190 N.E. 924 | Ohio | 1934
For the purpose of this opinion the facts, as set forth in the pleadings, and as stated to the jury, must be taken as true.
The theory of the plaintiff's case is as follows:
(a) Tesnow was an employee of the defendant company, and at the time of the accident was engaged in his master's business and acting within the scope of his employment.
(b) In stepping from the left side of his parked car, and, without looking for traffic, starting across the street into the path of an approaching machine close upon him, he failed to exercise the care required by his duty toward other persons upon the street, including the plaintiff's decedent.
(c) That such failure in the exercise of due care was the proximate cause of the injury to the plaintiff's decedent.
Each part of above contention is controverted by the defendant.
The first point gives us no trouble. Tesnow was employed by the defendant to read meters. He had driven in his car from a building where he read a meter to the point where he parked the machine, and was on his way from that point to a building across the street, where he intended to read another meter. He was upon his master's business; he was within the scope of his employment. By every criterion the rule of respondeat superior
applies. It can make no difference that he was not then driving his master's car or *338
using any other instrumentality belonging to his employer.Pickens v. Diecker,
The second question, whether upon the facts shown there was a breach of duty toward the plaintiff's decedent, was, in our opinion, for the jury.
It is not claimed that Tesnow violated any statute or ordinance. His conduct, therefore, must be tested by the common-law rules of negligence as they exist in Ohio. Negligence is the failure to exercise that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances. Davison v. Flowers,
In delimiting the scope of duty to exercise care, regard must be had for the probability that injury may result from the act complained of. No one is bound to take care to prevent consequences, which, in the light of human experience, are beyond the range of probability. Only when the injured person comes within the circle of those to whom injury may reasonably be anticipated does the defendant owe him a duty of care.Drew v. Gross,
It is not necessary, however, that injury to the plaintiff, himself, be foreseeable. It is enough that the act in question may, in human probability, produce harm *339
to persons similarly situated. Nor is it necessary that the defendant, himself, actually anticipate or foresee the probability of injury to anyone. It is enough that the probability of injury to those in the plaintiff's general situation should have been perceived by a reasonably prudent and careful person. Lane v. Atlantic Works,
Tested by these principles, it is, in our opinion, impossible to say as a matter of law that Tesnow was free from negligence. Common experience attests the danger of stepping from the left side of a parked car directly into a heavily traveled street. Common experience likewise gives daily warning of the danger of crossing such a street in traffic without looking for the approach of vehicles. It is for the jury to say whether any reasonably careful and prudent person might be expected to know that his sudden and unexpected appearance in such a street in front of an oncoming car would probably cause its driver to take emergency action to avoid striking him, emergency action which might consist in swerving into another lane of traffic with a consequent collision.
In our opinion it was for the jury to say whether, under the facts stated, the plaintiff's decedent fell within the range of Tesnow's duty of care, and whether that duty was fulfilled.Adams v. Young,
Third. If Tesnow was guilty of negligence, was such negligence the proximate cause of the injury complained of? The law, in determining liability for harm done, refuses to follow the logical chain of causation beyond what it regards as the direct or proximate cause. Baltimore Ohio Rd. Co. v.Wheeling, Parkersburg Cincinnati Transportation Co.,
Was the collision between the Ferencz car and that of the plaintiff's decedent a consequence legally traceable to the alleged, heedless act of Tesnow in stepping in front of the Ferencz car? Much of what was said upon the second point,supra, becomes applicable here. The jury should have been allowed to pass upon the question whether the probability that such collision would result from such an act should have occurred, to the mind of a reasonably prudent and careful person.
There remains, however, one further point. Was the chain of causation broken by the independent act of Ferencz in deflecting the course of his car? Cases may be found to the effect that the volitional act of a human being midway in the logical chain of cause and effect breaks the legal nexus and prevents recovery. Pittsburgh Reduction Co. v. Horton,
In our opinion, for the foregoing reasons, the petition and the opening statement of counsel made a case to go to the jury. The judgment of the Court of Appeals, therefore, will be reversed and the cause remanded *342 to the Court of Common Pleas for further procedure in accordance with this opinion.
Judgment reversed.
WEYGANDT, C.J., STEPHENSON, JONES, MATTHIAS, and ZIMMERMAN, JJ., concur.
