In Tresise v. Ashdown, 118 Ohio St. 307, 160 N.E. 898, 58 A.L.R., 1476, it is held: "2. An instruction in such case that if the proof adduced in behalf of the plaintiff is of such character as to raise a presumption of negligence upon his part the burden rests upon the plaintiff to remove such presumption by a preponderance of the evidence places an unwarranted burden upon the plaintiff and constitutes prejudicial error.Summary of this case from Obrecht, a Minor v. Tallentire
Decided March 28, 1928.
Negligence — Collision with automobile parked in highway without rear lights — Inability to stop approaching automobile within range of headlights not negligence per se — Charge to jury — Evidence necessary to remove presumption of contributory negligence — Care usually exercised by plaintiff in operating automobile — Evidence thereof not rendered competent by absence of living eyewitness to accident.
1. In an action to recover damages for injuries claimed to have been sustained by the driver of a motor vehicle resulting from a collision with another motor vehicle parked at the right side of the highway at night with no light in the rear or other warning thereof, an instruction to the jury, that operation of such motor vehicle at such a rate of speed that the driver cannot stop within the distance that an obstruction in the highway could be seen by his own headlights constitutes negligence per se, is erroneous.
2. An instruction in such case that if the proof adduced in behalf of the plaintiff is of such character as to raise a presumption of negligence upon his part the burden rests upon the plaintiff to remove such presumption by a preponderance of the evidence places an unwarranted burden upon the plaintiff and constitutes prejudicial error. He is only required to produce evidence sufficient to counterbalance the evidence giving rise to the presumption; it need not overbalance or outweigh it.
3. The fact that there is no living eye witness of such accident does not make competent evidence tendered on behalf of the plaintiff tending to show the care usually exercised by the decedent in the operation of his motor vehicle.
ERROR to the Court of Appeals of Cuyahoga county.
This action originated in the court of common pleas of Cuyahoga county. Catherine Ashdown, as administratrix of the estate of James Ashdown, brought suit against Ralph E. Tresise to recover damages for the death of decedent, which it was claimed resulted from the negligent acts of Tresise. The negligence charged against the defendant consisted in his parking his automobile at the curb of a street in the city of Cleveland, after dark, without a red or white light on the rear thereof, and without any light visible 200 feet from the front or rear of said car, in violation of the provisions of an ordinance of said city then in force, and in failing to give any notice or warning to persons traveling on said street that his automobile was standing thereon in a dark and unlighted condition. The provisions of said ordinance No. 53569-A set up in the petition are as follows:
"Section 41. Each and every motor vehicle traveling along or standing upon the public streets or highways of the city shall display, during the period from thirty (30) minutes after sunset to thirty (30) minutes before sunrise, a red light and white light on the rear thereof, and two (2) white lights on the front thereof, one on each side of the car, the rays of which white light on the rear thereof shall shine upon and illuminate each and every part of the license number borne upon such motor vehicle, and the light of which front lights shall be visible at least two hundred (200) feet in the direction in which the said motor vehicle is proceeding or heading.
"Section 41-a. All vehicles during the period described in this section shall carry a light visible two hundred (200) feet from the front and the rear."
It is averred that, while lawfully operating over said street his motorcycle with side car attached, the plaintiff's decedent came into contact with said automobile of the defendant, and received injuries which caused his death.
The defendant answered as follows:
"Not intending to deny that on or about the 27th day of October, 1924, at about 10 o'clock in the evening, decedent, James Ashdown, while operating a motorcycle with a side car attached thereto in a northerly direction on East 111th street, struck the rear end of a parked automobile belonging to the defendant herein, and that as a result thereof the plaintiff's decedent sustained serious injuries, this defendant does deny that said accident occurred in the manner set forth in plaintiff's petition; denies that he was negligent in any of the respects claimed, and denies each and every other statement, averment and allegation in plaintiff's petition contained, not hereinbefore expressly admitted to be true."
The defendant averred that said accident and fatal injury resulted from the negligence of the decedent, in that he violated the provisions of the traffic ordinance of said city, and failed to observe the conditions of the street at the time in question, and that his injuries were caused or contributed to by his own negligence. The defendant set forth in the answer the following provisions, being portions of the same ordinance referred to in the petition:
Section 1. "Owners, operators, drivers, or persons in charge of any vehicle used, propelled or driven upon the streets of the city of Cleveland, shall conform to, and observe the following rules of the road upon all such streets, alleys, avenues and public places in said city. The word 'vehicle' means everything on wheels or runners, includes equestrians, horses hitched to a vehicle, and led horses, but this ordinance shall not be held to apply to vehicles of the fire and police departments."
Section 2. "Vehicles shall be driven in a careful manner and with due regard for the safety of pedestrians and all other vehicles."
Section 41E. "Motorcycles or motor bicycles shall always exhibit during the period while in use, from one-half hour after sunset to one-half hour before sunrise, a lamp showing a white light visible within a reasonable distance in the direction toward which the motorcycle or motor bicycle is proceeding."
A reply denied the averments of the answer. The trial resulted in a verdict for the defendant, and judgment was rendered thereon, which judgment was reversed by the Court of Appeals. The case is here for review; a motion for certification of the record having been sustained by this court.
Messrs. Dustin, McKeehan, Merrick, Arter Stewart, Mr. L.B. Davenport and Mr. Neil P. Beall, for plaintiff in error.
Messrs. Cline Patterson, for defendant in error.
There was no eyewitness to the collision which caused the death of plaintiff's decedent. A crash was heard, and immediately thereafter the plaintiff's decedent was found beside his overthrown motorcycle 10 or 15 feet ahead or northwardly from the defendant's automobile, dead, or so badly injured that he died within a few minutes. There is therefore no direct evidence as to the speed of decedent's motorcycle, the range of the headlight, or the manner in which the accident occurred; but it is conceded that the injury resulted from the collision of decedent's motorcycle with the automobile of the defendant parked near the curb. There is a direct and decisive conflict in the evidence upon the question as to whether the rear light of the defendant's automobile was on at the time of the collision. There is no dispute as to the headlight of the decedent's motorcycle, for, following the collision, it was still on.
It is urged that the trial court committed error in several respects in the instructions given to the jury. We shall first consider that having reference to the duty of plaintiff's decedent. In its general charge the court instructed the jury as follows:
"I say to you further that it was the duty of the decedent driving his motorcycle on the public highway on this night to keep it under such control that the car could be stopped within the range of the light produced from the light thereon, and it was the duty of the plaintiff's decedent to operate his car at such rate of speed that if there was an obstruction in the road or street that he could stop within the distance that the obstruction could be seen from the light on his machine."
This instruction makes it negligence per se to so drive a motor vehicle as to be unable to stop within the range of the driver's headlights upon discovering an obstruction in the highway. If such rule be invariably applied, the driver would be liable in every instance for injuries resulting from a collision at night, in the absence of contributory negligence of the other party. On the other hand, under the law as thus announced, it is difficult to conceive of any situation in which the driver of a motor vehicle would ever be entitled to recover for injuries resulting to him from a collision with any obstruction, however negligently placed or maintained in the highway. The question presented has not heretofore been decided by this court, but decisions of courts of other states have been cited which sustain the correctness of the instruction here challenged.
In our opinion, however, the better reasoning supports the view that conduct of a driver of a motor vehicle which is not shown to have been in violation of law or ordinance should not be declared to be negligence per se, but that each such case must be considered in the light of its facts and circumstances, and the usual tests applied to determine whether there was a failure to exercise ordinary care in the operation of such motor vehicle. The question presented is one of fact, and should be determined by the jury under proper instructions. The decisions supporting this rule seem to us the better reasoned cases and in harmony with the principles generally recognized and applied by this court. This view finds support in numerous decisions, including the following: Murphy v. Hawthorne, 117 Or. 319, 244 P. 79, 44 A. L. R., 1397; Hallett v. Crowell, 232 Mass. 344, 122 N.E. 264; Corcoran, Adm'x., v. City of N.Y., 188 N.Y. 131, 80 N.E. 660; Brigden v. Pirozzi, 97 N.J. Law, 535, 117 A. 602; Spiker v. City of Ottumwa, 193 Iowa 844, 186 N.W. 465; Kaufman v. Hegeman Transfer Lighterage Terminal, Inc., 100 Conn. 114, 123 A. 16; Rozycki v. Yantic Grain Products Co., 99 Conn. 711, 122 A. 717, 37 A. L. R., 582; Ham v. County of Los Angeles, 46 Cal.App. 148, 189 P. 462; Hatch v. Daniels, 96 Vt. 89, 117 A. 105; Tutsch v. Omaha Structural Steel Works, 110 Neb. 585, 194 N.W. 731.
In the Kaufman case, supra, the Supreme Court of Connecticut had before it a case which called for a consideration of the principle now under discussion, the question being the correctness of an instruction similar to that given in the instant case. That court announced its conclusion as follows:
"It is not necessarily contributory negligence, as matter of law, for the operator of an automobile to drive it in the night at such a rate of speed that he cannot stop it within the limit of his vision ahead; whether he is to be chargeable with negligence or not, depends upon what is reasonable under all the circumstances, and unless they unmistakably point to but one conclusion, the decision of that question is essentially one of fact for the determination of the trier. To hold otherwise, would force the traveler to assume that the highway was liable to be obstructed and, in view of this, to so travel that he would not collide with any obstruction in the highway however negligently that might have been created and maintained."
We therefore find that the instruction given to the jury — that the operation of a motor vehicle at such speed as not to be able to stop within the range of the rays of its headlights is negligence as a matter of law — is erroneous.
It is further complained that other instructions given by the court had the effect of minimizing the charge of negligence made against the defendant, and of stressing and unduly emphasizing the negligence charged against the plaintiff's decedent, not only by numerous emphatic references to the latter, but by an unusual and illogical statement of the issues of negligence and contributory negligence. This portion of the general charge is as follows:
"Now, ladies and gentlemen, you will proceed with the consideration of all the evidence in this case. As I have said to you before — if from a fair and impartial consideration in this case you find that the plaintiff's decedent was negligent or that he was guilty of contributory negligence and that the negligence of the decedent was the proximate cause of this injury or accident, or that his negligence contributed in any manner to his injury or the accident, then I say to you that would end your consideration of the case and your verdict should be for the defendant. But if upon consideration of these issues of the case you should find in favor of the plaintiff, that the plaintiff's decedent was free from negligence, any negligence that contributed to the accident, then you will pass to the next issue and that is was the defendant negligent as charged in the petition? If you find that the defendant was negligent in violating the provisions of these ordinances and statutes which I have read to you and that this violation on the part of the defendant was the proximate cause of decedent's injury then you should find upon that issue in favor of the plaintiff and against the defendant, and your verdict should be for the plaintiff and against the defendant."
In any case, and particularly in a case such as this, in which the issues are so sharply drawn and the evidence circumstantial, there being no direct evidence of the collision, it was particularly essential that the court should instruct the jury in such a manner as to avoid the placing of an unwarranted burden upon either party. It can readily be seen that this very manner of presenting the issues to the jury would have the effect of indicating to the jury an opinion of the court that the circumstances presented a case in which they need not even consider the first and primary issue — the negligence of the defendant. The charge tended to take from the jury the consideration of the issue of defendant's negligence, and the error did not relate merely to the single issue of contributory negligence; hence the doctrine of Sites v. Haverstick, 23 Ohio St. 626, and subsequent cases based thereon, has no application.
The error above pointed out is emphasized by the later statement of the court in the general charge with reference to the burden of proof, where the court said:
"The burden of establishing negligence or contributory negligence as a defense rests upon the defendant, unless the proof adduced in behalf of the plaintiff is of such character as to raise a presumption of negligence on his part, in which case the burden rests upon the plaintiff to remove such presumption by the preponderance of the evidence before he or she would be entitled to recover."
It has long been established in this state that, if the plaintiff's evidence shows an injury by defendant's negligence, and does not raise an implication that his own negligence contributed thereto, the burden of proving such contributory negligence as will defeat a recovery rests upon the defendant, and that burden must be sustained by a preponderance of the evidence. However, if plaintiff's own testimony raises a presumption of contributory negligence upon his part, the burden of proof does not shift, and he is not required to remove such presumption by a preponderance of the evidence, but is only required to furnish such proof as is sufficient merely to equal or counterbalance the evidence tending to show contributory negligence on his part. B. O. Rd. Co. v. Whitacre, 35 Ohio St. 627; Columbus Ry. Co. v. Ritter, 67 Ohio St. 53, 65 N.E. 613; Klunk v. Hocking Valley Ry. Co., 74 Ohio St. 125, 77 N.E. 752; Maddex v. Columber, 114 Ohio St. 178, 151 N.E. 56; Toledo, St. L. W. R. R. v. Star Flouring Mills Co., 146 F., 953, 77 C.C.A., 203.
In the Ritter case, supra, on page 59 (65 N.E. 614), the court says:
"The court erroneously placed upon the plaintiff below, the burden of disproving contributory negligence charged in the answer, as a part of her case in chief. Such has never been the law in this state."
The rule with reference to the requirement of adducing evidence to meet a presumption, and the obligation devolving upon the party against whom the presumption exists, is well stated in the case of Klunk v. Railway Co., supra, although the court was there dealing with a statute providing, in substance, that, if an employee of a railroad company shall receive an injury by reason of a defect in any car, locomotive, or machinery owned and operated by it, the company shall be deemed to have had knowledge of such defect, and that, when the fact of such defect is made to appear in an action for damages by reason of such injury, the same shall be prima facie evidence of negligence of the company. The court had under consideration a charge of the trial court imposing upon the company the obligation of producing a preponderance of evidence in order to meet and rebut the prima facie presumption of negligence raised against it by the statute, and the court, at page 133 (77 N.E. 754), clearly laid down the rule which is applicable here. It is as follows:
"The general rule would seem to be well established by an almost unbroken line of authority — that to rebut and destroy a mere prima facie case, the party upon whom rests the burden of repelling its effect, need only produce such amount or degree of proof as will countervail the presumption arising therefrom. In other words, it is sufficient if the evidence offered for that purpose, counterbalance the evidence by which the prima facie case is made out or established, it need not overbalance or outweigh it."
The instruction above quoted was therefore erroneous.
Counsel for plaintiff below tendered evidence tending to prove that the decedent's habit and custom was to be careful in driving his motorcycle, upon the theory that such evidence is competent where there are no eyewitnesses of the accident. It does not appear that this question has ever been presented or considered in this state, but cases from other states have been cited supporting such view. These decisions are based upon the theory that such evidence tends to aid the presumption of self-preservation, because a person is more likely to do what he is in the habit of doing under the same conditions.
Evidence tending to show that the one party usually and habitually exercised care in having the lights of his automobile turned on when parked on the highway at night would certainly be as competent as evidence that the other party usually exercised care in the operation of his motorcycle. The presumption exists that each party was in the exercise of ordinary care, and that neither was negligent, and each party has the benefit of such presumption.
In our opinion, the trial court was right in rejecting the evidence of conduct upon other occasions, or the manner of driving generally. However, for the errors of the trial court in instructing the jury, as above discussed, the judgment of the court of Appeals reversing the judgment of the court of common pleas is affirmed.
MARSHALL, C.J., DAY, ALLEN, KINKADE, ROBINSON and JONES, JJ., concur.