Hipp v. Williams ( 1960 )

I agree with the statement of Judge Smith that the general charge was a correct statement of the law applicable to the case, so far as it went. The court digested the contentions of the respective parties made by the pleadings, defined negligence, burden of proof, preponderance of the evidence, proximate cause, and also dealt with the subjects of contributory negligence, credibility of witnesses and damages.

The court also charged generally with respect to the duty of a driver of a motor vehicle to keep a lookout ahead, keep his vehicle under such control as would permit him to stop within a reasonable distance (not within the assured clear distance ahead) and so as not to endanger the life, limb or property of any person in the lawful use of the highway, concluding that a violation thereof would be a lack of the exercise of ordinary care. But the court neglected to comment on the most important issue raised by the pleadings and supported by the evidence, namely, violation of the assured-clear-distance-ahead rule. The court should have referred to the statutory requirement and have told the jury that if it found the defendant violated such requirement he would have been guilty of negligence as a matter of law, and if the jury should find that such negligence was a proximate cause of the injury to the plaintiff, and if it should further find the plaintiff free from negligence proximately contributing to her injury, in such event its verdict should be returned for the plaintiff. As the case went to the jury, it would gain a definite impression that the defendant was required to exercise only ordinary care notwithstanding the fact that had it been properly instructed, the jury could well have found that the defendant was guilty of negligence as a matter of law in failing to observe the assured-clear-distance-ahead rule which proximately caused plaintiff's injury.

Were it not for the decision of the Supreme Court in Rhoades v. City of Cleveland, 157 Ohio St. 107, 105 N.E.2d 2, the writer would have the definite opinion that, considering the charge as a whole, the jury was misled to the prejudice of the plaintiff and also that the giving of the special charges requested by the defendant, taken in consideration with the general charge and particularly the omission to charge on assured clear distance, gave undue prominence and emphasis to the defendant's case. American Steel Packing Co. v. Conkle,86 Ohio St. 117, 99 N.E. 89; Uncapher, Admr., v. West, Recr.,100 Ohio St. 202, 126 N.E. 91.

The failure to charge on assured clear distance clearly, if not flagrantly, violated the well-established rule that in submitting the case to the jury it is the duty of the court to separately and definitely state to the jury the issues of fact made by the pleadings, accompanied by such instructions as toeach issue as the nature of the case may require. Baltimore Ohio Rd. Co. v. Lockwood, 72 Ohio St. 586, 74 N.E. 1071;Jones v. People's Bank Co., 95 Ohio St. 253, 116 N.E. 34;Ohio Collieries Co. v. Cocke, 107 Ohio St. 238, 140 N.E. 356;Telinde v. Ohio Traction Co., 109 Ohio St. 125, 141 N.E. 673;Lima Used Car Exchange Co. v. Hemperly, 120 Ohio St. 400,166 N.E. 364; Simko v. Miller, 133 Ohio St. 345,13 N.E.2d 914.

Notwithstanding the foregoing observation, the Supreme Court in the Rhoades case recognized and approved the rule in theLockwood, Simko and other cases cited above, but further held that, notwithstanding the violation by the court of such rule, in the absence of request by counsel to supply the omissions, such error of omission did not justify a reversal. Thus, the court, although recognizing and approving the Lockwood andSimko rule, holds that it does not follow that the omission to perform that duty is reversible error in the event counsel has not called such omission to the court's attention, thereby following and reapproving Adams v. State, 25 Ohio St. 584;Columbus Ry. Co. v. Ritter, 67 Ohio St. 53, 64, 65 N.E. 613;State v. McCoy, 88 Ohio St. 447, 454, 103 N.E. 136; Beeler v.Ponting, 116 Ohio St. 432, 156 N.E. 599; State v. Tudor,154 Ohio St. 249, 95 N.E.2d 385; and Karr, Admr., v. Sixt,146 Ohio St. 527, 67 N.E.2d 331. It may be noted that the court emphasizes the language employed in Section 11560, General Code (Section 2321.03, Revised Code), enacted in 1935, subsequent to the decision in Beeler v. Ponting, and decisions prior thereto. The court has continued to follow this rule inWood v. General Electric Co., 159 Ohio St. 273,112 N.E.2d 8; Fantozzi, Exrx., v. N. Y., C. St. L. Rd. Co.,161 Ohio St. 485, 120 N.E.2d 104; Shellock v. Klempay Bros.,167 Ohio St. 279, 286, 148 N.E.2d 57. See, also, State v.Glaros, 170 Ohio St. 471, 166 N.E.2d 379.

In concurring in the opinion of Judge Smith, we have not overlooked the syllabus in the Rhoades case reciting "such errors of omission will not ordinarily justify a reversal," thus apparently leaving the matter open for distinguishing the facts presented in the Rhoades case from those presented for review in another case.

The record as well as the opinion of Hurd, J., in the Rhoadescase have been read with some care and the writer is unable to distinguish it from the instant case. The facts are different, but the principles of law presented for decision are the same. As a matter of fact, the omissions in the Rhoades case are more numerous, if not more flagrant, than those in the instant case.

It has occurred to the writer that there should possibly be an intermediate position in the application of the rule of theLockwood and Simko cases, in juxtaposition to the Ritter rule in this respect: upon the failure of a court to charge upon one or more important issues in a case wherein counsel has failed to direct attention to such omission, the reviewing court should be permitted to review the charge as a whole in connection with special charges as well as the entire record and determine whether a party has been accorded a fair trial. However, in theRhoades case, the Court of Appeals determined that, taking the charge as a whole, together with special instructions, gave undue prominence and emphasis to the defendant's case. As indicated above, the writer is of like opinion with respect to the instant case, but in reversing the Court of Appeals the Supreme Court rejected this conclusion of the Court of Appeals.

The writer is of the further opinion that inasmuch as the sole responsibility is now placed upon a losing party to call the court's attention to even the most flagrant error of omission in a general charge, the Supreme Court ought to afford the opportunity to reconsider its decision in the Rhoades case. Nevertheless, judicial subordination compels me with some reluctance and regret to concur in the judgment of affirmance in this case.