Crider v. Columbus Plastic Products, Inc.

Fess, J.

Appeal on questions of law from a judgment of the Common Pleas Court entered upon a verdict for plaintiff in the sum of $10,000.00.

On October 30, 1953, plaintiff’s decedent, an eleven-year old boy, and his companion then ten years old, were riding their bicycles in tandem fashion in an easterly direction on Mound Street approaching its intersection with Ryan Avenue. Ryan Avenue intersects Mound from the north and dead-ends at Mound, resulting in a so-called T-intersection. As defendant’s driver approached the intersection he stopped his truck in obedience to a stop sign, looked to his right and observed the two boys on their bicycles about 250 to 300 feet away and an automobile about 300 feet beyond the boys.¹ He then testified as follows:

“Q. Now, Mr. Finley, do you know how fast this motor vehicle was coming or could you estimate the speed? A. At approximately 20 or 25 miles an hour.

“Q. All right now, when you saw these three objects in Mound Street, sir, what did you do next then? A. I proceeded across Mound Street.

‘ ‘ Q. Did you watch the boys • on the bicycles at any time after that? A. No, sir, I did not see them after that.

“Q. Did you watch the automobile any time after that? A. No, sir.”

The driver of the truck crossed directly over Mound Street- and was entering the driveway of the defendant when decedent struck the right side of the truck, fell under the rear wheels, which ran over his body, resulting in his death soon thereafter.

The other boy testified that he observed the truck stopped two feet beyond the stop sign toward Mound Street and that after the boys were within fifteen or twenty feet away from defendant’s driveway, the truck darted out fast. Decedent’s companion “had started to ease on the brakes” and rode around the rear of the truck and stopped.

In our opinion, there was ample evidence to submit to the jury the issue of negligence on the part of the defendant.

On cross-examination, the other boy said that when- he saw the truck start across, he eased on his brakes so that he could go around the back of the truck, and that decedent did not, but slid off the seat onto the crossbar and his feet were not on the pedals. Defendant asserts that decedent violated Section 4511.53, Revised Code, prohibiting a person operating a- bicycle from riding otherwise than upon its regular seat; that he did not keep a lookout for approaching traffic; that he did not attempt to apply his brakes or to swerve his bicycle around the rear of the truck, but on the contrary rode directly into the side of the truck. But the contention of the defendant that the decedent, an eleven year old boy, may be held guilty of contributory negligence in this case as a matter of law is untenable. Mazza v. Greenstein, 82 Ohio App., 145. Karr v. McNeil, 92 Ohio App., 458, deals with a college student, 19 years of age, who violated a specific requirement. Furthermore, under the circumstances of the instant case, the question of proximate cause was for the jury. Glasco v. Mendelman, 143 Ohio St., 649. In the instant case, had the court undertaken to charge upon the provisions of Section 4511.53, Revised Code, it would have been required to comment on the doctrine of emergency, since the child, when confronted with the truck in his path of travel, may have exercised his best judgment under the circumstances. Nor may it be inferred that if the child had remained on the seat he could have avoided the collision. In any event, the failure of tbe court to charge on tbe provisions of Section 4511.53, Revised Code, was not prejudicial under tbe circumstances presented. Tbe court submitted tbe question of contributory negligence to tbe jury not only fully, completely and correctly, but repeatedly.

Defendant further contends that tbe verdict of $10,000.00 is excessive and was rendered under tbe influence of passion and prejudice. Other than tbe amount of tbe verdict, there is nothing in tbe record from which to infer passion or prejudice. Except in a case involving tbe death of a breadwinner of a family, tbe amount of a verdict in every wrongful death action is conjectural. Section 2125.02, Revised Code, provides that tbe jury may give such damages as it may think proportioned to tbe pecuniary injury resulting from such death. Ordinarily, upon review of tbe amount of a judgment in a wrongful death action, tbe reviewing court should not substitute its own speculation for that of tbe jury, unless tbe amount be manifestly against tbe weight of tbe evidence. In Immel v. Richards (1950), 154 Ohio St., 52, a majority of tbe Supreme Court affirmed a verdict of $5,000.00 for tbe wrongful death of a nine months old child, over a vigorous dissent of three members of tbe court.

Although tbe members of this court might have awarded a lesser amount, upon review we may not substitute our judgment for that of tbe jury. Nor do we find that tbe verdict as to tbe amount is manifestly against tbe weight of tbe evidence.

Judgment affirmed and cause remanded to tbe Common Pleas Court for execution.

Deeds, J., and Htjnsicker, P. J., concur.

1 . The driver testified the boys were riding side by side, but there is credible evidence that the decedent was riding three or four feet ahead of his companion.