Kronenberg v. Whale

Not being able to concur with my associates in affirming this judgment, I feel it my duty to give my reasons why.

I think this judgment should be reversed for two reasons: First, from a reading of this record, I cannot see that the plaintiff in error, defendant below, was guilty of any negligence whatever which contributed to this accident. He parked his car facing south at the proper place on the right side of East 111th street, which runs north and south, and he says that when he parked his car he turned on the tail light, and all I can make out of the evidence and the opinion of the majority of the court on that question is that there was credible evidence to show that the tail light was not lit. Granting that there is some evidence which might be regarded as not very credible, as it comes from the injured men that were riding in the car that struck the parked car, it does not at all approach the credibility of the evidence of the man who turned the light on and swears positively that he did. But possibly if this were the only question involved in this lawsuit, the jury might have been warranted in finding against the plaintiff in error on that proposition, although I think not.

The theory of this lawsuit as outlined in the petition was that there was no tail light or other warning to warn vehicles on the street. Apparently plaintiff believed that the absence of a head light, as it turned out afterwards from the frank statement of the defendant below that he did not turn on the headlights, was not regarded as having any causal effect in this law suit, and I must say that I think that is right.

The other warning spoken of in the third specification must be taken in connection with the absence of a tail light, bearing in mind always that this was a rear end collision. An analysis of the evidence in this case will show that even had there been a tail light, or in spite of a tail light, this accident would have happened. Plaintiff below testified that they were driving their car, and when they were met with the glaring head lights of an oncoming car from the south, which was coming at a high rate of speed and blinded them and prevented them from seeing, they slackened and immediately turned to the right and crashed into the standing car. If that was so they were too close to the car to have been warned by a tail light.

An analysis of the opinion of the majority of the court will show that great stress is put upon the fact of the absence of ahead light. I am coming to that later. It must be remembered that this car was parked on a city street, and the cause of the accident as detailed by the plaintiff in his petition and set forth in the evidence was the glaring headlight of the oncoming car. That glaring headlight must have put the car that was standing by the side of the street in bold relief, and surely the white light of the glaring headlight would so blend with any other lights around the car that they would have been lost sight of. To me the proximate cause of this injury was the glaring headlights of the oncoming car, together with the natural impulse of the driver of plaintiff's car to get away from the oncoming car, which impelled him to immediately turn to the right and instantly crash into this standing car. I do not see that the defendant below, plaintiff in error here, was guilty of any negligence whatever that contributed to this injury, and for that reason there should have been a verdict for the defendant below.

In this connection the case of Buddenberg v. Kavanagh, 17 Ohio App. 252, decided by the Court of Appeals of the Fourth Appellate District, sitting by designation in this district, is illuminating, and surely the decision of the majority of this court in this case is in direct contradiction of and overrules that decision. In that case the facts in favor of the plaintiff in the court below are stronger than they are in this. There the truck into which the driver of the automobile ran was parked on the wrong side of the street, in violation of the ordinance, but the cause of the accident was the same as in this case, namely, the glaring headlights of an oncoming car. The trial court directed a verdict for defendant, the Court of Appeals affirmed that judgment, and the Supreme Court refused to have the case certified to it for review, so in effect it is a ruling of the Supreme Court, and surely that case is a stronger one than the case at bar, and would give the plaintiff much more right to recover, because in that case there can be no question whatever of the negligence of the owner of the truck.

In Berry on Automobiles (4th Ed.), Section 430, is a discussion of this subject of the effect of glaring headlights, and an assertion that they, rather than the object into which the deflected car runs, are the proximate cause of the injury. See the case of Hammond v. Morrison, 90 N.J. Law, 15, 100 A. 154, and many other cases to the same effect.

But there is another grave, or if I may say so, still graver, error than the one already mentioned. The majority opinion says there was credible evidence to show that there was no tail light on this car. I have already said what I desire to say upon that question. The credible evidence apparently impressed the jury rather against the theory that there was a tail light. Turning to the charge of the court at about the conclusion thereof, a juror arose in the jury box and said:

"Juror: May I ask a question? What if the lights on the front of the car were not lighted?

"The Court: That is a violation of the ordinance.

"Juror: May I ask another thing?

"The Court: You have the ordinance which I read to you.

"Juror: We don't have to consider just the tail light being lighted?

"The Court: No. You consider all the conditions and circumstances surrounding the case at the time.

"Juror: Oh!

"The Court: Now, there isn't much more that the court can say to you. You are the sole judges of the facts in the case."

Later in the charge, after some conversation between the court and counsel, the court said this:

"I say to you as a matter of law that if the passenger was using ordinary care at the time and was not guilty of any contributory negligence on his part, as I have defined to you, but you do find that there was negligence on the part of the other car with the glaring headlights, in connection with the negligence of the driver of the Davis car in connection with the negligence of the defendant, if you so find, then, notwithstanding these facts, the plaintiff could recover from this defendant."

Out of the hearing of the jury, Mr. McMorris, attorney for the defendant, asked the court to correct his charge in this respect by stating to the jury that plaintiff's right to recover must be confined to the claims of negligence made in the petition; that no recovery in favor of the plaintiff would be warranted or permitted upon any negligence going to the absence of headlights on the parked car, as such a claim of negligence was not in the issues.

"The Court: As a whole I refuse to give that.

"Mr. McMorris: Save an exception. Then I ask the court to define more clearly to the jury the issues in that respect, if the court claims there is such an issue as to the headlights.

"The Court: I don't see how much more simple I could put it than I have.

"Mr. McMorris: A juror asked that question as I understand.

"The Court: I charge you that this plaintiff, in order to recover, must show by a preponderance of evidence some one or all of the acts of negligence complained of on his part. Now he specifically calls attention to certain acts of negligence in the violation of the ordinance. One of the questions put by a juror perhaps may be confusing. Now, the first charge of negligence of the violation of the ordinance is as follows:

"That the defendant unlawfully permitted his automobile to stand on East 111th street, a public thoroughfare, in the night time without a red light and a white light on the rear thereof; that he unlawfully permitted that automobile during the night period to stand on the street without a light visible two hundred feet from the rear of the car.

"The third specification of negligence is that the defendant failed to give any notice or warning to persons traveling on the street; that said automobile was standing on that street in that dark place. The question put by one of the jurors as to whether or not a violation of the ordinance would be affected by a failure to have front headlights. I say that you may consider the failure to have that headlight under the specification number 3 upon the theory that if there had been a front headlight on the car there would have been some notice or warning as that would shine upon the street and give the people some idea that the car was there. For that purpose only can you consider the failure, in the event there was a failure, to have headlights; the purpose is only one of notice or warning.

"Mr. McMorris: We except to the charge of the court in reference to the statement that there was a defense of contributory negligence in the answer and in the issues on the pleadings, and for the reason that no such issue is presented by the pleadings."

Now, from a reading of this record, one must come to the conclusion that the absence of a headlight was a good deal more important than the court seemed to think. The court in effect told the jury by this last charge that had there been a headlight there it would have given notice of the location of the car in the dark place. I have already disposed of that and do not wish to say anything more upon that question, except that at best it was a question for the jury to determine whether it would or would not have given notice of location. The court stated in so many words that it would give notice of the proximity of the car. That proposition I do not give credence to for I have tried many times in the city to test that proposition and I find that it is not true. Of course, I concede that had the car been standing in a dark place in the country, where there are no lights around, the headlight might diffuse some light to show that a car was parked there, but surely not with the glaring headlights, which were white lights, coming toward the driver of the wrecked car under the circumstances detailed in this record.

The error which I think is grave and for which this case should be reversed is in the court not telling the jury that the absence of a headlight in this case was not the proximate cause of the injury. He permitted them to speculate upon it, and in reading this record I cannot help but think it was because of the absence of a headlight that the jury brought in the verdict they did. It was a hind end collision and I think the record shows the tail light was lit. From the question of the jury, I think they would have come to that conclusion, but then the headlights were injected in there, and the court then submitted the question to the jury without pointing out to them that the headlights must have been the proximate cause of the accident before being given consideration by them. I think it was the duty of the court to have told the jury in so many words, plain and unequivocal, that inasmuch as this was a tail-end collision, the headlights had nothing to do with it and should not be considered by them. Apparently counsel for the plaintiff below thought it necessary to get the headlights into the record, and so after the verdict they were permitted to amend their pleading by specifying as an act of negligence that the headlights were not lighted. I think this was an abuse of discretion under the circumstances of this case. It is tried upon the theory that there was no tail light which would show 200 feet in the rear, although all the evidence shows that when the collision occurred the driver of the wrecked car was almost abreast of the standing car and turned immediately and crashed into it.

The other warning that is spoken of in the third specification did not and could not include headlights, and it was not so conceived by the pleader, and the court strained that language in order to make it include that possible act of negligence. It meant there were no tail lights to warn oncoming vehicles, or other warning. If the tail lights had been out of order and they could not light them, there would be a duty to give other warning. Surely the headlights would not have excused it. If a man was standing there and warned them, or there was some other form of warning, that is what the pleader had in mind, to guard the car from a rear end collision.

One cannot help but think, after the juror's questions and the colloquy between the court and counsel, and the charge of the court on that question, that undue prominence was made of the absence of headlights on this car, and the court nowhere properly charged the jury in this respect as to its not being the proximate cause. Then, in that situation, to amend the pleadings after the case was tried seems to me to be an abuse of discretion in order to sustain a verdict and judgment thereon which were not warranted as the case was tried.

For these reasons I think this case ought to be reversed. Think of it for a moment! Here is a man who parks his car, properly parks it, does what every man is doing all the time, turns on the tail lights, as he said he did, leaves his car on the street close up to the curb, parallel with the curb, and another man driving in the same direction, who is blinded by the glaring headlights of an oncoming car, turns to get out of those glaring headlights and immediately crashes into the standing car, and then recovers a judgment which would take away a man's earnings and savings for a life-time, without any fault or negligence, as I look at it, on the part of the owner of the standing car. Such holding can only be a menace to every owner of a car who is compelled to leave it standing on a street.

These are the reasons why I cannot concur in this judgment.