Meizner, Admr. v. Coblitz , 39 Ohio App. 20 ( 1930 )

On May 19, 1929, John Meizner, a man about 62 years of age, was killed by an automobile driven by W.G. Coblitz, near a gas filling station conducted by one Hallier on the main highway running from Port Clinton to Oak Harbor, about three miles east of the latter city.

At the time the fatality occurred Coblitz was attempting to pass a bread truck parked on the highway, and, the road being slippery, his automobile skidded and struck the deceased, inflicting the fatal injury. Alfred Meizner, as administrator of the decedent, brought an action for wrongful death in the court of common pleas against W.G. Coblitz and the Sherlock Baking Company. Coblitz failed to appear and make defense and the jury returned a verdict against him for $3,000. At the conclusion of the opening statement to the jury, made by counsel for the plaintiff, the court sustained a motion to direct a verdict for the defendant Sherlock Baking Company. This proceeding in error is brought by the administrator seeking a reversal of the judgment entered in favor of the Sherlock Baking Company upon the directed verdict. The sole question presented is whether or not the trial court erred in sustaining the motion.

From the opening statement of plaintiff's counsel the following facts appear: The Sherlock Baking Company drove its truck westerly along the highway and parked it over to the left, or south side, facing in a westerly direction, so that the southerly wheels of the truck stood about as far from the edge of the paved portion of the highway as the northerly wheels which were on the paved portion thereof. The truck was therefore on the wrong side of the road. At the same time, Meizner was afoot on the north side of the highway, and north of the paved portion thereof. The Coblitz car approached from the west, and the driver of the car, seeking to pass the truck, turned first to go by it on the right, and then, seeing that he could not get by that way, turned to the left to avoid hitting the truck, or to pass it, and by reason of the fact that the driver turned to avoid the truck the automobile skidded on the paved portion of the road, which was wet and slippery, and as it swung around it side-swiped Meizner and knocked him down, and he sustained injuries which resulted in his death. We quote from the statement of plaintiff's counsel, near the conclusion thereof: "We expect the testimony will clearly show that The Sherlock Baking Company were negligent in parking their automobile on the left side of the highway where they had no right to park under the law, and that Mr. Coblitz, had it not been for this car being parked where it had no right, — where it was parked unlawfully, — would have proceeded right on down the highway and no injury would have resulted; but because of the fact that this automobile was parked there in an unlawful place and because of the fact that the pavement was slippery that Coblitz lost control of his car and killed Mr. Meizner."

Under Section 6310-26, General Code, it is unlawful to park an automobile or truck facing in a direction other than the direction of travel on that side of the highway. The bread truck was therefore parked in violation of a statute enacted for the public safety, and in so parking its truck the Sherlock Baking Company was guilty of negligence per se. It is contended, however, by defendant in error Sherlock Baking Company, that such negligence could not have been a proximate cause of decedent's death, nor could it have directly contributed thereto. Like most opening statements, that made by plaintiff's counsel was somewhat general in its nature, and did not recite in detail the facts and circumstances surrounding the transaction, but counsel did make it clear that he would adduce testimony which would show that the unlawful parking of the truck upon the highway directly contributed to produce decedent's death, and that without such act the death would not have occurred.

It has been held that, where one unlawfully parks a truck upon a highway so as to constitute negligence, and another person approaches in an automobile under such circumstances that to avoid the truck he is compelled to veer his car, and, in so doing, it skids and thereby inflicts injury upon another, it is a question of fact for the jury under instructions as to the law whether or not the truck owner's negligence in unlawfully parking his truck was a proximate cause of the injury. Knight v. Wessler,67 Utah 354, 248 P. 132; Winsky v. DeMandel, 204 Cal. 107,266 P. 534. We also call attention to the following: Shafir v.Sieben, (Mo.Sup.), 233 S.W. 419, and annotation in 17 A.L.R., 637; Keiper v. Pacific Gas Electric Co., 36 Cal. App. 362,172 P. 180; Brooks v. Menaugh, (Mo. Sup.), 284 S.W. 803; Strother v. Kansas City, 316 Mo., 1067,296 S.W. 795.

So far as plaintiff's statement sets forth the facts, it clearly appears that the question of proximate cause was a mixed question of law and fact. What the evidence may show on retrial we do not know. When the facts of the transaction are adduced, the question will again be presented, and whether a directed verdict will then be required is a question for future determination.

For the prejudicial error in directing a verdict, the judgment in favor of the defendant company will be reversed, and the cause remanded for a new trial as to such defendant.

Judgment reversed and cause remanded.

LLOYD and RICHARDS, JJ., concur.