Spitler v. Morrow

Fess, J. Tbis is an appeal on questions of law from a judgment entered upon a verdict of a jury for plaintiff by tbe Municipal Court of Toledo, OMo. *182 On January 21,1953, about 9 p. m., plaintiff was driving his automobile in a northerly direction on Garrison Road at a speed of approximately 20 miles per hour. The defendant was operating his automobile in a westerly direction on Portsmouth Avenue. Each street is 20 feet wide and paved with asphalt. It was dark, but the weather was clear and the pavements were dry. There was substantially no obstruction to the view of either driver approaching the intersection within 30 feet of the southeast corner thereof. As plaintiff approached the intersection, he looked both to his right and left and observed no traffic on Portsmouth Avenue. A residence is located on the southeast corner of the intersection about 30 feet south of Portsmouth Avenue and 34 feet east of Garrison Road. As plaintiff arrived at a point “about even” with such residence, he first observed the lights of defendant’s automobile about 90 yards to his right, traveling at a speed which appeared to plaintiff to be reasonable and proper. Plaintiff, therefore, decided that he could safely proceed across the intersection. As he proceeded into the intersection, he again looked to his left and then to his right and noticed that defendant’s car was bearing down upon him. In his brief, plaintiff concedes that he misjudged the speed of defendant’s car and that, when he noticed defendant’s car bearing down on him, neither he nor defendant could have avoided the collision. Plaintiff testified as follows: “I was about even with the brown shingle home, I looked to the right and observed a car about as far down as Grantley Avenue. I looked to the left and proceeded on through the intersection. As I glanced again to the right I noticed this car bearing down on me very fast as I was almost through the intersection he caught me on my right rear fender, about, I’d say, about a foot from the end of the car at the time of the impact. When I realized he was apt to hit me I swerved to the left to try to avoid the accident and stepped on the gas a little bit. As we ended up, as I ended up in the car, I found myself upside down and the car as I observed it, after I got out of the car, that it was facing south on Garrison Avenue. I’d say — the car end up — about a car and a half distance from the intersection at Portsmouth [Avenue] to the north part of Garrison north of *183 Portsmouth [Avenue]. As I first saw the ear I figured from that distance that he was going along at the reasonable length of speed for that district, that neighborhood, I proceeded on through the intersection.” Defendant and his passenger testified that they first observed plaintiff’s car from a point 30 feet east of the intersection. Defendant admits that he was driving in a 25-mile-per-hour zone at about 30 to 35 miles per hour. On observing plaintiff’s car, defendant immediately applied his brakes and was traveling not more than 10 miles per hour at the point of impact with the right rear fender and bumper of plaintiff’s car. Plaintiff had almost cleared the intersection at the time of the collision, which occurred in the northeast quadrant thereof. Skidmarks from defendant’s car were 30 to 35 feet in length, but the evidence is in dispute as to their location on the pavement. Defendant and his passenger testified that the car was practically stopped at the point of impact and moved but a foot thereafter. Plaintiff testified that he saw defendant’s car two minutes after the accident, parked next to the north curb west of the intersection. Defendant and his passenger said the car was moved across the intersection immediately after the accident. Upon the record, it is apparent that the defendant prima facie lost his preferential right of way by driving in the night season in excess of 25 miles per hour, and the relative obligations of the drivers of the converging vehicles are to be governed by the rules of the common law. Morris v. Bloomgren, 127 Ohio St., 147, 187 N. E., 2, 89 A. L. R., 831. Under such circumstances, the defendant was bound to exercise ordinary care to avoid injury to the plaintiff, and the plaintiff was bound to exercise ordinary care for his own safety. Even though the operator of a vehicle approaching from the right loses his preferential right of way, the other driver may be precluded from recovery by his own contributory negligence. In Meek v. Schwanbeck, 99 Ohio App., 83, this court held that: “An unfavored driver about to enter an intersection, who observes another vehicle approaching from his right and who guesses from a casual glance at the approaching vehicle that he can cross in safety, does not exercise that degree of care which *184 an ordinarily prudent unfavored driver should exercise under the circumstances in proceeding into and across the intersection.” This court recently held in Laws v. Vance (Court of Appeals, Sixth Appellate District, post, 255), that even the preferred driver' lawfully approaching an intersection, in the exercise of ordinary care must look for a vehicle approaching from his left at such time and place as to make his looking effective to avoid injury to himself. Decisions in other districts hold that although the driver from the right has lost his preference by proceeding at an excessive speed, neverthless, the failure of the unpreferred driver to accurately determine that he may enter the intersection safely constitutes- contributory negligence as a matter of law. Coshun v. Mauseau (Court of Appeals, First Appellate District, 1939), 62 Ohio App., 249, 23 N. E. (2d), 656; Kellar v. Miller (Court of Appeals, Second Appellate District, 1941), 67 Ohio App., 361, 36 N. E. (2d), 890; Willard v. Fast (Court of Appeals, Fifth Appellate District, 1944), 75 Ohio App., 225, 61 N. E. (2d), 807; Schaefer v. Cincinnati Street Ry. Co. (Court of Appeals, First Appellate District, 1945), 75 Ohio App., 288, 62 N. E. (2d), 102. We are not inclined to hold that a driver approaching an intersection from his left is bound to stop and await the passage of a vehicle which he may observe, for example, a quarter of a mile down the highway to his right; but the unpreferred driver is bound to look, and if he observes a converging vehicle within a reasonable distance from the intersection, he may not guess or even estimate its speed without entering the intersection at his own peril. Ordinarily, no inference of negligence arises from proof of an accident alone; but a collision at an intersection indicates that the converging vehicles were in reasonable proximity to each other and that either or both of the drivers did not exercise that degree of care which an ordinarily prudent driver would or should have exercised. In Meek v. Schwanbeck, supra, final judgment was not entered, the conclusion was reached that the verdict was manifestly against the weight of the evidence, and the cause was remanded for a new trial. Upon a review of the facts in that case as revealed in the opinion, a majority of this court are now *185 of the opinion that the plaintiff was guilty of negligence proximately contributing to his injury and damage as a matter of law and that final judgment should have been entered for the defendant. Our conclusion in the Meeh case was evidently based on the principle that, notwithstanding the plaintiff was guilty of contributory negligence as a matter of law, the question of proximate cause was for the jury. Cf. Smith v. Zone Cabs, 135 Ohio St., 415, 21 N. E. (2d), 336; Glasco v. Mendelman, 143 Ohio St., 649, 56 N. E. (2d), 210; Betras, Admr., v. G. M. McKelvey Co., 148 Ohio St., 523, 76 N. E. (2d), 280. Courts in other districts have entered final judgment. Williams v. Judd (Court of Appeals, First Appellate District, 1936), 23 Ohio Law Abs., 450, 34 N. E. (2d), 799. In Coshun v. Mauseau, supra, the Court of Appeals (First Appellate District) found a judgment for defendant (the unpreferred driver) manifestly against the weight of the evidence and held that the unpreferred driver must proceed into the intersection at a speed sufficiently slow to permit him to stop the vehicle which he is operating promptly, and thus not cross the path of the vehicle having the right of way. In Schaefer v. Cincinnati St. Ry. Co., supra, the Court of Appeals (First Appellate District) affirmed a directed verdict for the defendant against the plaintiff (the unpreferred driver) and overruled its previous decision in Nunn v. Davidson (1937), 55 Ohio App., 297, 9 N. E. (2d), 732, to the extent that the servient driver is under no duty to look before entering the path of the dominant vehicle. In Kellar v. Miller, supra, final judgment was entered against the unpreferred driver, notwithstanding evidence that the preferred driver was proceeding in an unlawful manner. In Willard v. Fast, supra, the court reached a like conclusion and entered final judgment. In Coshun v. Mauseau, supra, the court, at page 251, observed: “It is the duty of one who is required to regulate his progress in a certain direction to, so far as is reasonably possible, ascertain the presence of what he is required to observe from a position where this can be done effectively. There is no difference in principle in railroad crossing cases and street intersec *186 tion cases as far as this rule is concerned. Detroit, T. & I. Rd. Co. v. Rohrs, 114 Ohio St., 493, 151 N. E., 714; Pennsylvania Rd. Co. v. Rusynik, 117 Ohio St., 530, 159 N. E., 826, 56 A. L. R., 538; Youngstown & S. Ry. Co. v. Prigosin, 53 Ohio App., 189, 4 N. E. (2d), 599; Williams v. Judd, 23 Ohio Law Abs., 450.” In onr opinion, a distinction may be drawn between the relative duties of converging drivers at an intersection and railroad crossing cases, since the speed of a moving train can not as readily be controlled as that of a motor vehicle. Nevertheless, the principle in the railroad cases that a party must look at such time and place as is effective relates to the exercise'of ordinary care and should likewise apply to the drivers of converging vehicles approaching an intersection. With the exception of Smith v. Zone Cabs, supra, Glasco v. Mendelman, supra, and Betras v. McKelvey Co., supra, the Supreme Court has consistently approved directed verdicts and judgments for defendants on the theory that negligence and proximate cause under undisputed facts present only questions of law. Lake Shore & Michigan Southern Ry. Co. v. Lüdthe, An Infant, 69 Ohio St., 384, 69 N. E., 653; Davis, Dir., v. Atlas Assurance Co., Ltd., 112 Ohio St., 543, 147 N. E., 913; Buell, Admx., v. New York Central Rd. Co., 114 Ohio St., 40, 150 N. E., 422; Detroit, Toledo & Ironton Rd. Co. v. Rohrs, 114 Ohio St., 493, 151 N. E., 714; Pennsylvania Rd. Co. v. Rusynik, 117 Ohio St., 530, 159 N. E., 826, 56 A. L. R., 538; E. Kahn’s Sons Co. v. Ellswick, 122 Ohio St., 576, 172 N. E., 668; Columbus, Delaware & Marion Electric Co. v. O’Day, Admx., 123 Ohio St., 638, 176 N. E., 569; Pennsylvania Rd. Co. v. Moses, 125 Ohio St., 621, 184 N. E., 8; New York Central Rd. Co. v. Stevens, Admr., 126 Ohio St., 395, 185 N. E., 542, 87 A. L. R., 884; Gumley, Admr., v. Cowman, 129 Ohio St., 36, 193 N. E., 627; Pennsylvania Rd. Co. v. Townsend, 130 Ohio St., 554, 200 N. E., 772, 104 A. L. R., 309; Patton, Admx., v. Pennsylvania Rd. Co., 136 Ohio St., 159, 24 N. E. (2d), 597. In Lawrence v. Toledo Terminal Rd. Co. (1950), 154 Ohio St., 335, 96 N. E. (2d), 7, the court refused to apply the doctrine of the Zone Cabs case and emphasized that the issue of proximate cause is one for the jury provided that the state of the record is such that reasonable minds may differ on the conclu *187 sions to be drawn from the evidence on that issue. In Ziebro, Admx., v. City of Cleveland (1952), 157 Ohio St., 489, 106 N. E. (2d), 161, the court again refused to apply the Zone Cabs case in a wrongful death action involving a pedestrian. In that case, the evidence was undisputed that immediately before the streetcar reached the place of injury the decedent (who would be clothed with the presumption of freedom from negligence) was on the track. The court said that decedent’s presence there, under the facts disclosed by the record, was clearly a proximate cause of his injury. In the instant case, plaintiff’s presence in the intersection, as a result of his failure to reasonably ascertain that he could enter safely, was likewise clearly a proximate cause of his injury. This is the third appeal within the last month involving a verdict or judgment in favor of the unpreferred driver, and it is apprehended that the trial courts in this district may be construing Meek v. Schwanbeck, supra, as holding that the issue of proximate cause in intersection cases is always one for the jury. Therefore, to the extent that Meek v. Schwanbeck may be so construed, it is overruled. The judgment of the Municipal Court is reversed, and final judgment is entered for the defendant; and the cause is remanded thereto for costs, including costs of the bill of exceptions. Judgment reversed and final judgment for defendant. Deeds, J., concurs.