Ralston v. Stout

The plaintiff brought this action in the Common Pleas Court of Adams County to recover damages for personal injuries allegedly sustained in a collision between an automobile in which plaintiff was a passenger and at the time being driven by Anna K. Barnes and a truck owned and operated by the defendant. The accident occurred at about 2:30 p. m. on July 21, 1962, on State Route No. 32 in Adams County. The parties will be referred to hereinafter as the plaintiff and defendant in the same relation they appeared in the Common Pleas Court.

The specific acts and omissions of negligence alleged in the petition are:

(1) The defendant operated and permitted said truck to be stopped upon said highway where it was not safe to have the same stopped.

(2) The defendant failed to carry any warning devices or display the same upon said highway at such a distance as would warn on-coming traffic that he was stopped on said highway.

(3) That defendant failed to warn on-coming traffic in any manner that said truck was stopped upon said highway, although defendant had ample opportunity to do so.

The defendant, in his answer, after making certain admissions, denied any negligence on his part and further alleged that plaintiff's injuries and damages were caused solely by the negligence of the operator of the automobile in which the plaintiff was riding, in that such operator failed to drive so that she could stop within the assured clear distance ahead and that she operated such automobile with the windshield and windows fogged over, thereby impairing her vision.

Plaintiff, in her reply, denied all allegations of the answer which were inconsistent with the allegations of her petition.

Trial of the cause to a jury resulted in a verdict for the defendant. The motion for a new trial was overruled, and this appeal on questions of law followed.

The first assignment of error is that the verdict is contrary to law and the evidence. The facts may be briefly summarized as follows:

Shortly before the collision there was a very heavy rain accompanied by wind. The defendant was proceeding in a westerly direction on State Route No. 32 with a load of eight and a half tons of lime. His truck drowned out, stalled and stopped in defendant's lane of travel in a dip in the highway. According to defendant's testimony, he turned on the blinker light and, within less than a minute after the truck stopped, the automobile in which the plaintiff was riding, traveling in the same direction, collided with the rear end of the truck. It was still raining at the time of the collision. The plaintiff and the driver of the automobile in which the plaintiff was riding testified that, driving at the rate of thirty to thirty-five miles per hour, they could not see the truck until it was impossible to avoid a rear-end collision with it. The evidence, including photographs, shows that the operator of the automobile in which plaintiff was riding had an unobstructed view of the stalled truck a distance of 2/10ths of a mile and that the windshield of the Barnes car was steamed or fogged, providing poor visibility a few minutes after the collision.

The pleadings and the evidence raised the issue whether the defendant was negligent in any respect as alleged in the petition and, if so, was such negligence the proximate cause of plaintiff's injuries. The averment in the answer that the injury sustained by the plaintiff was caused by the driver of the automobile in which the plaintiff was riding, and not by the defendant, did not impose upon the defendant the burden of proving such fact. Such an averment does not constitute an affirmative defense, but is another form of a general denial. 39 Ohio Jurisprudence 2d 706 and 724, Negligence, Sections 135 and 144. Assuming that the defendant was negligent in the operation of his truck, there remained the questions of the negligence of the driver of the other automobile and the proximate cause of the collision and the resulting injuries. 39 Ohio Jurisprudence 2d 782, Section 174. This is true in any instance where an injury has been sustained by the alleged concurrent negligence of two or more wrongdoers. See White v. Ohio Power Co., 171 Ohio St. 148; and Schreiber v. National Smelting Co., 157 Ohio St. 1. The court in its general charge, after stating the law pertaining to the liability of the defendant, further properly instructed the jury as follows:

"Or if you find that the negligence of Anna K. Barnes, driver of the car in which plaintiff was riding was the sole and proximate cause of plaintiff's injury then your verdict must be for the defendant."

The verdict was not tested by interrogatories, and we have no way to determine how the jury reached its conclusion; but the conflicting evidence clearly established determinative factual issues for consideration by the jury as to both the questions of negligence and of proximate cause of the collision. In such a situation the court may not vacate the verdict and determine as a matter of law that the defendant's negligence was the proximate cause of the collision. To do so would be a clear invasion of the province of the jury.

In Baldridge v. Wright Gas Co., Inc., 154 Ohio St. 452, it was held in the third paragraph of the syllabus:

"Ordinarily, the issue of causation is for the determination of the jury and it is not for the court to substitute its reasoning for that of the jury in a field which belongs peculiarly to the latter."

See, also, Breakiron v. Meyer, 115 Ohio App. 24.

Under the second assignment of error the plaintiff claims the court erred in admitting in evidence the deposition offered by the defendant. The record shows that the plaintiff participated in taking the deposition and that the sealed deposition was lodged with the clerk of courts on May 15, 1964. On May 18, 1964, written notice was given to counsel for plaintiff that the deposition had been lodged with the clerk. Plaintiff filed no exceptions or objections thereto, and during the trial on May 28, 1964, on order of the court, the deposition was opened and used in evidence.

Section 2319.29, Revised Code, provides:

"No exception to a deposition other than for incompetency or irrelevancy shall be regarded unless it is made and filed before the commencement of the trial."

The plaintiff, having filed no exceptions before proceeding to trial, thereby waived any objections to the use of the deposition in evidence. See 17 Ohio Jurisprudence 2d 302 etseq., Section 62 et seq.

Under the third, fourth and fifth assignments of error the plaintiff complains that the court erred in its refusal to charge the jury, as requested by the plaintiff, and in the general charge. We have carefully considered these alleged errors and find no merit in plaintiff's contentions. The charges requested were incomplete and the court's general charge covered all the issues adequately and correctly.

This court finding no error prejudicial to the rights of the plaintiff, the judgment of the Common Pleas Court must be, and hereby is, affirmed.

Judgment affirmed.

BROWN, J., concurs.