165 N.E. 737 | Ohio | 1929
Seldom has a case been presented to *201
this court where a recovery of damages had so little merit as this case develops. In its opinion the Court of Appeals frankly states that it might have come to a different conclusion from that arrived at by the jury had it been the triers of fact in the first instance. Counsel for plaintiff in error make the single complaint that the trial court should have sustained its motions for a directed verdict. For that reason we have recited the facts in greater detail than usual, and have given the account of the accident as related by the plaintiff himself. In the disposition of the case we are accepting as true the testimony of the plaintiff and the reasonable inferences deducible therefrom by fair-minded men. Jacob Laub Baking Co.
v. Middleton,
Excessive speed of the car was not an issue, since it was not pleaded as a proximate cause of the accident; the plaintiff himself testifying that it was approaching him at a normal rate of speed. Negligence in failing to give warning of its approach was pleaded as one of the proximate causes of the accident. However, the plaintiff testified that, prior to crossing the street, not only was he warned of the car's approach by Ormonde, his companion, but that he saw the car twice before he attempted to pick up his bundle. The plaintiff cannot complain of the failure to give warning of such approach, for he testified that he saw and knew of the approach in ample time to save himself from injury. For authorities upon that point seePennsylvania Rd. Co. v. Lindahl, Admr.,
While the plaintiff in his petition pleaded the "last clear chance" rule, there was no proof offered tending to prove a state of facts making the rule applicable to the plaintiff. Even if we assume that the defendant was negligent, as charged by the plaintiff, the proof discloses that the negligence of the plaintiff continued and concurred with the negligence of the defendant, if there were such, in producing the injury.
The "last clear chance" rule presupposes antecedent fault or negligence on the part of the plaintiff; it does not apply in a case where the continuing negligence of the plaintiff and the concurring negligence of the defendant both contribute to produce the injury. Drown v. Northern Ohio Traction Co.,
The motions of the defendant for a directed verdict should have been sustained. Proceeding to render the judgment the courts below should have entered, the judgment of the Court of Appeals is reversed, and judgment is rendered for plaintiff in error.
Judgment reversed and final judgment for plaintiff in error.
MARSHALL, C.J., KINKADE, ROBINSON, MATTHIAS, DAY and ALLEN, JJ., concur. *206