Czerwinski v. Ward Sons Co.

This cause comes into this court on proceedings in error from the municipal court of the city of Cleveland, wherein a verdict on motion was directed in favor of the defendant, the Edgar T. Ward Sons Company, on the ground that under the allegations of the petition and the proof there was no evidence of such substantive character as required the submission of the case to the jury.

The basis of recovery was an automobile collision occurring at the intersection of Superior avenue and East Twenty-first street in the city of Cleveland, Ohio, and the allegations of the statement of claim are as follows:

First. Operating the truck at a speed greater than was reasonable or proper.

Second. Failing to sound a horn or give warning of intention to turn.

Third. Failing to make a square turn.

Fourth. Failing to exercise ordinary care and stop before striking plaintiff.

From a review of the evidence we are satisfied that the court committed no error in directing a verdict for the defendant on the ground that the plaintiff failed to establish by competent evidence any of the allegations of negligence enumerated in the statement of claim.

In State v. Robinson, 83 Ohio St. 136, 93 N.E. 623, 21 Ann. Cas., 1255, it is held that the effect of the evidence is for the jury, but whether there is any evidence, direct or circumstantial, is a question of law. That is a well-settled proposition, and the court in the case now here under consideration presumably had it in mind when it sustained the motion to direct.

In Kroll v. Close, Admr., 82 Ohio St. 190, 92 N.E. 29, 28 L.R.A. (N.S.), 571, it is held that where the reasonableness or unreasonableness of facts is to be determined it is a mixed question of law and fact. It is also held in the same case, however, that where the facts are clear and undisputed the question is purely one of law.

We think Smith's Admr. v. Curtis, 10 C.C. (N.S.), 149, 20 C.D., 29, particularly applies to the record in the case at bar. It holds that a trial judge is not warranted in submitting a case involving damages to a jury, where the evidence is of such inherent and manifest weakness that it is impossible for the court to say that the accident happened in the manner claimed by plaintiff.

In the case we have here stress is laid upon the claim that from an exhibit there were inferences to be drawn that produced a scintilla of evidence that ought to have been submitted under the authorities to the jury. It will be observed, however, that the exhibit consisted of a pencil sketch apparently made by counsel, and used in connection with the examination of witnesses, from the answers of whom certain designations were made upon the exhibit. It is claimed that under this exhibit, so marked in connection with the testimony, there was a scintilla of evidence. It is clear, however, that the exhibit itself was not competent, for the reason that there was no testimony of a credible nature tending to show that the exhibit was accurate and made by a person with such sufficient knowledge of the circumstances as to be able to produce it.

This situation makes the exhibit clearly incompetent, and cannot be considered in determining whether there was a scintilla of evidence to go before the jury.

Holding these views, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

LEVINE, P.J., and VICKERY, J., concur.