Bush v. Harvey Transfer Co. , 43 Ohio Law. Abs. 612 ( 1945 )

ROSS, J.,

(dissenting).

I dissent from the opinion and judgment of my associates, for the reason that the verdict in this case constitutes one of the most glaring miscarriages of justice to be found in the books. That verdict was not only clearly against the manifest weight of the evidence, but, if predicated upon contributory negligence of the decedent guest passenger, as it undoubtedly was, as will later herein appear, was wholly unsupported by any evidence.

Even if the scintilla rule were still in existence in Ohio, the evidence would fail to justify the submission of the issue of contributory negligence to the jury. These statements are made only after a careful examination of the record and are irresistible conclusions demanded by the facts presented.

Kenneth Crigler, a young man 23 years of age, married some two years, steadily employed, on May 19, 1943, at about 8:15, P. M., in company with his wife, who was then pregnant, drove to the home of the decedennt Hobart Bush. Mr. and Mrs. Crigler and Mr. and Mrs. Bush then drove to a moving picture theatre in the City of Middletown, where all of these parties resided. Crigler did the driving. The ladies went into the theatre, and Crigler and Bush drove to a place known as the Smile Restaurant, where they had two glasses of 3.2 beer. Crigler and Bush had become acquainted some time before, both being employed at the same plant. They had driven together in Crigler’s automobile a number , of times previously, Crigler driving. Bush had brought Crigler to his home a number of times for meals. There is nothing in the record to disclose that Bush did not have perfect confidence in the ability of Crigler to operate his automobile. Crigler had been driving automobiles eight years.

After staying at the Smile restaurant, talking for about an hour, Crigler and Bush drove to a place known as the Airport Inn, where they neither ate nor drank anything. They played a pinball machine for some time and then left at about 9:45 P. M., driving toward LaSourdesville, proceeding southwardly on Route 4, Crigler still driving.

' As the Crigler car passed over the brow of a hill, the bright lights of a truck, apparently approaching from the south, were observed by Crigler, who states he was blinded by their glare and that he applied the brakes of the car, swerving' toward the right of the road, where it crashed into a truck of the Harvey Transfer Co., parked on the highway with no lights. Bush was killed. Crigler is the only witness of what occurred in his automobile. He states that Bush was sitting at his side, and that he did nothing and said nothing just before the crash. An officer who appeared shortly after the collision stated he detected the odor of beer on Crigler’s breath.

The Harvey truck and trailer at about 9:3.0, P. M., was being driven by Hobart Hopper (who died' in March, 1944, his deposition having been taken in July, 1943) southwardly on Route 4 and was stopped by Hopper at the place of collision, because all of the lights on the truck were suddenly extinguished because a fuse had burned out. Hopper stopped the truck on the paved portion of the highway, being afraid to move over to the wide berm, because of the darkness. He stated he “got a fusee and stuck it on the back of the trailer.” While getting out his “torches” the collision occurred. In this connection it is apparent that Hopper wholly failed to carry out the specific requirements of §6307-100 GC, which requires that when such mobile equipment is stopped— “1. A lighted fusee shall be immediately placed on the roadway at the traffic side of such vehicle” etc. (Emphasized added.) “2. Within the burning period of the fusee and as promptly as possible, three lighted flares (pot torches) or three electric lanterns shall be placed on the roadway” etc. Hopper did none of these things, and it is clearly apparent that his failure to do so constituted negligence per se and was a definite contributing cause to the death of Bush.

Now as to the testimony of Russell Dennis, the driver of the Holmes Transportation Co. truck, which was proceeding northwardly on Route 4.

He states that he observed the Harvey truck parked on the highway — that as he passed it, he called out, asking the driver “What is your trouble?” and he said his lights went out. Dennis saw no fusee burning anywhere on the Harvey truck, as he approached it, while passing it, or at any other time. No reflectors were visible on the Harvey truck. He drove the Holmes truck some 200 feet north of the Harvey truck, parked his truck on the side of the road, left his lights burning, and seeing a car approaching from the north took a flash light from his cab, stepped out in the road 8 feet, placing himself about 3 feet from the center line of the highway, and waived the flash light at the approaching car, which was that driven by Crigler. As the car passed Dennis, he shouted “Watch out for that truck.” The Crigler car swerved to the right and crashed into the Harvey truck. In this connection, it may be here stated that it would be perfectly logical for the driver of a car to veer away from one waving a flash light and to presume that the “truck” which he was to “watch out” for was on the side of the road, from which the flash light was waving.

There can be no question that the intentions of Dennis were of the best, but it is also apparent that his action coupled with the glare of the headlights he left burning were a contributing factor in causing the death of Bush.

These facts furnish evidence requiring a verdict against both defendants. A contrary verdict would be against the manifest weight of such evidence. Why then was the verdict in favor of both defendants? It is true no interrogatory was presented and the unfortunate effect of the two issue rule is here presented. However, it must be apparent, giving the jury credit for ordinary intelligence that they found some justification for a conclusion of contributory negligence on the part of Bush the decedent. An examination of the charges presented suggest the answer to the question.

In the general charge the court said':

“Now, Ladies and Gentlemen, it is the duty of the Court to call your attention to this further provision of the law which while it does not appear in the pleadings, nevertheless the state of the record requires the Court to charge you upon this particular point of law. And that is. that even though the defendants or either of them may have been guilty of some act or acts of negligence as charged by plaintiff, the plaintiff in this case can not recover if his decedent, Hobart Bush, Jr. was guilty of negligence proximately causing his death or in other words, if Hobart Bush, Jr. was guilty of what is called contributory negligence; that is, if by his failure to exercise ordinary care and caution under the circumstances if you should so. find, he directly contributed to produce the injuries which caused his death.

“It was the duty- of Hobart Bush, Jr. as he was riding along this highway to exercise ordinary care for his own safety, that is that degree of care which ordinarily careful and prudent persons áre accustomed to use under the same or similar circumstances.' And it is for you to determine from all the evidence whether Hobart Bush, Jr. was at said time and place in the exercise of ordinary care as the circumstances required. If you find that Hobart Bush, Jr. and the defendants or either of them were negligent and that the negligence of Hobart Bush, Jr. and the defendants or either of them was a proximate cause of the collision, then Hobart Bush, Jr. and either one or both of the defendants were negligent and the plaintiff can not recover.

“The burden of proving contributory negligence rests upon the defendants which they must prove by a preponderance of the evidence. This is true unless the evidence offered on behalf of the plaintiff -raises a presumption of contributory negligence, in which case it is the duty of plaintiff to counter-balance that presumption.”

In addition to this, the Court gave the following special charge:

“I charge you that even if you should find from the evidence in this case that -the driver of the Harvey truck was negligent at the time and place of the collision herein sued upon, still if you further find that the plaintiff’s decedent, Hobart Bush, Jr., failed to exercise ordinary care and prudence for his own safety at the time of or immediately prior to the collision in question, and that such failure on his part directly contributed in the slightest degree to the proximate cause of his resulting injury and death, then the plaintiff in this case cannot recover against the defendant Harvey Transfer Company and your verdict must be for said defendant.

“Ordinary care and prudence as used in this charge means that degree of care and prudence which is usually exercised by ordinarily careful and prudent persons under the same or similar circumstances. And the Court tells you that is the law.”

In the giving of these charges upon contributory negligence the Court committed error, prejudicial to the plaintiff, for the reason that there was no substantial evidence either in the evidence of the plaintiff or the defendants remotely suggesting negligence on the part of the decedent Bush.

In the absence of inference from the plaintiff’s evidence, the duty is on the defendants to prove two things. First, that the plaintiff was negligent; second, that such negligence was a contributing cause to his death. The inference referred to is also double barreled. There must not only arise an inference of negligence, but an inference that such negligence, if it existed, was a-contributing cause of plaintiff’s death.

In other words, contributory negligence is never presumed. 29 O Jur 627.

The third paragraph of the syllabus in the case of Stevens v. Industrial Commission, 145 Oh St 198, is:

“It is the duty of a party upon whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain such burden.”

In Martin v Heintz, 126 Oh St 227, it is stated at page 230 of the opinion:

“It is elementary that negligence is never presumed; it must be proven. There is no presumption of negligence as against either party to an accident, except such as arises from the facts proven. The presumption of law is that neither party was guilty of negligence, and this presumption stands until rebutted by evidence to the contrary.”

What is the evidence relied upon to suggest negligence on the part of Bush? That after having two bottles or glasses of 3.2 beer, he permitted Crigler to operate the automobile in which he rode? It is stated that Crigler’s breath carried the odor of beer. How much beer is required to create an odor? How much 3.2 beer must Crigler drink in order to present a condition requiring Bush to refuse to ride with him? Where is there a suggestion in the evidence that Crigler, with whom Bush had. many times ridden before, was not fully capable of exercising the required care and judgment necessary to properly drive the automobile? Bush should have seen the parked truck it is claimed. Why? Was it visible in time to warn Crigler? Bush should have seen the flash light and heard the warning cry of Dennis. Should he? Dennis was on the side of the car away from Bush. Crigler says he neither saw the flash light nor heard the cry. Is Bush guilty of- negligence because he did not indicate to Crigler what he may or may not have seen or heard. Crigler says his eyes were blinded by the lights from the Holmes truck. May not Bush too have been blinded? But it is evident all of this is simply groping in the field of pure speculation. All the evidence shows is that Bush did nothing but remained quiet until he was killed. Before discussing what he may have been required to do, let us remember again that whatever it was, the failure-^to do it must have been a contributing cause of his death. Again, only by entering the vast field of speculation can the failure to perform any vague duty resting upon Bush be said to be a contributing cause of his death. The guest passenger has no control over the operation of the car. Only by advice or warning can he in any way hope to control its course. What the effect of such advice or warning will be must again be found in the realm of speculation. Will the driver heed it or resent the action of his guest as a criticism of his operation of the car? How often must the guest so jeopardize his position? Is the jury to be free to speculate upon the proper exercise of such action? What would occur when many guests suggest opposite courses?

Prom a practical viewpoint if a duty to warn rests upon the guests, what an intolerable situation would exist if it was fully performed. Railroad crossings, street intersections, lights, parked and moving vehicles, road depressions, all would furnish constant material for warnings, caution and advice; Must the guest be constantly on the alert, or with confidence in his driver, may he not trust in serene repose that the vehicle will be properly operated. The instant case develops a situation for speculation favorable to the decedent. Suppose Bush had seen the Holmes truck lights and the warning flash light and heard the warning cry. Crigler was slowing down and swerving away from what was the apparent area of danger. What should Bush have added to such action on the part of Crigler. But it is stated Bush must have seen the parked, dark Harvey truck. Can it be seriously imagined that if he had observed the Harvey truck and that Crigler’s car was hurtling toward it he would have sat quietly awaiting the crash? Does not reason tell us he would have in some way sought safety? It is manifest that he did not see it and could not because it was in total darkness.

Another factor contributed with those mentioned to insure the death of Búsh and that was the negligence of Crigler. He stated he preferred usually to drive with his “dim” lights because he could better see the edge of the road and he was so driving at the time of the collision. It is evident that such lights as he had were insufficient to illuminate the dark Harvey truck at a distance permitting him to stop his automobile. In other words, he was not driving at a speed permitting him to stop within the assured clear distance ahead. That distance being the radius of the light from the .lamps upon his car. This factor was all that was necessary to complete the combination of circumstances from which only one result could ensue — the death or injury of the guest passenger in the Crigler car.

Against this conclusive development of fact is preferred— conjecture and speculation as to what Bush could or might have done to avert this collision. Again, speculation and conjecture are not legitimate inferences, and certainly not proof, that proof demanded of the defendants to establish those two necessary elements of their defense — a defense hot even alleged, failure to exercise care and the causal connection between such failure and the death of the decedent.

Charges upon this issue have been considered by the Supreme Court in a number of cases: Toledo Railways & Light Co. v Mayers, 93 Oh St 304; The Board of Commissioners of Logan County v Bicher, Admx., 98 Oh St 432; Hocking Valley Ry. Co. v Wykle, Jr., 122 Oh St 391; Tidd v New York Central Rd. Co., 132 Oh St 531; Baltimore & Ohio R. Co. v. Joseph, 112 Fed. (2d.) 518.

Essentially, the rule is that the guest occupant of a pri-' vate car is required to use the care for his own safety which reasonably prudent persons are accustomed to use in- the' same or similar circumstances. A rule which applies to every human being in every conceivable contingency.

What the trial court had to determine and what this-Court has to determine, in order to say that there was no-substantial evidence of contributory negligence on the part of decedent, is specifically what the decedent was required'' to do under the circumstances here presented. It is not a question of leaving the problem to that all-wise organ of. judicial administration, the jury, the court is required to-determine what duty rested on the' decedent and whether: there is any substantial evidence tha,t he failed to. perform: that duty. This problem is presented to every trial court when-the question of contributory negligence is presented.

The decedent was required to use ordinary 'care for his own safety, not the safety of the driver or of the vehicle, but his own safety. Certainly, that duty cannot be called into action unless there is reasonable cause to believe that his own safety may be menaced.

We are approaching the border line of joint enterprise, if the .passenger in looking out for his own safety must exercise the same degree of care that is required of the driver on whom he has a perfect right to rely. It has been held in the authorities cited that he is not required to exercise the same degree of care as the driver and that the driver’s negligence may not be imputed to the passenger, and that they are not engaged in a joint enterprise, merely because of the relationship of driver and passenger.

In Myers, Admr. v Norfolk & Western Ry. Co., et al., 122 Oh St 557, a petition was under attack because it was claimed that the plaintiff had in his allegations raised a presumption of negligence, which he had not rebutted by other allegations showing the exercise of proper care. In that case, (a railroad crossing case) the demurrer to the petition was sustained by the trial court and the plaintiff, not desiring to plead further, judgment was entered for defendant, which judgment was affirmed by the Court of Appeals, and reversed by the Supreme Court. At page 558 of the opinion, it is stated:

“Briefly stated, the third amended petition recites that about 7 A. M. on the 4th day of April, 1926, the defendant, who was a passenger invitee riding upon Gugle’s truck, sustained injuries caused by the negligence of Gugle and the railway company; that he was accustomed to ride home from his work on said truck; and that, for a long period of time before the accident, and upon the invitation and with the knowledge of the defendant Gugle, the decedent ‘had customarily and constantly ridden out on said' truck;’ that upon this occasion the truck was driven by the defendant’s employee Stiles, upon the business of the defendant; and that such employee negligently drove the truck over said crossing without stopping, looking, and listening, and without using ordinary care to first ascertain whether a train was approaching.

“The only allegation in the pleading giving rise to the claim of presumptive negligence upon the part of the plaintiff is the averment that the plaintiff had, for a long period of time, been accustomed to ride on the truck; but there is no allegation that he was accustomed to ride over this particular crossing. It is alleged that the driver failed to stop, look, and listen for the approaching train; but there is no allegation of peculiar circumstances casting a duty upon the plaintiff of warning the driver or that plaintiff possessed any knowledge of a peril which was imminent, or had reason to believe that he was being placed in a hazardous situation by the conduct of the driver. While the pleading contained charges of negligence against the driver of the truck, the latter’s negligence may not be imputed to his guest. Hocking Valley Ry. Co. v Wykle, ante., 391, 171 N. E. 860.

“We are of opinion 'that the plaintiff’s third amended petition contains no allegations from which contributory negligence could be reasonably inferred.”

This dissenting opinion has been unduly extended because, it is the view of the writer that the position of a guest rider should be definitely defined and not left to the hazy realm of speculation. If there is a duty on the part of the guest passenger to be constantly on the alert, then let the rule be so definitely stated, so that persons may not continue to repose in the security of trust in the operators of vehicles, whom they have no reason to believe are not fully competent to operate them. If the rule considered applicable ■by the majority opinion is correct, then it should be stated specifically by our Court of last resort. To simply leave it to the jury, with only the normal vague instructions given, is to mislead that body, as was done here, into false logic and erroneous conclusions.

There are other errors in the record which should be considered beside the one mentioned in the majority opinion. If the case should be considered by the Supreme Court and the writer’s conclusions endorsed, upon remand to this Court, such errors can be further considered. It is my conviction that the judgment should be reversed "and the case remanded for a new trial.