Slocumb v. Wurst

OPINION

By BARNES, PJ.

The above entitled cause is now being-determined on plaintiff’s appeal from the judgment of the Common Pleas Court of Franklin County, Ohio. The action is one for claimed wrongful death.

Plaintiff’s decedent was killed in an automobile accident occurring at the intersection of Mound Street and Kelton Avenue in Columbus, Ohio, about 10:30 A. M. Sunday, December 22, 1935. The car in which the deceased was riding was owned by her. and was being driven by one Paul Fryburg, a divinity' student at Capital University, Divinity Hall. Miss Slocumb and Mr. Fry-burg were very close friends, intending at some future date to be married, although no engagement had been announced. On the day in question Mr. Fryburg had borrowed the car to drive to Orient, Ohio, to conduct religious services at the Institution for the Feeble-Minded. At the time of and immediately preceding the accident the automobile driven by Mr. Fryburg was moving on Mound Street in an easterly direction. As they approached Kelton Avenue the speed of the car was reduced trom 20 to 25 miles per hour to 10 to 15 miles per hour.

At about this same time the defendant Genevieve Wurst was operating her automobile " on Kelton Avenue in a northerly direction and before reaching the intersection, at a speed of approximately 25 miles per hour. This speed was substantially reduced before reaching the intersection of Mound Street. One witness says, reduced to about 20 miles per hour, and according to the defendant, to a stop. Both cai’s were operated on their own right hand side of the street. It is an amazing circumstance that neither saw the approach of the other ear into the intersection.

Neither street was a main thoroughfare or any of the other classifications provided under the Code which prescribes right of way.

It therefore follows that the defendant, under the express terms of the statute, if lawfully driving, had the right of way. The applicable right of way statute reads as follows:

“Sec 6310-28a GC. Excepting where other-wise hereinafter provided the operat- or of a vehicle shall yield the right of way at the intersection of its path and the path of another vehicle to .the vehicle approaching from the right.”

Sec 6310-28 GC is applicable and reads as follows:

“Sec 6310-28 GC. ‘Right of way’ means the right of a vehicle to proceed uninterruptedly in a lawful manner in the direction in which it is moving in preference to another vehicle approaching from a different direction into its path.”

The day of the accident was very cold and the street somewhat slippery.

At the close of plaintiff’s testimony counsel for defendant Interposed a motion for a directed verdict, which motion was sustained and a verdict returned accordingly. Thereafter motion for new trial was overruled and judgment entered for the defendant on the verdict. This is the final order from which appeal on question of law was taken by the plaintiff. Appellant presents the following assignments of error:

“First: In sustaining defendant’s motion to strike from the petition the following words: ‘at a greater speed than would permit her to bring it to a stop within the assured clear distance ahead.’

“Second: In directing the jury to return a verdict in favor of the defendant.

“Third: In overruling plaintiff’s motion for a new trial.

• “Fourth: In that the decision and judgment are not sustained by sufficient evidence and are contrary to law.”

Very able and comprehensive briefs are filed by counsel representing the parties. Plaintiff’s amended petition contained the following allegations of claimed acts of negligence on the part of the defendant:

“Said defendant carelessly and negligently operated her said car by driving same at a rate of speed of approximately iorty miles per hour, at a speed greater than is reasonable or proper, having due regard to the traffic, surface and width of said highway. and of the other conditions then existing, without due regard for the safety and rights of occupants of other vehicles, so as to endanger the life, limb and property of other persons while in the lawful use of said highways, by entering said intersection without looking to the right or left and Without giving any signal by horn or otherwise, by failing and neglecting to stop her said car when she observed or by the exercise of reasonable care could have observed the car in which said decedent was riding as aforesaid in the path of her approaching car, and so as to collide with said car in which said decedent was riding, striking the same in the right side and at or near the region of the right rear wheel.”

The original petition contained the same allegations of negligence and also the following:

“At a greater speed than would permit her to bring it to a stop within the assured clear distance ahead.”

Counsel for appellant in his oral argument and also in his brief admits that there was no testimony supporting the claimed speed of 40 miles per hour. No witness placed the speed of defendant’s car at more than 25 miles per hour and that was before it reached the intersection.

Counsel for plaintiff in the original petition sought to • invoke the assured clear distance ahead provisions of §12603 GC. Upon defendant’s motion this allegation of the petition was stricken. This is one of the errors complained of. We think the trial court was right in striking this allegation of the petition. This provision of §12603, GC, could have no application under the alleged facts. Our court had under consideration a somewhat similar question in a Montgomery County case, Proctor v White, decided June 6, 1936, and found in 22 Abs IIS. On page 117 of the opinion Judge Hornbeck, speaking for the court, used the following language:

“The assured clear distance ahead statute, §12603, GC, has application to anything in the line of vision of the motorist in the assured clear distance ahead which is static or present long enough for him to observe it and bring his car to a stop, but can have no application to a movement by a person into the line of vision of a motorist so suddenly that exercising ordinary care he has neither the space nor opportunity to stop his car.”

To give effect to the assured clear distance provision of the Code would negative the provisions of the right of way sections.

The sole and remaining question for determination revolves around the action of the trial court in directing a verdict. As we understand this action was based on the decision of the Supreme Court in Morris v Bloomgren, 127 Oh St 147. After a careful examination of the record in the instant case we have earnestly considered this case, in 127 Oh St, supra. It is our conclusion that the cited case very positively supports the judgment of the trial court. As we view it every argument advanced by counsel for appellant is answered through this decision. It would serve no useful purpose to make any further analysis.

The judgment of the lower court will be sustained, and plaintiff’s appeal dismissed with costs.

Entry may be drawn accordingly.