Booksbaum v. Cousins

The parties stand in this court in the same relative order in which they appeared in the Court of Common Pleas. The action is one for loss of services, loss of companionship, and for medical and hospital expenses incurred by the plaintiff on account of personal injuries sustained by his wife as a result of defendant's automobile, in which plaintiff was riding, going into a ditch and upsetting.

Briefly, the facts in this case are as follows: Plaintiff, Bennie Booksbaum, and his wife were invited by either defendant or his wife to accompany them in their car to a party to be given in Crestline on November 2, 1933. The party, which consisted of three or four automobile loads, met at the Cousins home on Park Avenue, West. Mr. Cousins on leaving his home, turned north on Sycamore Street to Park Avenue, West, went north to West Fourth Street, and then west on West Fourth Street, which is U.S. Route 30 N. When they were about six miles west of Mansfield they caught up with a wagon loaded with hay, being driven in a westerly direction by one John Bixler, and to the rear of the wagon was attached a buggy. There were no lights of any kind on the buggy. When Mr. Cousins saw the wagon he applied his brakes and slowed down. He started to go around on the left hand side, but saw a truck approaching from the opposite direction. He then turned to the right to avoid hitting the buggy and attempted to go around the wagon on the right side. The Cousins car had almost stopped when he turned to the right to go around the wagon and buggy; he was driving slowly and was apparently getting around the wagon when the rear end of his car slipped to the right and into the ditch. There is some dispute in the testimony regarding the speed at which Mr. Cousins was driving. The accident happened on the west slope of a hill.

Plaintiff alleges in his petition that it was one thousand feet from the crest of the hill to the scene of the accident. The record discloses that the witnesses stated that it was more than one thousand feet.

Plaintiff in error prosecutes error to this court to reverse and set aside the judgment of the court below. The errors complained of are:

1. The court erred in excluding evidence offered by plaintiff, to which plaintiff at the time excepted.

2. The court erred in the admission of evidence offered by the defendant, to which plaintiff at the time excepted.

3. The court erred in submitting to the jury defendant's requests to charge before argument, to which plaintiff at the time excepted.

4. The court erred in his charge to the jury, to which plaintiff took exceptions.

5. The verdict was not sustained by the evidence and is contrary to law.

6. For other errors of law appearing at the trial and to which exceptions were taken by plaintiff at the time.

7. For other errors manifest on the face of the record.

On the first claimed ground of error, to wit, that the "court erred in the exclusion of evidence offered by the plaintiff," we have made a careful reading of the record before us in order to determine the nature of evidence excluded, and bring to mind the holding of the Supreme Court of Ohio in Reserve Trucking Co. v. Fairchild, 128 Ohio St. 519,191 N.E. 745, as follows:

"The term `wanton negligence' implies the failure to exercise any care for the safety of those to whom a duty of care is owing when the wrongdoer has knowledge of the great probability of harm to such persons which the exercise of care might avert and exhibits a reckless disregard of consequences."

We are also mindful of the holding of this court when the above case came before us on error prosecuted by the defendant, in which this court used the following language: "After having a knowledge of the danger, did he use any care whatever to avoid the same?"

The testimony sought to be introduced referred to speed, and to conversations held some three or four miles from the place of the accident. We are at a loss to determine how these conversations could have had any connection with the accident; at such time the defendant certainly had no knowledge of the danger. This being true we are of the opinion that these conversations were not competent and were properly excluded by the court.

We have examined the requests to charge before argument, and having examined the testimony as disclosed by the record made in the court below we are of the opinion that these requests stated a correct statement of the law applicable to this case, and it would have been reversible error if the court had refused to give them. One of the requests objected to was as follows:

"The court charges the jury that it was the duty of Bixler, or whoever was in charge of the transportation of the hay and buggy, to display a light on the buggy visible from the rear two hundred feet, and failure on the part of Bixler to comply with this statute is in and of itself negligence, and if the failure to display a light was the proximate cause or a proximate cause of the accident, Bixler or the one responsible for the load of hay and buggy being upon the highway would be liable on the ground that he had been guilty of negligence."

This was a correct statement of the law. By so saying the court in no way excluded the defendant from liability in the instant case, if the jury found him guilty of wanton misconduct.

We therefore find that no error has intervened in this case, and accordingly the finding and judgment of the court below will be, and the same hereby are, affirmed.

Judgment affirmed.

MONTGOMERY and SHERICK, JJ., concur.