McFadden v. Breuer Transportation Co.

CONN, PJ,

(Dissenting).

The admission of negligence on the part of the defendants as a proximate cause of the death of John E. McFadden, plaintiff’s decedent, and the stipulation of the parties as to amount of damages in the event plaintiff is entitled to recover, eliminated all issues raised on the pleadings and the evidence, excepting that of the contributory negligence of plaintiff’s decedent. This issue was submitted to the trial court, trial by jury having been waived. Under these circumstances, the trial judge was the trier both of the facts and of the law.

At the conclusion of all the evidence, defendants moved to dismiss the petition of plaintiff and enter judgment for defendants on the ground that plaintiff’s decedent was guilty of contributory negligence as a matter of law which proximately caused or contributed to his death. This motion was overruled and the issues of both fact and law were determined by the trial court in plaintiff’s favor and judgment entered accordingly.

The motion of defendants for judgment was essentially a demurrer to the evidence. The issue raised on this motion, under well settled rules of procedure, imposes on the trial court the duty of determining whether or not, on the whole record, there was credible evidence, together with all reasonable inferences arising therefrom, which tended to establish the issue of defendant’s liability.

None of the witnesses called saw the collision. The undisputed evidence shows that the roll of steel fell on the easterly lane of the highway, where it made a sizeable dent in the road and that the distance from this point to the place where it was finally located in the easterly lane was 109 feet; that it was upgrade from the point where it fell into the highway to the place where it lay; that the roll of steel had a considerable dent on its flat side extending from the center toward the rim, the deepest part of the dent being at the center and that there were no skidmarks on the pavement.

From these facts it may be reasonably inferred that the truck from which the steel roll fell was moving southerly; that the roll of steel, after falling, was in an upright position, did not remain static and rolled to the place where the collision occurred; that at the time of the impact, it was in an upright position with one of its flat sides facing traffic moving northerly in the easterly lane; that from the character of the dent, the demolished condition of the automobile, the noise of the crash and the car’s immediate “roll into the ditch’” it is inferable that the impact was one of great force and that from the absence of skidmarks it may be inferred also that the roll of steel suddenly came into the path of the approaching vehicle. A further inference arises that the testimony of defendant’s driver would be unfavorable to them from the failure of defendants to call him to testify, or explain his absence.

In view of the evidence and the inferences which reasonably appear to arise, an issue of fact was presented and the trial court did not err in overruling defendant’s motion for a judgment.

A more difficult question arises on the fact issue of discernibility of the roll of steel, assuming that the assured clear distance of plaintiff’s decedent was not cut down or lessened by its sudden appearance into the easterly lane of the highway. There is credible evidence disclosing that the roll of steel was almost as dark as the pavement and that its color was almost identical with the pavement.

The Ohio cases cited in the majority opinion clearly establish that the operator of a motor vehicle is guilty of contributory negligence, as a matter of law, when his vehicle collides with a substantial object in the highway, unless “because of circumstances over which he had no control, compliance with the law was rendered impossible.”

Impossibility of compliance may arise as a fact issue in-certain instances, excluding those related to weather conditions, character of the highway or certain conduct of other users of the road, when the court can not say that the assured clear distance ahead rule applies as a matter of law: Somewhere between an object on the highway, let us say, of the size of a motor truck and an object the size of a small nail or a wire stretched across the highway, a fact issue arises as to whether or not the particular physical object is substantial and discernible. In other words, at what point in respect to size is a physical object in the highway non-discernible to the operator of a motor vehicle so as to make it impossible to comply with the statute? When reasonable minds arrive at different conclusions in this regard a question of fact arises.

It is my conclusion that the trial court did not err in overruling defendants’ motion for a directed verdict and that its finding and judgment is not manifestly against the weight of the evidence or contrary to law.