Klever v. Reid Bros. Express, Inc. , 52 Ohio Law. Abs. 410 ( 1948 )

OPINION

By STEVENS, J.

Plaintiff, William H. Klever, while driving his automobile north on state route 8 on the night of January 24, 1942, collided with a tractor-trailer operated by defendant’s agent, and as a result thereof sustained personal injuries and property damage.

Suit was filed by plaintiff against defendant, charging defendant with negligence in not having the tractor-trailer lighted, as required by law, and that said tractor-trailer was. backed into the highway without any warning to plaintiff.

Answer of defendant was filed, wherein defendant’s negligence was denied, and plaintiff was charged with negligence which proximately contributed to cause his own injury and damage.

Trial was had in the Court of Common Pleas, where the jury returned a general verdict for plaintiff and for the-intervening collision insurance carrier, The Hartford Insurance Co., for $20,000. The jury answered special interrogatories as follows:

“1. How far could the plaintiff see a substantial object in-front of his car immediately before the accident?

“Answer: Forty feet due to weather conditions.’’

“2. How far was the plaintiff from the trailer when he first, saw it?

“Answer: Forty feet.”

“3. What was the position of the trailer when the plaintiff' first saw it?

“Answer: We believe from the evidence, the rear end of the trailer was out in the highway, east lane No. 1, about, four feet west of the curb.”

Motion for judgment notwithstanding the verdict, and for judgment in accordance with tlie answers to the special interrogatories, was filed by defendant.

Upon consideration of that motion, the trial court found that plaintiff was guilty of contributory negligence for violation ■of the assured-clear-distance portion of §12603 GC, and entered final judgment for the defendant.

The motion of plaintiff for a new trial was not passed upon toy the court.

Appeal on questions of law seeks a reversal of the judgment lor defendant.

The facts, as disclosed by the bill of exceptions, are as ipllows:

State route 8, at the point of collision, is a 30-foot brick paved road, consisting of three 10-foot traffic lanes, and is .straight and level.

On the easterly side of the highway, Reid Brothers maintained a dock for storing tractors and trailers, the entrance to which was across the entire width of the lot, and in front •of which was a cindered area.

On January 24, 1942, at shortly after 8 p. m., when it was dark and misty enough to require the operation of windshield wipers, plaintiff drove his Hudson car north on route 8, at .about 35 miles an hour, in the right-hand, or easterly, traffic lane.

At the same time, Taylor Keith, defendant’s agent, was ■backing or had backed, a tractor and trailer from the dock onto the highway at approximately right angles thereto. The •distance which the tractor and trailer had proceeded into the highway when plaintiff first saw it, was disputed, as was the question as to whether or not the trailer was lighted. Klever first saw the trailer when he was 40 feet away from it; he thereupon turned to the -left, or west, and applied his brakes, but was unable to stop or to avoid colliding with the trailer, which he struck at a point forward of the rear wheels thereof, with resulting injury to himself and damage to his •car.

The errors assigned follow:

■ 1. Error in submitting defendant’s interrogatories 1, 2 and 3 for answer by the jury.

2. Error in rendering judgment for defendant in accordance with the special findings of the jury and notwithstanding the verdict for plaintiff.

3. Other errors apparent on the face of the record.

Appellant’s first assignment of error has to do with his contention that, under the evidence, the assured-clear-distance portion of §12603 GC, has no application, because of the defendant’s creation of an emergency by backing its trailer onto •the highway in the path of plaintiff’s automobile; in support •of that claim, he relies upon Smiley v. Arrow Spring Bed Co., 138 Oh St 81, and Reeves v. Joe O. Frank Co., 76 Oh Ap 1.

The second syllabus of the Smiley case states:

“2. To comply with the assured-clear-distance-ahead provision of §12603 GC, the driver of a motor vehicle must not operate it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a discernable object obstructing his path or line of travel, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance, within such clear distance ahead and into his path or line of travel, of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.” (Emphasis ours.)

That case contemplates, in the second syllabus, a situation where the driver of a motor vehicle has an assured clear distance, and is operating his vehicle so as to be able to stop within that distance, when a discernable object is suddenly, without warning and without his fault, interposed in his line of .travel, so as to reduce that assured clear distance, and the driver is thereby disenabled to stop in time to avoid a collision. Such a situation creates an emergency which falls within the exception to the assured-clear-distance rule.

To ascertain whether or not this plaintiff was complying with the requirements of that rule, it was entirely proper to require the jury, through interrogatories, to state how far plaintiff could see under the conditions there existing, and how far away the trailer was when plaintiff first saw it, as well as the position of the trailer on the highway. Those were important questions, material to the issues under consideration, and eliciting ultimate facts; it would have been error not to submit them especially in view of the fact that one of the issues made by the pleadings was the alleged contributory negligence of the plaintiff.

We find no prejudicial error in the submission of special interrogatories 1, 2 and 3 to the jury.

The second assignment of error challenges the correctness of the trial court’s holding that the facts as established by the evidence, and the answers to the interrogatories, were controlling upon the question of contributory negligence; that the plaintiff violated the assured-clear-distance statute, and that the defendant was therefore entitled to a judgment notwithstanding the verdict.

It is urged by appellant that the answer to interrogatory .No. 2 should not have been controlling because it inquired “How far was plaintiff from the trailer when he saw it?” whereas the statute deals with how far plaintiff’s car was -from the discernible object when it was first seen by the driver. Claim is made that plaintiff was from 5 to 7 feet back of the front end of his car, and that the jury’s answer to the interrogatory would thus put the front end of plaintiff’s car 5 to 7 feet nearer than 40 feet when plaintiff first saw defendant’s trailer, and thus it is claimed that the entry of the trailer into plaintiff’s path of travel was within the 40-foot assured clear distance, which brings this case within the exception to the statute, as discussed in the Smiley case, supra.

To us it seems that the interrogatory in question is properly susceptible to the construction of inquiring “How far was plaintiff’s car from the trailer when plaintiff first saw it?” Both of the other interrogatories dealt with the location of automobiles upon the highway, and the first interrogatory asked, “How far could the plaintiff see a substantial object in front of his car immediately before the accident?”

The jury was thinking in terms of the location of cars when it came to a consideration of interrogatory No. 2, and in our opinion the answer “Forty feet” was intended to mean that plaintiff’s car was 40 feet from the trailer when plaintiff first saw the trailer.

If this construction of interrogatory No. 2 and its answer be adopted, then we are faced with this situation: Plaintiff could see a substantial object in his path of travel 40 feet in front of his car under the conditions then existing; he did see the trailer when it was 40 feet in front of his car; he did not or could not stop before colliding with the trailer; hence, in our opinion, reasonable minds could only conclude that the assured-clear-distance portion of §12603 GC, was violated, and that plaintiff was guilty of contributory negligence as a matter of law.

There is a further claim of appellant that the answer to interrogatory No. 1 is not supported by any evidence, and is manifestly against the weight of the evidence.

This claim is based upon the assertion that the only evidence in the record bearing upon the distance that plaintiff could see, is that of plaintiff; and his testimony indicates he could see 300 feet in front of his car with his bright headlights burning.

An examination of plaintiff’s testimony reveals, however, that he did not say he could see 300 feet in front of his car with his bright lights, under the conditions existing at the time in question. From a consideration of all of the evidence, including that pertaining to mist, fog, rain, and the operation of plaintiff’s windshield wipers, and also considering the reasonable inferences to be drawn therefrom, we cannot say that the jury’s answers to the interrogatories were not supported by evidence, or were manifestly against the weight of the .evidence.

We have considered the other errors assigned, and find none of a prejudicial character.

A majority of the members of this court are of the opinion that this judgment should be affirmed.

Judgment affirmed.

DOYLE, PJ, concurs.