Bossert v. Louys , 46 Ohio App. 442 ( 1933 )

In the proceedings in error herein it is sought by William Bossert, the plaintiff in error, to reverse a judgment rendered against him in the court of common pleas in favor of the defendant in error, Niles V. Louys, a minor, who brought his action in that court by his next friend, Bessie E. Louys, for personal injuries sustained, it was claimed, by the negligence of Bossert. The injuries resulted from the collision of a bicycle ridden by Louys and a truck owned and operated by Bossert. In the amended petition of Louys it is alleged, in part: That at the time of the collision Bossert was operating his truck "at a speed of thirty miles per hour, without having same under control, and without signal or warning, onto and against plaintiff, causing injuries to plaintiff hereinafter described. * * * That at said time there was in full force and effect ordinance No. 4034, true copy of certain section thereof being as follows: ``Section 45-c. Driving a vehicle when it is not under control.'" That the negligence and carelessness of Bossert, "in driving and operating said motor vehicle in the manner hereinafter set forth and in violation of said ordinance, resulted directly and proximately in injuries to plaintiff." Then follows a description of the alleged injuries sustained by Louys. The errors of which Bossert complains are that the judgment is manifestly against the weight of the evidence, and that the trial judge erred in his general charge to the jury as to the legal effect of the violation of the ordinance pleaded in the amended petition and admitted by Bossert to have been in full force and effect at the time of the collision. The evidence we find is so in conflict that a verdict, whether for Louys or Bossert, would not be disturbed as manifestly against the weight of the evidence. None of the ordinance pleaded by Louys in his amended petition was introduced in evidence, except that portion thereof quoted therein. As to the ordinance, the court instructed the jury as follows:

"It is provided by ordinance of the City of Toledo, which the parties have admitted was in full force and effect at the time of the occurrence in question, as follows: Reckless driving within the meaning of this ordinance shall be deemed to include the following offenses which are hereby prohibited: (c) Driving a vehicle when it is not under control.

"A violation of the provisions of this ordinance to which I have called your attention is negligence per se, — that is, in and of itself. Whether or not this ordinance was violated at the time and place in question is for you to determine from the evidence in the case."

Prohibiting the "driving a vehicle when it is not under control" is not, as said at page 422 of the opinion in Jones v.Harmon, 122 Ohio St. 420, 172 N.E. 151, "a specific requirement to do or to omit to do a definite act, but rather a rule of conduct, and the rule of per se negligence is not applicable thereto." As also announcing this principle, attention is called to McKinnon v. Pettibone, 44 Ohio App. 147, 184 N.E. 707, and cases cited therein; Lazzara v. Hart, 45 Ohio App. 368,187 N.E. 190, and Morr v. Merkle, 13 Ohio Law Abs., 42.

Hence the trial judge erred to the prejudice of plaintiff in error in giving to the jury the instruction above quoted. The judgment is therefore reversed, and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

RICHARDS and WILLIAMS, JJ., concur.