Presti v. Cleveland Ry. Co.

This cause comes into this court on error from the court of common pleas of Cuyahoga county, and it is here sought to reverse the judgment of the lower court, wherein there was a verdict by the jury for the defendant in a personal injury and property case, growing out of a collision at the intersection of East Forty-seventh street and Woodland avenue in the city of Cleveland. It is claimed that counsel for the defendant below was guilty of misconduct in his argument to the jury by use of the following language:

"You know, since the time the world began we have lived in ages; we have passed through various ages; and just at the present time we are in what might be called the ``damage age.' Here, at least, in Cuyahoga county, it strikes me from what I have observed in the last few years it has come to be a practice in this county, and legitimately so regarded by many, that if a man can come into court and by hook or crook get a verdict out of a defendant, all well and good; if they can't all well and good; it is a gamble, a legitimate gamble, and to me that situation invites corporations to organize what are known as ``claim departments.' You go out here and this great railway running east and west through your city, and the New York Central, and the Pennsylvania and the Big Four, you go out to the Erie, you go out to the American Steel and Wire Company, you go into any large manufacturing company or plant in any city in the United States, and you will find an organization — and organized accident department. Why? Because those corporations have been held up by people suing for damages."

It is apparent from the record and the language itself that the argument of counsel for plaintiff was provocative of the language quoted, and under all the authorities the judgment will not be reversed because of a colloquy between counsel upon the same subject in argument before the jury.

It is also claimed as error that a certain document went to the jury signed by Christopher Williams, a witness to the accident, given to a claim agent of the defendant company, when it appears that certain portions of it were ordered eliminated by the court as prejudicial, but that, notwithstanding this, the part attempted to be stricken out is still legible. Inasmuch as the questions were put to the witness with respect to the document under cross-examination, we do not think that it was incompetent to allow to remain in the record that portion of the document ordered obliterated, and, this being so, there is no prejudicial error in our judgment in this respect.

On the question of the right of way at East Forty-seventh street and Woodland avenue, without the question of the right of way being made a distinct issue in the case, and arising only by way of incident to the main circumstances, the court under the statute relating to written charges before argument (Section 11447, General Code) gave the following:

"I charge you as a matter of law that Woodland avenue is, and was on December 29, 1924, a main thoroughfare in the city of Cleveland, and that the street car of the defendant under the ordinances and state laws had the right of way over the vehicle operated by the plaintiff on the day in question. By right of way, I mean that the street car of the defendant had the right to proceed uninterruptedly in a lawful manner in the direction in which it was proceeding in preference to the vehicle of the plaintiff, approaching from East Forty-Seventh street."

The majority of the court are of opinion that this instruction was prejudicial error. An instruction before argument, in writing, under the statute, in character has a different legal entity and significance than an instruction given in the general charge at the conclusion of the argument. In the former case it becomes the unquestioned law of the case upon the subject incorporated in the instruction. It is the voice of the court pronouncing the law upon that question. Counsel may read the same repeatedly to the jury, and it is of such legal import that it goes to the jury under instructions to be considered by them in their deliberations upon the case. This is a statutory privilege given counsel, and it has great weight with the jury, and anything of a prejudicial nature in such charge must be considered in a much more serious light than any portion of the final charge given by the court. When counsel makes the request in writing, and submits the instruction in writing, and the court gives it, both court and counsel are responsible for its misuse, the peril of prejudice attaches to it, and there is an accountability not only resting upon the shoulders of the court, but upon the shoulders of counsel. Therefore the instruction must be given in compliance with the law in all respects, so that when it is read to the jury, and by the jury, in their deliberations, it fully states the law upon that subject.

This charge assumes that the street railway company had the right of way to the extent that the plaintiff below was bound to stop his vehicle and surrender that right to the highway which he had, to-wit, to cross at the intersection if he could do so in the exercise of reasonable care, and if the facts and circumstances of the case gave reasonable ground for such belief. It also releases from that legal responsibility resting upon the motorman at intersections, even though he may have the right of way in his favor, to exercise reasonable care where travel is operating at right angles. The right of way is no arbitrary immutable privilege, either under the statute or the ordinance, because the underlying principle at all times is that there must be conduct consistent with the theory of the exercise of that care which ordinarily prudent people exercise under the same and similar circumstances. If the law were otherwise, then, instead of the statute and the ordinance accomplishing the purposes for which they were passed, they would increase disasters, by inviting, under a wrong construction of the law, travelers to rest solely and wholly upon the theory that because they had the right of way they were immune from the exercise of reasonable and ordinary care. The right of way does not ignore this principle, and even though there is a preference given to the vehicle nearest to the intersection, yet it does not deprive the vehicle traveling at right angles upon the intersection from proceeding, if it can be done, with the exercise of reasonable care. Under this instruction it would appear, especially by the use of the word "uninterruptedly," that it was the duty, because of the right of way alone, for the automobile driver to stop until the street railway motorman, having a right of way, passed safely over, notwithstanding by the exercise of reasonable care he may have been able to make the intersection safely and without interrupting the passage of the street car.

We think the principle laid down in Huddy on Automobiles (6th Ed.), Section 394, states the law, and we quote it, as follows:

"While under the common-law rule travelers at intersecting streets have equal rights, with a priority given to one who reaches the intersection distinctly in advance of another, the rule may be changed by statute or municipal ordinance. A regulation may properly be enacted giving to travelers along one street the priority over those approaching along a cross street, the intention being to relieve the crowded condition of traffic along the street to which priority is given. And, even where an advantage may not be grounded on the traffic conditions, modern regulations generally require the traveler to give way to one approaching an intersecting street on the right side. One of the difficulties involved under such a regulation is determining when one approaching from the right is close enough so that he can be said to be ``approaching the intersection.' Such a regulation imposes on the less favored traveler an affirmative duty to keep out of the other's way, and requires him to slow, to stop, and if need be to reverse, if otherwise the vehicles are likely to come into contact. An ordinance giving a prior right to travelers on certain streets is not abrogated by a statute regulating the operation of motor vehicles, where the statute does not cover the subject of priorities at intersecting streets. The violation of traffic regulations of this character is to be considered on the question of the negligence of the parties, and, like other violations of the law of the road, may create a presumption of negligence against the guilty traveler. It still remains,however, the province of the court and jury to determine whetherthe respective parties have exercised the degree of care imposedon them; and the fact that one party is entitled to priority doesnot relieve him from the duty of exercising reasonable care toavoid injury to other travelers. The driver not entitled to priority may properly assume that the other will not approach at an excessive speed. One entitled to priority under the law is nevertheless required to keep a lookout for cars approaching from his left; and, if he fails in this respect, he may be charged with negligence. But, until he discovers to the contrary, he is entitled to assume that he will be accorded the right of way. One entitled to priority along a certain street is not necessarily allowed to carry such privilege with him when he is turning from such street into a cross street. When making the turn, he must exercise caution to avoid a collision with vehicles passing along the cross street, and reasonable care may require that he yield or delay his turn, if another vehicle is then passing." (Italics mine.)

Bearing out this principle of law, the foot-notes under this citation give the following authorities: Ray v. Brannan,196 Ala. 113, 72 So. 16; Golden Eagle Dry Goods Co. v. Mockbee,68 Colo. 312, 189 P. 850; Geeck v. Lukenbill, 215 Mich. 288,183 N.W. 729; Rosenau v. Peterson, 147 Minn. 95, 179 N.W. 647;Lindahl v. Morse, 148 Minn. 167, 181 N.W. 323; Schneider v.Hawks (Mo.App.), 211 S.W. 681; Erwin v. Traud,90 N.J. Law, 289, 100 A. 184, L.R.A. 1917D, 690; Paulsen v. Klinge,92 N.J. Law, 99, 104 A. 95; Spawn v. Goldberg, 94 N.J. Law, 335,110 A. 563; Ward v. Clark, 189 A.D. 344, 179 N.Y.S., 466; Blum v.Gerardi, 111 Misc. Rep., 617, 182 N.Y.S., 297; Schultz v.Nicholson, 116 Misc. Rep., 114; Lee v. Pesterfield, 77 Okl., 317,188 P. 674; Greater Motors Corp. v. Metropolitan Taxi Co.,115 Wash. 451, 197 P. 327.

The above interpretation of the law with respect to the right of way, we think, makes prejudicial error of request No. 3, which was given at defendant's request, as follows:

"I charge you that the violation of an ordinance or a state law is negligence as a matter of law, and if you find that the plaintiff in this case was guilty of a violation of any ordinance or state law, and such violation directly contributed to produce the accident, then your verdict must be for the defendant."

A reasonable interpretation of that charge, we think, means that the plaintiff was guilty, as a matter of law, if he attempted to cross the intersection in question in the face of the law and the ordinance as to right of way, even though he had the right to do so if it could be done by the exercise of reasonable care.

We find no prejudicial errors in the record other than those above noted, and for these reasons the judgment of the lower court is hereby reversed and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

LEVINE, J., concurs.