unmistakable. If he did not do so, he could be held contributorily negligent."
Such a requirement that plaintiff "look, look effectively and continue to look and otherwise remain alert" completely ignores our decision in Morris v. Bloomgren (1933), 127 Ohio St. 147. Although the situation in Morris involved the requirement of a vehicle to yield the right of way at a highway intersection to a vehicle approaching from the right, the same reasoning employed in that decision is applicable to the present case.
The syllabus of Morris states:
"1. Sections 6310-28 and 6310-28 a, General Code, are cognate sections, pertaining to the right of way at highway intersections, and should be together construed. One section requires the operator of a vehicle to yield the right of way at highway intersections to a vehicle approaching from the right, and the other defines `right of way' as the right `to proceed uninterruptedly in a lawful manner in the direction in which it is moving' in preference to another vehicle approaching into its path from a different direction. Construed together these sections confer an absolute right of way upon the vehicle approaching from the right, qualified only by the requirement that, in proceeding uninterruptedly, it must proceed in a lawful manner.
"2. The expressions and implications contained in the cases of Heidle v. Baldwin, 118 Ohio St. 375, and Geo. Ast Candy Co. v. Kling, 121 Ohio St. 362, by denying the vehicle approaching from the right its statutory privilege of proceeding uninterruptedly if it proceeds in a lawful manner, and by placing the drivers of both vehicles upon an equal plane in approaching an intersection and relegating both to the rules of care existing at common law, entirely ignore the preferential status of the vehicle approaching from the right and the servient status of the other vehicle. ( Heidle v. Baldwin, 118 Ohio St. 375, and Geo. Ast. Candy Co. v. Kling, 121 Ohio St. 362, are disapproved and overruled.)
"3. The phrase `in a lawful manner,' found in Section 6310-28, General Code, is a sine qua non obligation placed upon the vehicle upon which the right of way is conferred. If such vehicle is not proceeding in a lawful manner in approaching or crossing the intersection, but is proceeding in violation of a law or ordinance, such vehicle loses its preferential status and the relative obligations of the drivers of the converging vehicles are governed by the rules of the common law.
"* * *
"5. The driver of a vehicle lawfully approaching from the right has the right to assume that the driver of the vehicle approaching from the left will obey the law by yielding the right of way. If however the former, just as he is approaching or entering the intersection, discovers that the latter is not yielding the right of way and has thereby placed himself in a perilous situation, it becomes the duty of the former to use ordinary care not to injure the latter after becoming aware of his perilous situation."
There is nothing in the record to indicate that as the plaintiff entered the intersection and was proceeding through it, he acted in an unlawful manner.
Reaffirming the position which he took in Morris, this court holds that the trial court erred, as a matter of law, by its instructions to the jury on contributory negligence. Therefore, we affirm the judgment of the Court of Appeals.
O'NEILL, C.J., SCHNEIDER, HOLMES, STERN and LEACH, JJ., concur.
HERBERT and DUNCAN, JJ., dissent.
HOLMES, J., of the Tenth Appellate District, sitting for CORRIGAN, J.