Akers v. SaulsburyAkers v. Saulsbury
For Plaintiffs-Appellants: MICHAEL M. HEIMLICH, 103 North Union Street, Ste. E, Delaware, OH 43015.
For Defendants-Appellees: JOHN C. NEMETH, 21 East Frankfort Street, Columbus, OH 43206.
O P I N I O N
{¶1} Faith and Dewey Akers appeal a judgment of the Court of Common Pleas of Delaware County, Ohio, entered in favor of defendants-appellees Julia and Brian Saulsbury and Grange Mutual Casualty Company after a jury verdict finding appellee Julia Saulsbury was not negligent in the operation of her vehicle. Appellants assign four errors to the triаl court:
{¶2} “I. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANTS BY DENYING THE APPELLANTS’ MOTION FOR DIRECTED VERDICT.
{¶3} “II. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANTS BY DENYING THE APPELLANTS’ REQUESTS FOR ADDITIONAL JURY INSTRUCTIONS ON THE ISSUE OF RIGHT-OF-WAY.
{¶4} “III. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANTS BY IMPROPERLY INSTRUCTING THE JURY ON THE ISSUE OF RIGHT-OF-WAY.
{¶5} “IV. THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶6} The record indicates on or about March 25, 2004, appellant Faith Akers was employed as a mail carrier for the United States Postal Serviсe. She was delivering mail, traveling southbound on U.S. 23 just north of Delaware, Ohio. Appellant Akers was operating her vehicle on the berm, placing mail in the mailbоxes. As she proceeded along the berm, appellee Julia Saulsbury made a left turn into a private drive in front of appellant‘s vehicle and the two vehicles collided.
I.
{¶8} In their first assignment of error, appellants argue the trial court erred by overruling their motion for direсted verdict.
{¶9} “When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor оf the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.”
{¶10} Under
{¶11} Appellants argue appellant Faith Akers was travelling within the dedicated right-of-way, and had the right to proceed uninterruptedly in the same direction of travel. Appellants concede if she were to proceed unlawfully, she would lose the right-of-way, but otherwise she had a preference over other drivers entering her path.
{¶12} In our prior case, we found appellant‘s presumptive right-of-way must be judged under the standard of ordinary cаre. We found it was a question of fact for the jury to decide whether appellant‘s presumptive right-of-way was negated by a lapse of ordinary care.
{¶13} The jury completed interrogatories in addition to their verdict form. With Jury Interrogatory #1, the jury found appellant Faith Akers did not have the right-of-way prior to the collision. We conclude the trial court did not err in refusing to direct a verdict.
{¶14} The first assignment of error is overruled.
II & III
{¶15} In their second assignment of error, appellant argues the trial court erred by refusing to give their requested jury instructions on the issue of right-of-way, and in their third assignment of error, appellants argue the court improperly instructed the jury on the issue of right-of-way.
{¶16} In general, a court should give party‘s requested jury instruction if it is a correct statement of the law as applied to the facts of the сase. Murphy v. Carrollton Manufacturing. Co. (1991), 61 Ohio St.3d 585, 575 N.E.2d 828. The determination whether to give a jury instruction is a matter left to the sound discretion of the trial court.
{¶17} Appellants asked the trial court to instruct the jury regarding
{¶18} Appellees assert appellants are confusing “apples and oranges“. The width of the dedicated right-of-way refers to the strip of property to be used as a road, and is different from the question of which driver has the right-of-way while driving.
{¶19}
{¶20} The trial court instructed the jury that according to
{¶21} The trial court‘s instructions mirrored the language of the Revised Code, and correctly state the applicable law.
{¶22} The second and third assignments of error are overruled.
IV
{¶23} In their fourth assignment of error, appellants argue the verdict is against the manifest weight of the evidence.
{¶24} A reviewing court may not disturb the trial court‘s decision as against the manifest weight of the evidence if the decision is supported by some сompetent and credible evidence. C.E. Morris Company v. Foley Construction Company (1978), 54 Ohio St. 2d 279. The Supreme Court has repeatedly held the term abuse of discretion implies the court‘s attitude is unreasоnable, arbitrary, or unconscionable. See, e.g., Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 450 N.E. 2d 1140. This court may not substitute our judgment for that of the trier of fact in reviewing arguments of manifest weight. Pons v. Ohio State Medical Board (1996), 66 Ohio St. 3d 619, 621, 614 N.E. 2d 748.
{¶26} The fourth assignment of error is overruled.
{¶27} For the forgoing reasons, the judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE
WSG:clw 0915
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed. Cost to appellants.
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE