255 N.E.2d 869 | Ohio Ct. App. | 1969
Shortly after midnight on February 10, 1965, Mrs. Anne DiFederico, plaintiff-appellant's decedent, and her husband, Julio DiFederico, plaintiff-appellant and executor of his wife's estate, left Stouffer's University Inn where they were guests and walked north on the area west of the edge of Olentangy River Road, crossed the road at Riverview Drive and continued north along the road at or near the east edge thereof. A short distance north of Riverview Drive, Mrs. DiFederico, who was walking to the left of her husband, was struck from the rear by an automobile driven by defendant, appellee herein, Donald M. Reed, and died of the injuries sustained in the accident. Olentangy River Road is a 4-lane divided highway carrying two lanes north, each 11 feet wide, and two lanes south, each 11 feet wide. There is a grass median strip 8 feet wide. The paved road has white lines on the edges. *139
The case was tried to a jury, which returned a verdict favorable to the defendant, from which verdict and the judgment entered pursuant thereto, filed May 2, 1968, this appeal is taken on questions of law. A motion for a new trial was overruled and entry filed accordingly August 14, 1968.
Plaintiff's appeal is predicated on three assignments of error: (1) The trial court should have submitted only one form of verdict to the jury, and that favorable to the plaintiff, because the defendant was negligent as a matter of law, and his negligence was the sole proximate cause of the decedent's death; (2) the court erred in refusing to give plaintiff's requested special instruction numbered 8, charging that defendant violated the assured-clear-distance-ahead rule and was guilty of negligence as a matter of law; and (3) the court erred in giving special instruction numbered 7, requested by defendant, instructing the jury to determine whether a usuable walk or path existed along the roadway where the accident occurred.
The formal assignments of error focus attention on the decision of the trial court to submit the questions of defendant's possible violation of the assured-clear-distance-head rule, and the possible contributory negligence of the decedent, to the jury. Plaintiff argues that both questions should have been decided by the court as a matter of law in view of the evidence submitted during the course of the trial. At the risk of oversimplication, the submission of those questions will be the approach in this review.
To call attention to the classic Ohio assured-clear-distance-ahead cases, familiar to bench and bar, is to become trite, but in the instant case a review ofSmiley v. Arrow Spring Bed Co. (1941),
McFadden provides the rule that failure to comply with the assured-clear-distance rule is not a question for the trier of the facts where there is "no substantial evidence" (paragraph one of the syllabus) that (1) the object with which the operator collided was ahead of him in his lane of travel, (2) that it was "reasonably discernible," and that (3) it came into his lane sufficiently ahead of him to have made it possible, in the exercise of ordinary care, to stop and avoid a collision. It is emphasized that Smiley speaks of a "discernible" object andMcFadden modifies by saying a "reasonably discernible" object. We note also that at page 435 the court, as if to clarify, says:
"If, however, conflicting evidence is introduced as to any one of such elements necessary to constitute a violation, a jury question is created."
Bickel adds only that the discernible object may be static or moving ahead at a normal speed or at a slow speed.
At this point a look at two basics is necessary, the "object" and the "path ahead." Courts have confused the path concept by using slightly differing language, i. e., "path or line of travel," "lane of travel," and, in rarer instances, "line of vision." The recent decision by the Supreme Court in Pallini v.Dankowski (1969),
"* * * If all traffic lanes were the exact width of the vehicles moving therein, no problem could result. Since such is not the case, however, a discernible object could *141 be within a motorist's traffic lane of travel, but not within his directional line of travel, and the statute would have no application."
This new "directional line of travel" concept has important impact on assured-clear-distance-ahead problems, especially those involving pedestrians.
Whether the object in the directional line of travel is "discernible" or "reasonably discernible" generally presents no problem so long as the trial court is dealing with a road grader, an unlighted truck or trailer, a roll of steel, or even an oil drum, but much difficulty arises when the object is a smaller object such as a pedestrian, and the pedestrian problem becomes much more acute in these days of expressways, 4-lane divided highways, and faster moving vehicles.
Not only have the decisions of the courts given us some clean-cut examples of discernible objects, but in those cases the courts also have consistently held that fact to be controlling in finding a violation of the assured-clear-distance-ahead rule as a matter of law. Illustrative of this group of cases is the road grader case, Carpenter v. McCourt Construction Co. (1957),
"2. The assured clear distance rule is not applicable unless it be shown that the defect is discernible in time to permit the driver to avoid it."
In those cases, and many others, the obstructing object *142 must be discernible to invoke the operation of the assured-clear-distance-ahead rule.
There are many pedestrian cases in Ohio with varying fact patterns. Only a few decisions appear to consider carefully the basic question as to discernibility. This Court of Appeals, then the Second Appellate District, does approach the problem inSmith v. Torbett (1956), 75 Ohio Law Abs. 174, which is a case most important to this decision. The court held that it was not error to charge on contributory negligence, since the plaintiff was walking along the road there was "the possibility that because of her wearing apparel, dark in color, she might not be visible to an on-coming motorist in time to prevent injury to herself."
The decision of the Miami County Court of Appeals in Gates v.Dills (1967),
"The object which obstructs traffic must be discernible before the statute can apply. This should not mean an object which Bailey did see but an object which Bailey should and could have seen if he was operating his motor vehicle in the manner required by law."
No attempt was made to review decisions of other jurisdictions in connection with this discussion, but some came to notice incidentally. Two are noted as having something to say as to the discernibility of a pedestrian. Johnson v.Anoka-Butte Lumber Co. (1942),
A Connecticut case, Schmeiske v. Laubin (1929),
"* * * in the absence of controlling legislation, a pedestrian has the right to walk, dressed in dark clothing, along a dark road, with his back to approaching traffic, but if he does so he is bound to exercise care proportionate to the danger inherent in such an undertaking. * * *"
At page 210, the court elaborates, as follows:
"* * * because a dark object, resting upon a dark background, may not be clearly visible under all conditions at a distance of two hundred feet in front of a motor vehicle equipped with headlights which meet the statutory requirements, the failure of the operator of such a vehicle to see such object at that distance may not conclusively establish a lack of due care on his part. The court did not err in submitting to the jury the question of the negligence of the operator of the defendant's car."
The court held that for the operator, with proper headlights, it was not negligence per se in not seeing the pedestrian and that the possible contributory negligence of the pedestrian was for the jury.
The assured-clear-distance-ahead rule is applicable in those situations where a "discernible" object is ahead of the motorist and within his "directional line of travel," and it makes no difference in the applicability of the rule if the "object" happens to be a pedestrian.
Several common-law rules governing the use of the *144 road by a pedestrian and his rights and duties while traveling thereon are noted by the decisions, particularly those from states having no statute relating to the pedestrian. Those rules influence decisions in states having statutory regulations. Some of the common-law rules noted are: the pedestrian has a right to travel anywhere upon a public highway; a driver is bound to anticipate the presence of pedestrians upon the road; pedestrian and driver have equal and concurrent rights to travel upon the highway, etc. It is equally important to note also the common-law rule that the pedestrian on the highway must exercise reasonable care for his own safety considering conditions existing on the highway at the time he travels on it. (41 A.L.R. 1927, etc.)
The influence of the common-law rules may not be denied, but Ohio does have a statute. The text writers discuss "Pedestrians Walking Along Highway or Street," 7 American Jurisprudence 2d 948, Section 400, and introduce the subject by saying, "In the absence of an applicable statute or ordinance, a pedestrian has the right to walk longitudinally along a highway * * *." (See, also, 7 American Jurisprudence 2d 603, Section 10.) Ohio does have a statute, the terms of which are important to this discussion. Section
"Where usuable walks or paths are not provided parallel to the street or highway, pedestrians may walk along or upon the traveled portion of such street or highway, and, when practicable, they shall face the approaching traffic and shall exercise due care to avoid approaching traffic."
That section is applicable in the instant case and supersedes any common-law rule to the contrary.
A rather early Ohio case, Curtis v. Hubbel (1932),
"There being no crosswalks or cinderpaths paralleling highway, pedestrian had right to walk on right side of road as regards motorist's duty.* * *"
Because the instant case is concerned with an "approaching" vehicle, we note a decision construing Section
The case of Perry v. Baskey (1952),
"* * * `does not enjoin a specific duty but rather a rule of conduct, as it left something to the plaintiff's discretion by the proviso that the pedestrian "where practicable, shall face the approaching traffic" and also by the further provision that such pedestrian shall exercise ordinary care.'" *146
If it appears disturbing that the Court of Appeals quote does not end with the phrase "to avoid approaching traffic," it is noted that those words are included by the Supreme Court in paragraph two of the syllabus. Still further, it must be said that because the practicing attorney may distinguish "approaching" traffic and "overtaking" traffic, it does not follow that the Legislature makes that distinction. On the contrary, it must be presumed that approaching is given its ordinary meaning as supplied by Webster. Approaching traffic is traffic that "advances or maneuvers toward one."
The rule in Perry, supra, positively stated, is that a pedestrian who walks along a highway shall "where practicable" face the oncoming traffic and shall "exercise due care" to avoid the traffic approaching. Whether it is "practical" to face the traffic and whether the pedestrian used "due care" are questions for the jury as well as the question produced by the first paragraph of the section, whether "usable walks or paths" parallel the highway.
Plaintiff strenuously urges, in brief and oral argument, that the question of violation of the assured-clear-distance-ahead rule by the defendant should not have gone to the jury, particularly insisting that the jury should not have been permitted to decide whether Mrs. DiFederico was a discernible object. Plaintiff, however, puts in issue many factors, including in his petition as specifications of negligence, i.e., speed of defendant's vehicle, all of the assured-clear-distance factors set out in Smiley and McFadden,supra, failure to keep a lookout, as well as that defendant diverted his course to the right or failed to divert it to the left. Evidence adduced bears upon speed, discernibility, position of plaintiff's decedent on the road, adequacy of lights (and lookout), and possible change of direction.
Many other decisions deal with the question of what should go to the trier of the facts in negligence cases, including assured-clear-distance-ahead cases. McFadden, supra, provides a negative approach, saying that there is no question for the jury as to possible failure to comply *147 with the assured-clear-distance-ahead rule where there is "no substantial evidence" that the object was located in the operator's lane of travel (now directional line of travel), and reasonably discernible, static or moving ahead, and came into the lane of travel a reasonable distance ahead. Other cases approach the matter positively, such as Rothe v. Dworkin (1946), 47 Ohio Law Abs. 452, dealing with the speed factor. The court held as follows:
"* * * factual questions arising from testimony of witnesses as to the speed of defendant's vehicle, the distance of such vehicle from the left hand curb, along with other circumstances connected with the accident are questions for submission to the jury."
Another speed case is Gutter v. Frazer (1963),
Pedestrian cases are abundant in Ohio. There are many kinds of factual situations, pedestrians at intersections, in and out of crosswalks, as well as traveling longitudinally on a highway. A substantial number of pedestrian cases go to a jury. It is not always clear whether they go to the jury on the assured-clear-distance-ahead question or simply to determine if there be contributory negligence on the part of the pedestrian. Some clearly approve submitting the applicability of assured clear distance ahead to the jury. Typical of those cases isGlasco v. Mendelman (1944),
"* * * the question of whether the driver of such automobile was guilty of a violation of `the assured clear distance ahead' provision of the then existing statute, was properly submitted to the jury."
Jahraus v. Fryman (1954), 70 Ohio Law Abs. 558, follows the syllabus rule in Glasco and implies that the "proper lookout" question is closely related if not a part of the assured-clear-distance-ahead question.
A decision of this court, Hardy v. Crabbe (1961),
"* * * the assured-clear-distance-ahead rule is applicable, and the refusal of the court to charge the jury on such rule is prejudicial error."
Plaintiff cites Meuer, Admx., v. Doerflein (1936),
"`Whether the principal defendant was negligent in not sooner seeing the plaintiff and in not so operating his automobile with reference to the concurrent right of the plaintiff and himself to travel upon the public way as to avoid a collision, was for the jury.'"
Many times the question as to the violation of the assured-clear-distance-ahead rule is properly for the jury. *149 Fact patterns such as found in Sprung, Admr., v. E. I. duPont deNemours Co. (1939), 30 Ohio Law Abs. 278, appear to be the exception rather than the rule.
Smiley, supra, also supplies the rule which offers relief from the assured-clear-distance-ahead rule. Relief from the rule comes when the assured clear distance ahead is suddenly cut down. Some times the courts speak of sudden emergence, or simply of an emergency. Plaintiff urges that the trial court was wrong in charging the jury as to possible relief from the assured-clear-distance-ahead rule. Perhaps the evidence as to such a sudden move by the plaintiff into the directional line of travel of the defendant is not too compelling, but such move is possible under the evidence. Mr. DiFederico says that he and his wife changed places while walking along the highway. He said she was walking on the white line — "I guess." Tire marks made by the defendant's car were four feet from the edge of the road, and the defendant said he followed a car ahead which did not change direction, both cars being in the middle of the right lane. The evidence is sufficient to support the fact that plaintiff's decedent could have moved suddenly to a position where the right front headlight of defendant's car could strike her.
Hemmelgarn v. Bailey (1950), 61 Ohio Law Abs. 179, supplies the basic rule that assured clear distance ahead does not apply "when a discernible object obstructing the path or line of travel suddenly enters within the clear distance ahead * * *."Elfers v. Bright (1958),
When relief from the rule is sought, the question is most commonly for the jury. Typical cases are Reeves v. The Joe O.Frank Co. (1945),
Plaintiff cites Erdman v. Mestrovich (1951),
"* * * unless there is evidence tending to show that the pedestrian came into the operator's assured clear distance ahead at a point sufficiently distant ahead of the motor vehicle as to have permitted the operator, in the exercise of ordinary care, to have stopped his motor vehicle before striking the pedestrian."
Miller v. Jackson (1951),
The trial court told the jury that the issue in this case was primarily — Was the defendant negligent? and, on the other hand, Was the plaintiff (this decedent) negligent? The court related the question of proximate cause to each. Plaintiff urges that the defendant was negligent as a matter of law, which negligence was the sole cause of the death of Mrs. DiFederico. That position requires that the evidence clearly shows no act or conduct on the part of the decedent that could be regarded as negligence and a proximate cause of her death. Plaintiff's argument would be more compelling but for the statutory limitations on the movements of pedestrians on highways found in Section
If there was a "usable walk or path" paralleling the highway, and the decedent was not on the path or walk but chose to use the road, she could be contributorily negligent *151 if she walked without due care. If it were "practicable" to walk so as to face oncoming traffic on this occasion and the DiFedericos did not, the decedent would be negligent. The evidence shows a grass median strip 8 feet wide, and a gravel berm 27 feet in width, at the point of impact. Plaintiff's Exhibit 6 shows a section of the berm near the scene of the accident, which shows the berm to have some holes filled with water, but the balance of the surface appears to be passable. The question — for the jury — is whether Mrs. DiFederico could walk on the berm but, as a matter of personal choice, preferred to walk on the road. This becomes a question, the answer to which is most significant, when the evidence shows that Mr. DiFederico changed places with his wife and then walked on the berm himself. If the edge of the road was "usable" by the man, would it not also be "usable" by the woman?
Possible violation of these phases of the "cinder path" statute could or would be contributory negligence, to say nothing of the "due care" to be exercised to avoid "approaching" traffic. The possible contributory negligence of the decedent not only involves consideration of these specific matters of statutory violation but the much larger question of whether a reasonably prudent person would have acted as this decedent did under all the surrounding circumstances and conditions prevailing on that given night in this particular place. The "reasonably, prudent person" concept might even be the test to apply to a person walking on the edge of a heavily traveled roadway, dressed in dark clothes (see Smith, supra), on a rainy, dark night with traffic approaching from the rear. It is even conceivable that a reasonably prudent person would not have become a pedestrian on Olentangy River Road, after midnight, on such a night as February 10, 1965, dressed in dark clothing, the only justification for the errand being a cup of coffee.
The question of contributory negligence in the instant case is for the jury. Assume the negligence of the defendant, from the evidence contributory negligence and proximate cause are still issues and for the jury. At least it must *152
be said that they are most commonly for the jury. The court inZiebro, Admx., v. Cleveland (1952),
In passing, note that when a statutory enactment prescribes only a general rule of conduct, negligence per se has no application. Eisenhuth v. Moneyhon (1954),
"* * * where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case."
Section
Finally, attention is directed to four cases cited by the plaintiff, one of them being cited also by the defendant. Presumably, the one cited by both, Phillips v. Weeden (1934), 18 Ohio Law Abs. 229, serves the purposes of both parties. It helps the plaintiff because the court said there was no reason why the defendant-motorist in the exercise of ordinary care should not have seen the pedestrian. The result does not turn on this point, however, because the case went to the jury, which found for the plaintiff, not, therefore, contributorily negligent, and the Court of Appeals *153 said that it was not able to say that such verdict was against the manifest weight of the evidence.
The plaintiff cites Focht v. Justis (1947),
In conclusion, it is suggested that a careful review of the evidence adduced raises several questions that must be resolved by a jury, from the facts, and inferences properly drawn therefrom, as to whether plaintiff's decedent was a discernible object, in the directional line of travel of the defendant, who entered that line of travel sufficiently far enough ahead to enable the defendant to stop; as to whether defendant's assured clear distance ahead was suddenly cut down; as to whether it was practicable for the plaintiff and his decedent to face oncoming traffic, and if not did the decedent use "due care" while on the road; and, finally, as to whether the decedent was contributorily negligent — specifically as to possible violation of the statute involved — and broadly as to whether the decedent behaved as a reasonably prudent person considering all the circumstances with which she was confronted on that particular evening.
These questions were properly submitted to the jury *154 by the trial court under appropriate instructions. The trial court was correct in submitting two forms of verdict to the jury. There is no error prejudicial to the plaintiff apparent in the record.
The judgment of the trial court is affirmed.
Judgment affirmed.
STRAUSBAUGH and HOLMES, JJ., concur.