Ashworth v. Morrison , 93 Ohio Law. Abs. 503 ( 1963 )

Duffy, J.

The plaintiff-appellant, a pedestrian, was struck by the defendant-appellee’s truck after he attempted to cross U. S. Route 52 near Burlington, Ohio. A trial was had before a jury in the Common Pleas Court of Lawrence County, and a judgment was entered on the verdict for the defendant-appellee.

The plaintiff-appellant has appealed to this court, and has assigned the following as errors of the trial court:

“1. In excluding relevant material and competent evidence offered by the plaintiff-appellant.

“2. In refusing to grant a new trial after it was brought to the attention of the court that one of the nine jurors who signed the verdict was not a qualified elector of Lawrence County, Ohio, and consequently was not a qualified juror.

“3. The verdict of the jury was against the weight of the evidence.

“4. The verdict of the jury was contrary to law and the evidence.

“5. Other errors apparent on the face of the record.”

The first assignment of error has to do with a statement allegedly made by the defendant-appellee to a relative of the plaintiff-appellant within two to five minutes after the accident occurred to the effect, “Don’t worry, I have $50,000 in insurance.” The evidence was proffered in a manner in which the jury did not overhear the statement, and the court sustained an objection to its introduction. The plaintiff-appellant alleges the proffered testimony amounted to an admission by the defendant-appellee that he was at fault and an admission that the plaintiff-appellant was not at fault.

We are of the opinion that the testimony was properly excluded as it is not an admission of guilt or of liability, nor can it be admitted as part of the res gestae. If the statement had included such an admission, it would have been proper to admit the statement even though the reference to insurance was contained in the statement.

The second assignment of error as to the nonresident juror was withdrawn by the attorney for the plaintiff-appellant at the time of argument.

The third and fourth assignments of error are overruled as the verdict of the jury was not against the weight of the evidence, nor was it contrary to law and the evidence.

At the time of argument the plaintiff-appellant asked the court to consider under its fifth assignment of error the special charge of the court given at the request of the defendant-appellee before argument on the unavoidable accident. The plaintiff-appellant declares that in view of the fact the pleadings allege negligence, contributory negligence, and sole negligence, the injection of inevitable or unavoidable accident into the charge of the trial court was reversible error. In support of his contention he has cited the cases of Uncapher v. The Baltimore & Ohio Rd. Co., 127 Ohio St., 351, 188 N. E., 553; Williams, a Minor, v. Burrell, 43 Ohio App., 341, 182 N. E., 889; and Knabb, Admr., v. Scherer, 45 Ohio App., 535, 187 N. E., 574.

Since the pleadings and the evidence in this lawsuit called for the trial court to charge only on negligence and contributory negligence, it was error for tbe court to charge on unavoidable accident as the defense of unavoidable accident can be considered only where it is alleged that none of the parties was negligent in any respect. See Uncapher v. The Baltimore & Ohio Rd. Co., supra.

The defendant-appellee contends that if it should be found that the charge as to unavoidable accident was error, under the circumstances in this case it was not prejudicial error because the jury did not accept the theory of unavoidable accident. Bather, by answers to four written interrogatories signed by nine of the 12 jurors, the jury found that the defendant-appellee was guilty of negligence in that “After seeing the old man in the road the driver should have proceeded with more caution,” and also that the plaintiff-appellant was negligent in that “By seeing a vehicle approaching and then hesitating in the middle of the road.” In view of the finding by the jury that the defendant-appellee was negligent and the plaintiff-appellant was guilty of contributory negligence, it must be concluded that the jury was not misled by the erroneous special charge on unavoidable accident, and such error under the circumstances was not prejudicial to the plaintiff-appellant.

The judgment of the trial court will be affirmed.

Brown, P. J., concurs. Carlisle, J., dissents.