Masters, Admx. v. Von Lehmden

The petition and the reply charged ordinary negligence and willful and wanton negligence.

The defense was in the nature of a general denial, charged contributory negligence, and the violation of a city ordinance with reference to crossing at other than a designated crossing of a street.

The trial of the case resulted in a verdict for the defense. From that verdict, and judgment entered thereon, error is prosecuted to this court.

There are several specifications of error, but the only important point of error presented in the record is the complaint that the court failed to charge on willful and wanton negligence, although such charge was requested by the plaintiff, and was one of the issues in the case made by the pleadings.

The trial court charged fully on the doctrine of last clear chance, which, under the facts of the case, is a doubtful issue.

It appears from the record that plaintiff's decedent, a workingman at a foundry, in company with two other men, at the close of their work, started across Colerain avenue, at a place other than a designated crossing. They had reached the middle of the street, and were on what is known as the devil's strip between two lines of tracks of the street railway company. They had paused there for some reason, probably to await the passing of vehicles, or a street car, going in the opposite direction. It was plain daylight, and while in this position the defendants' truck, driven by an employee, came down the street at a "terrific rate of speed," estimated by a witness at forty to fifty miles an hour, and the reasonable inference from the evidence is that he was headed directly toward these men in the middle of the street. The driver states he saw the men when he was 75 to 100 feet away. It appears that the three men realized their dangerous situation with reference to the rapidly approaching truck. Two of the men stepped forward and decedent stepped backward. When too late to accomplish the purpose, it seems that the driver of the truck undertook to turn out to avoid hitting the men, but struck Masters, killing him.

We are of opinion that these facts present a question for the jury of willful and wanton negligence, within the meaning of that phrase, as defined in the cases of Higbee Co. v. Jackson,101 Ohio St. 75, 128 N.E. 61, 14 A.L.R., 131, and Payne, Dir. Genl.of Rds., v. Vance, 103 Ohio St. 59, 133 N.E. 85.

The trial judge in refusing to charge on willful and wanton negligence conceived the idea, as indicated by his memorandum, that in charging on the last clear chance doctrine he had made an easier case for the plaintiff administratrix than had he placed the burden of proving willful and wanton negligence on her. When we consider that under the decision in the case of Schell v. DuBois, Admr., 94 Ohio St. 93, 113 N.E. 664, L.R.A., 1917A, 710, the violation of an ordinance is negligence per se, it follows that the deceased was continuously negligent per se until struck by the defendants' machine, and, therefore, continuously guilty of contributory negligence. The only basis of recovery in this action, under the law and the facts, would be on the ground of willful and wanton negligence against which contributory negligence is not a defense.

The trial court, therefore, committed error in failing and refusing to charge directly on the question of willful and wanton negligence, and for that error the judgment will be reversed, and the cause remanded to the court of common pleas for a new trial.

Judgment reversed and cause remanded.

CUSHING, P.J., and ROSS, J., concur.