Bolser v. Smalley

I concur in the judgment of this court and also in the conclusion of the majority of the court that the application of the "two-issue rule" is required.

The special charge, mentioned in the majority opinion, and given at the request of the defendant, is as follows:

"The court charges you that where one, without fault of his own, is placed in a position of great mental stress or sudden emergency, the same degree of judgment and care is not required of him as is required of one who is acting under normal conditions. The test to be applied is whether or not the person in such a position of great mental stress or sudden emergency did, or attempted to do, what a reasonably prudent person would have done under the same or similar circumstances.

"If, therefore, you find from the evidence in this case, that the driver of the taxicab, without fault on his part, was placed in a position of great mental stress or sudden emergency, and that while in such a position, he did or attempted to do what any reasonably prudent person would have done under the same or similar circumstances, then he was not negligent."

The first sentence of this charge does not state a correct principle of law, as is indicated by the later statement in the same charge of the correct rule.

In Pennsylvania Rd. Co. v. Lindahl, Admr., 111 Ohio St. 502,511, 146 N.E. 71, Judge Allen stated the correct rule, as follows:

"When Lindahl was confronted with the sudden emergency of finding himself in an automobile crossing a track upon which a train was bearing down, he was required to use only that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances. It was a question of fact whether Lindahl saw the train in time to avoid the accident so far as he was concerned, and used the requisite degree of care, and that question was rightly submitted to the jury." See, also, 29 Ohio Jurisprudence, 408, 424, Sections 26, 35.

In a great many cases, error in instructions of the court is predicated upon a more or less academic viewpoint of the language used.

In this particular type of charge, however, it is my opinion that the language used has great influence upon a jury. It is told in definite and simple language that there is adifferent degree of care required of one presented with an emergency from that required of one confronted with an ordinary situation.

The applicable true rule is so simple that any attempt to modify it is bound to create confusion in the minds of the jurors.

I think the objectionable portion of the charge was prejudicially erroneous to the plaintiff and constituted reversible error.

Where the court in an instruction presents to the jury a correct and incorrect rule, the latter predominates, and the error, if prejudicial, vitiates the entire charge upon the particular point involved. Westropp v. E. W. Scripps Co.,148 Ohio St. 365, 366, 74 N.E.2d 340; Bosjnak v. SuperiorSheet Steel Co., 145 Ohio St. 538, 539, 62 N.E.2d 305

But, as indicated in the majority opinion, there is no criterion before us to test the basis for the jury's verdict for the defendant, so that unless we are brought within the scope ofBush, Admr., v. Harvey Transfer Co., 146 Ohio St. 657,67 N.E.2d 851, the "two-issue rule" applies.

Obviously, the question of whether the plaintiff suffered any injury or consequent damages as a proximate result of defendant's negligence, if such existed, presents a separate issue in the case. Section 11377, General Code; 39 Ohio Jurisprudence, 576, "Trial," Section 2.

In this case the plaintiff alleged that she suffered injuries as the proximate result of defendant's negligence. The defendant denied that she was so injured. As far as the record shows the issue of injury and damage was free from error prejudicial to the plaintiff.

In Bush, Admr., v. Harvey Transfer Co., supra, the third paragraph of the syllabus is:

"The two-issue rule is that error in the charge of the court dealing exclusively with one of two or more complete and independent issues required to be presented to a jury in a civil action will be disregarded, if the charge in respect to another independent issue which will support the verdict of the jury is free from prejudicial error, unless it is disclosed by interrogatories or otherwise that the verdict is in fact based upon the issue to which the erroneous instruction related."

In that case where the two issues of negligence and contributory negligence were considered, it was held that the latter issue does not arise until the former is found to exist, so that the jury is, perforce, bound to first consider the issue of negligence, where contributory negligence is involved. Such, of course, is not the case here.

There seems, therefore, no reason for failing to apply the two-issue rule to the instant case requiring affirmance of the judgment for the reasons inherent in the rule, in spite of the error in the charge on negligence. It may well be that the jury found negligence, but not proximate injury and consequent damage to plaintiff. It is questionable, even if this court were aware of the injurious effect of the special charge on negligence, whether the judgment should be reversed if it was also apparent that the jury found no injury or damage.

The writer is bound to recede from his expression of approval of the charge here in question, as stated in Woodward v.Gray, 46 Ohio App. 177, 180, 188 N.E. 304.