*1 Appellant.* McCoy, Appellee, Gilbert, v. Appellee.* Gilbert, Appellant, al., et Silver overruled, certify record *Motion December 1959. *2 1959.)
(Nos. Decided July 16, 265 and 266 Pat- and Mr. James B. Nichols Grubbs Jackman, Messrs. do appellees. terson, for Basom, Minor and Richmond Richmond Messrs.
Messrs. & appellant. Wedemeyer, for & together and are
Per two were tried Curiam. These cases questions appealed together case, being In the on of law. first plain- appellant defendant, was Gilbert, herein, and Frieda S. tiff, Roy McCoy, appellee judgment against herein, recovered a personal injuries. damages $10,308.39 the sum for appellant plaintiff, herein, ease, Gilbert, In the second was damages personal injuries seeking to recover for from Allen C. defendant, appellee cross-petitioned Silver, herein, who for damages judgment farm to a tractor. The verdict and were petition Silver, cross-petition, and defendant on both the and the damages $700. the trailer were at assessed January
The evidence indicates that on about one p. o’clock, proceeding m., three motor vehicles were sbutheast- wardly 29, approximately state No. half a route mile north- highway west intersection of that with Ohio-U. S. route 40; point blacktop two-lane, No. that route 29 at such No. was a highway, line; with a white broken center that the road was level; straight dry; and that the was surface and that the weath- er was fair cold. and procession, leading
The vehicle a 28 Case farm trac appellee, belonging being by Silver, tor Allen C. was driven
455 speed ap McCoy, employee of Roy Silver, at appellee, per farm tractor Next hour. behind proximately miles 12 body measuring some trailer, the closed van tractor awas width, 11 3 inches feet, feet 8 between where T/^ length This height, feet. sec of 38 a combined overall and with speed, traveling its driver, of at a estimated vehicle was ond per says approximately hour, which he later reduced miles he per Fair- hour. The third vehicle Gilbert’s to 40 miles power power steering, good good horn, Ford, brakes, with lane says, operated speed, being by Gilbert at etc., tires, per speed approximately at miles she was over hour, taking the tractor-trailer. right-hand traveling in two vehicles were lane. first proceeded pass left of the tractor-trailer at a per
speed variously estimated to between 45 be and miles per that she hour. She testified accelerated to 50 miles hour to pass the tractor-trailer. says being that,
She the tractor-trailer, behind she did not the farm until see tractor she arrived the front of the cab of space There tractor-trailer. was at time sufficient be- tractor tween vehicle the farm for Gilbert to have re- *3 right-hand oncoming turned the lane. But there was no traf- and endeavoring fic she continued in pass lane, the left-hand says approached the farm tractor also. She as the “edged farm tractor it out little to the a center of the road. I up slowed and blew the horn he right-hand and went back the side of the road.” point private
At leading near a lane left to the residence highway, of on the northeast McCoy Silver, side of the turned the tractor left to his across the center highway line of the and says the into left-hand lane. He he had not seen Gilbert’s Ford. ensuing An collision between the farm tractor and gave the Ford rise the several causes of action here involved.
The evidence is in conflict as to whether Gilbert sounded McCoy her horn, in whether turned his seat to look back before turning, gave signal, whether he a hand if and, so, whether it proper place. was at the time and There is considerable evi- dence as to distances between vehicles and other circumstances pertinent will as it be considered becomes analysis in our of case. petition, upon McCoy his jury for a verdict returned
The damages of sum “at against his Gilbert, assessed and and in the plus bills.” ($10,308.39) medical $308.39 thousand ten against Gilbert and for Silver a verdict it returned case, second against Gilbert petition; and upon for Silver and verdict her trac- damages cross-petition farm Silver’s Silver’s jurors in these concurred same ten in sum of The tor $700. any jurors remaining not concur did two verdicts; several of them. ap- special interrogatories. first two There were three space paper, suf- pear single the first after sheet of with on a interroga- signatures. only These without ficient for an answer 1; you “Interrogatory that Frieda S. Do find No. tories read: your negligent?” “Interrogatory an- 2: If No. Gilbert was negligence interrogatory her Yes, swer to No. 1 is what did Interrogatory answer, is written after “Yes,” consist?” The space following interrogatory No. all twelve 1. In the No. (One “driving jurors signed, stating fast.” that she was too jurors concurring general in the verdicts ex- of the two pressed driving,” added, “failure to “fast blow general verdicts, one horn.” the ten who Of concurred added “failure to blow and two others added “not horn,” keeping car under control.” Roy you McCoy
Interrogatory No. “Do 3 reads: find that respect negligent any that was his in- was juries?” Only a direct cause of concurring general ten three ver- signed interrogatory, dicts this “I all three said: don’t general know.” who The two did not concur in the verdicts ‘‘ signed interrogatory opposite this wrote their names fail- signal.” ure to appellant
At the time the were received, verdicts first made, require jury and then a motion to to answer in- withdrew, terrogatory No. 3. interrogatories signify
These and these answers to verdicts jury guilty “driving that the guilty found Gilbert too fast” charges negligence alleged against the other *4 (Masters v. Co., St., 293, New York Central Rd. 147 Ohio 70 N. City 898; App., [2d], E. Cleveland, Mills v. 97 Ohio 78, 117 Miljak Boyle, App., E. 471; N. and see v. 93 [2d], Ohio 340) McCoy appellee guilty to [2d], that it failed find E.N. any negligence. eight assignments of error. makes Gilbert assignment it No. 1 she contends was error for the court In jury instruct on the assured-clear-distance rule under to argument 4511.21, Her is that that Revised rule Code. inapplicable because the tractor did come “into farm her point line of travel the assured clear ahead at a within distance possible, sufficiently distant ahead her to have made stop ordinary bring care, exercise of to a vehicle Admr., avoid a collision.” She of McFadden, cites case Transportation Elmer Breuer 430, 103 C. N. Co., St., E. (2d), 385.
Gilbert first testified saw farm tractor a dis- right-hand tance of 300 feet ahead in the lane while she was in the left-hand lane, and testified further: * ** on-coming “A. no Still traffic. I could see almost to (Ohio-U. 40) stayed Broad Street I S. route so in the left-hand pass got lane to ways tractor, too. When I about half oh, tractor, 150 feet to rear edged of the tractor, he out a up little the center of the road. I slowed and blew the horn right-hand and he stayed went back to the side of the so I road, go pass in I left-hand lane traffic ahead him. When got, say approximately I would him oh, 50 feet behind he angled way highway. this across the way, you By “Q. this what do mean? A. To the left, * * *” my line, across the center over into lane of traffic. The driver of the tractor-trailer testified that the farm yards tractor was 75 ahead of him when he observed Gil- going bert’s Ford his around vehicle. Neither he nor McCoy give oncoming look backward saw traffic and neither saw signal McCoy him his says intention to turn. he did but that prior both, he did not see Gilbert’s Ford to the collision. say In this situation we cannot appellant whether or the rule as to assured clear violated came distance, whether she exception within rule which she invokes. just heavy The McFadden case cited involved a roll of steel permitted negligently defendant had to fall from its truck highway at an undetermined so that time, no one into could *5 ahead say clear distance the assured it fell within whether plaintiff’s decedent. by appellant, Fuller, cited Walcott
In the other case the that App., this court decided N. E. plaintiff apply ahead of rule did not to direction, assured-clear-distance driving saw in the same neither defendant, whom a plaintiff suddenly changed signalled, nor nor looked back directly driving, turning to the left he the direction which was plaintiff’s proximity path automobile, of and in close plaintiff opportunity affording collision. no avoid a presents here a similar situa- version of the facts Gilbert’s McCoy’s account, is taken into However, tion. version when question applicability the the the rule becomes more diffi- cult. by any interrogatories, to the
But event the answers any omitting reference to of the assured-clear-distance violation from served to exonerate Gilbert violation of that rule. rule, Hence no prejudice giving charge, resulted from the of the give whether or not was erroneous to it.
Assignment objection 2No. is an refusal the court signal on to be the manner in which a hand arm should
given provisions 4511.40, under the of Section Revised Code. McCoy the issue in this connection was not However, whether right signal, signal gave gave any kind of a but whether he proper. at all. Hence the refusal so to was Assignment portion general No. 3 is directed to the of the charge pertaining to Section 4511.39, Revised Code, entitled signals.” pertinent portions quoting “Turn After section, the court continued: applied gentlemen, ladies and
“Now, as to this case, wheth- signal given by plaintiff er or not McCoy, to turn left was as he testified, for defendant to have the benefit of the statute position she highway would have had to be in a on the that she plaintiff could or should have seen it before in fact started to make his turn.
“The if it is a fact, fact that defendant Gilbert’s view of operated plaintiff McCoy, the farm tractor, was hidden until freight passing she was trailer, tractor a distance of 300 reimpose feet she obligation plain- testified would not again made with McCoy if turn could be ascertain tiff safety signal. giving he again Unless a hand reasonable vehicle was another and different or should have known knew freight approaching, which he tractor trailer rather than the had as he testified.” observed “placed upon complained
It is first that this instruction appellant, showing that Gilbert, the burden of position ought seen, seen, such that have have she could McCoy, any signal by appellee, thus removed burden appellee, McCoy, prove care, ‘exercised due he had from ” etc.’ seriously McCoy We do not believe contends *6 proving negligence, has the burden of himself from as free everyone neg- presumption that entitled to the he is free from ligence. having alleged McCoy guilty Gilbert, that was negligence proximately collision, caused the assumes the proving negligent only not that but burden of he was also that negligence proximately his caused collision. the As herself spot during was, testified, she one in interval, a blind with ref- giving tractor; giving signal to the farm erence the or not of a McCoy by wholly charge at that time was immaterial. The points properly this out. implies
A second criticism of this is that it that McCoy already given signal in fact had one while the tractor was invisible to Gilbert. do We not believe that such is. im- the port language dealing supposi- of the used. The court was in a effect; analyzing legal and sufficiently tion its but he it made opinion, merely clear, in our supposition, that it pos- was a situation, necessarily by sible established the facts. language But even if implied the had that McCoy gave signal when was invisible to Gilbert, such fact, we as have seen, immaterial.
Assignment of error No. 4 contends that the court should charged jury have might McCoy find that had suf- permanent injuries. fered apparently The record does expres- not contain the usual opinion subject. sions of medical on this While such evidence is helpful, always required. often it is not In amputation, case of obvious, example, be permanency would 460 jury. question case The course the is one for
Of App., Light Railway, Pickles, Power & Co. Columbus appellees, by and has fre- N. so cited declares E., 183, 614, ques- principal quently been to that However, cited effect. damages tion awarded there under discussion was whether were excessive. opinion Motor Dis- of this court Brush v. Eastern
patch, Abs., N. E. is more Law Inc., Ohio nearly point. headnote therein reads: The second presented possible
“Where no has evidence been pain occurring suffering duration of result of an in- and as a jury, they jury an instruction to the could consider future pain prej- suffering assessing damages, and is erroneous to the defendant.” udicial opinion jury indicated,
As the there needed some ex- pert opinion subject, they on the because otherwise would have required speculate long plain- been tiff’s as to how in the future the
suffering would continue. McCoy alleged injuries: following serious “A fracture twisting turning of the left region left fibula, foot, a of the lumbar causing back, of his strain to the muscles, severe tendons ligaments region up pre- of the lumbar which also fired existing arthritic condition. . . cuts about and bruises his face support and head.” There was substantial evidence to these allegations continuing pain disability up and to 'show time of examination medical witnesses. injuries persistent ap-
Serious as these and their effects pear, they no one can determine from the evidence that are *7 permanent. opin- In circumstances, these the absence of medical point jury’s permanent ion on the renders the consideration of pain conjectural suffering and the instruction erroneous.
Assignment having ju- No. 5 is directed to the court taken required dicial in notice his of the times and distances to stop traveling speeds, an automobile at certain in the absence of subject. evidence on the by made court,
Certain calculations were such as inter- per per preting miles hour in terms of feet second. While this unnecessary, it was not erroneous. upon the of judicial theory he notice, But when, makes de- upon average braking time, distances, reaction based ductions challenge objected made. etc., The statements he risks the now portion charge: following are contained repeat again quoted, I do the statutes viz. “Likewise explana- 4511.29 and 4511.21, 4511.39 and 4511.27, Sections tion prima way right them, facie or definitions fact and application incorporate again I all but that statutes, by reference. jury necessary applying it for the these
“However, explanation particularly to have some additional statutes applies as plaintiff applicable Gilbert’s evidence the law thereto. knowledge
“There is one matter of common and of which judicial necessarily It take notice. ‘that is, courts elapses an interval impulse apply before brakes automobile can be commonly regarded made effective.’ reaction time is of a second. % ju- “It fact is a matter scientific of which courts take travelling per notice that vehicle dicial miles hour will a travel per jury may second which the feet take into account with 141/2 respect to the distance time travelled the farm tractor. m.p.h. that an at “Likewise automobile travel will a dis- of 55 feet in the of a tance second time before the brakes can % made effective. be per that an
“Likewise at automobile 50 miles hour will per travel a distance of 73.3 feet second. per
“Likewise an at automobile 55 miles hour will per a travel distance of 81 feet second.
“Likewise that at per automobile 60 miles hour will per travel distance feet of 88 second. requires
“Likewise it with brakes condition, excellent stop distance of 166 at 50 miles feet an hour, a distance of 190 stop stop feet at 55 miles an hour, a distance of 226 feet to ’ ’ miles an hour. justification appellee’s In of this brief cites B9 Cyclopedia (Perm. Blashfield’s of Automobile Law and Practice Ed.), 408, which contains a recital of facts of judicial which various courts have taken notice. While it indi- jurisdictions cates some have taken such notice of some *8 462 appear such charged it not here, those does to
facts similar generally charge ac- precision in this has been isas contained any cepted, so. case has done which nor does cite Ohio appears stopping distances reaction time and chart of A page work. the same The of C, 413, 6237, 9 Section volume very question adheres here in data the contained figures closely chart. the on this introducing the chart, contains Blashfield, the
The text language: following accompanying this affords much chart section
“The useful required stop subject an the the distances on of information automobile speed. traveling of while at various rates stopping of distances furnish useful standards “Charts for comparison, though special each must circumstances case of be considered. also
i i -'fc # * upon negligence driving is at a “Where a of based dangerous speed, rate of is admissible to excessive evidence show distances within a car the class to which of which question stopped specified belongs one in speed. can be at rates competent speed evidence
Such is to show exact car, of the but to show whether a car same char- going speed, stopped rate acter, authorized could be space apparently required stop less within in than the car question.
i C * # # actually stopped “The distance within which vehicle was after is an accident some evidence of the distance within stopped.” (Emphasis ours.) it could have propriety The text continues with a discussion opinion subject evidence witnesses with sufficient ex- perience. appear pur-
Thus, it would Blashfield’s chart does not port supply subject information so irrefutable as to be judicial certainly qualify notice. It does not under the re- quirements judicial parties notice which the here are agreed. Jurisprudence 38, Evidence, Sec- tion 16. Corpus are referred to 31 also
We Juris Secundum, carefully language there used 81. limited: # common judicial taken of matters has been notice of * * * * * stopping starting cars pertaining knowledge *9 ours.) (Emphasis Pennsylvania Lynch, only Admx., v. cited is case The Ohio subject App., E., is 295, 31. The N. 194 Co.,
Rd. 48 Ohio points opinion Judge syllabus. Ross In the in the mentioned very only fact that: page 297, the obvious out, pres- knowledge that the today of common a matter “It is placed upon usually them makes oil, streets, as is such of ence extremely slippery. bring very to vehicles to a It difficult is * * *” easily. very They stop. skid and slide will authority appellees only been able to which have The Ohio * * * “ We find as follows: is referred in their marshal briefs per computation making feet second Judge the reference Taft Weilnau, St., 154.” 169 Ohio Admx., v. in Parton Judge accurate, that is all that and statement Counsel’s subject. the said on Taft judicial regard notice, must be taken that “Care With requisite every notoriety and reasonable doubt exists subject promptly negative.” 21 resolved should be Evidence, (2d), Jurisprudence 38, 18. Section Ohio subject judicial properly to be notice it a matter “For authoritatively ‘known,’ is, well established and be must judicial a court will take of which notice are Matters settled. depend upon necessarily do not fixed and un- uniform or disputable, testimony, as a matter becomes as soon it for certain knowledge of common and under the head so will to fall ceases judicially recognized.” Jurisprudence (2d), 21 Ohio not be Evidence, 20. into the must enter consideration of such variables
Certain example, as, stopping distances, time of reaction charts App., v. vehicle. See 105 Ohio Ward, State weis'ht N. 465. E. space judicial take notice of “cannot within a court And speed traveling stopped, certain can be which automobile contrary.” Spreng Flaherty, shows evidence where App., E., N. 528. 21, 177 pertains question only
The instruction here in of which distance, the assured clear claim violation of jury, close relation- it also bears was exonerated but speed ship proceeding at a which was to the averment that she proper, greater of which was than was reasonable guilty. she was found to be re- individual
There was no whatever of Gilbert’s evidence specific and distance action the time time no evidence of stopped the 1955 Fair- within which she should could have except driving, lane for the distance within Ford complained actually stopped. of, there- which she injects fore, Thus was into the not in evidence. case facts prejudicially erroneous.
Assignment overruling of Gilbert’s No. 6 is directed to the appellee’s motions for case and directed at the close of verdicts at the close of was sufficient all of the evidence. The evidence points present questions at both for the determination of fact jury, properly and the motions were overruled. Assignment question sufficiency No. raises the *10 support the evidence of the verdicts. review the record Our assignment except convinces us that this is not well as to made, hospital proved, expense regarding the amount of medical analysis which we have made a detailed in our discussion of assignment No. 8. present
It assignment, contended, is also under the that the special interrogatories answers to the were inconsistent with general verdicts. These have been set forth above and dowe not them inconsistent. find
Assignment of covering error No. 8 is the usual catch-all apparent record,” “other errors on the face of but here it specific questions. is unusual in that it raises several We shall previously consider those not covered. erroneously
Gilbert contends that the court admitted evi hospital by appellee, of McCoy, dence and medical bills incurred testimony showing necessary without that the same were perplexing reasonable. Counsel cites the case of DeTunno v. Shull, St., 365, 143 appellees point N. E. 301. But objection that out whereas was made to the admission of the objection in evidence that case, no such was made here. That considering this necessity of our eliminates the circumstance Appellate Jurisprudence (2d), appeal. question 3 Ohio 203. Review, Section support of the amount do not find evidence we
However, namely, jury, expense hospital and medical found hospital testimony a certain bill for that the There is $308.39. “probably period was $182.60, Kubiac’s bill was and that Dr. eighty dollars”; find no further or but we around a hundred judg- subject. the fact that the evidence on the Were it not for obliged grounds, we should feel ments must be reversed on other appropriate to make some order for failure of the evidence support judgment finding item. for this complained general charge,
It com- that in his court, portions upon mented examined the of evidence. We have charge complained They purport review, the mary, of. or sum- to be a opinion expression evidence, truth not an as to its complaint falsity. There that the review was inaccur- is no ate. complains negli- that she of the court’s was point
gent sounding as a matter of not her law horn unnecessary pass which would have been effective. It is that we upon exculpate question, special interrogatories this as the answers charge. prej-
her from this Therefore she was by any possible udiced error in this connection. question sounding
The instruction of her subject horn contained a quirement statement she was also to the re- ordinary care. This is not erroneous because of being applied point requirement at this to her alone. Such ordinary properly applied appellees por- care was other charge. subject tions of the use or failure to use her horn. immediate hand was her improper apply
It ordinary point the rule care in this connection alone at this charge. We do not find the instructions were or that slanted placed they improper prejudice emphasis to the of Gilbert. *11 objects appellee deposition
Gilbert bv to the use of the Barbara daughter Thrush at the trial. This witness was the deposition prior Appel- of Gilbert who taken her had to trial. upon deposition. lees did cross-examine 1958, deposition taking 25, it was At on November of the stipulated Mon- that it “is at the trial of cases to be used day, to at- December that she unable 1958, for the reason 1st, open tend in court.” party deposition not render fact that one took this does pro-
it unavailable other. Revised 2319.05, Code, Section viding imposes up- depositions, for the use no such limitation on their and the cases have held text writers have ob- use, served that their use is not thus limited. v. Watson, Andrews City App., 686; 50; 12 D.,C. Toledo, Currier Long, 607; 1 Hanna, Evidence, Ohio Trial Hurd and 513, Section (i). party Ohio Trial Evidence, 380, 19.3 Failure of a Section to cross-examine the other’s witness does affect the avail- ability deposition party. Jurisprudence to such 17 Ohio Depositions, Section 67. prejudicial charging
For error the court respect braking with to reaction time and distances, and with respect permanent injuries, judgments are reversed and proceedings according the causes remanded for further to law.
Judgments reversed. P. J., JJ., concur. Crawford Wiseman, Kerns,
(Decided 1959.) August Rehearing. On application rehearing
Per Curiam. Gilbert’s is ad- primarily overruling assignment dressed error. of her third assignment challenged
That of the court McCoy’s making duties in a left turn. opinion
It is claimed our is at variance with the stat- utes, particularly with 4511.39, Code, which, Revised pertinent part, reads as follows: ** * person “No turn shall a vehicle from direct course upon highway person until such has exercised due care to as- safety certain that the movement can be made with reasonable * * * highway, only to other users of the and then giving after *12 by any may signal affected traffic appropriate in the event be movement. such given in right signal shall be turn or left of intention to
“A give to indicated the movement time advance of sufficient highway af- ample warning would be of the who other users to ’’ by such movement. fected charge objected portion is as follows: of the to applied gentlemen, wheth- case, this to ladies and as “Now, McCoy, plaintiff given by signal to turn left was not the er or the statute defendant to have the benefit of he testified, position highway that she in a on the to be have had would plaintiff in fact have seen before started or should could his turn. make that if it is fact defendant Gilbert’s view
“The fact, operated plaintiff by McCoy, tractor, was hidden until the farm freight trailer, passing the tractor a distance of 300 she was reimpose obligation plain- would an as she testified feet again McCoy if turn ascertain could be made tiff with safety again giving signal. and a hand Unless he reasonable another should have known and different vehicle was knew or freight approaching, rather than the tractor trailer which he as he testified.” had observed interpretation,
According quoted paragraph to our the first necessity is a statement of the from a causal rela- tionship any McCoy by give signal, failure between and ensuing any such collision, before failure would have ulti- significance in this ease. mate We intended no overtones of statutory interpretation, proof rules as to burden of this connection. paragraph quoted charge appears from
The second imposed upon McCoy by the duties us to leave the statute, name- ly, of due care ascertain that the exercise the movement can ‘ ‘ safety highway, made reasonable to other with users of the be * * * appropriate only giving signal after then * * * any by may be affected traffic such event movement in suf- give in advance of the ample ficient time warning movement indicated to highway users of the to other who would be affected movement.” such
By paragraph of the last clause in the quoted virtue second charge, explained these from the the court duties above per- continuing they were of a nature had been even if Perhaps necessarily once, that was formed sufficient. principle expressed clearly positively, could more but it' be actually charge. contained in the holding signal it was not our that one or one act
Hence, necessarily exercising adequate, due care was rather that but McCoy’s in the circumstances of the case entire of con- course subject jury’s light duct was consideration in the statute. appear places any
And it does not to us that the greater overtaking passing burden Gilbert in *13 imposed by tractor-trailer than is 4511.27, Revised Code. again urges assignment claiming her sixth of error, that the court should have sustained motions for directed negligence McCoy. verdict because of the claimed Counsel paragraph syllabus cites the second Adrnx., of Ziebro, City Cleveland, St., 489, 157 Ohio 106 R. E. 161. After opinion further careful we consideration, continue of the conflicting present evidence in the case the issue of McCoy’s negligence justified the submission of that issue to jury. application rehearing is denied.
Application denied. P. J., JJ., concur. Craweord Wiseman, Kerns,