Carle v. Courtright

*210 OPINION. .By GEIGER, PJ. This case is before this Court upon appeal on questions of law from a judgment rendered upon a verdict for $3000.00 returned by a jury, signed by ten members thereof: It involves an automobile collision occurring about seven miles south of Columbus on Route 23, which is a continuation south from High Street in Columbus, where the same is intersected from the east but not crossed, by a road known as Canal Road. The plaintiff lives on Canal Road and was driving his automobile toward his home and had reached the point where the Canal Road intersects Route 23. At that moment there was a rather heavy congestion of motor vehicles at this point. A truck was proceeding' northward, followed by an automobile going in the same direction. The truck, however, turned eastward on Canal Road, the automobile passing it at about that time. There were two cars proceeding southward on Route 23. There was also a car coming out of Canal Road, waiting for an opportunity to turn north on 23. Evidence is introduced tending to show that when the plaintiff reached this point he drew over to the right side of Route 23 to such a position that the improved edge of the highway bisected his automobile. There he stopped waiting until'the cars above mentioned had passed. He then looked in bis mirror and saw nothing to .the north, also looked from his left hand window, stating that he could see for 700 feet. He put out his left hand and started his car across Route 23 to enter into the Canal Road. He did not see the car of the defendant approaching from the north, but it struck his car midway and pushed it to the southeast corner of the intersection and the plaintiff was injured to such an extent that the jury gave him a verdict of $3000.00. • The. appellant presents • six assignments of error, which we will examine in the order presented. It is claimed that there was error in the court prejudicial to the defendant when the Court overruled defendant’s motion for a new trial based on the ground that one of the jurors was guilty of misconduct on the voir dire examination. During that examination the jurors were examined as to damage claims made on account of injuries and all jurors remained silent. After the trial defendant discovered that one of the jurors had been involved in three accidents; the first being in 1916, which resulted in his arm being taken off as a result of a coal mine accident; one in 1932 when his shoulder was broken in a mine accident, and one subsequent 'to that, and it is stated that' in each of these cases such juror made claim against the Industrial Commission. It is urged and cases are cited in support of counsel’s position that the failure of this juror to disclose injuries from which he had suffered and the fact that he had made claim for compensation was prejudicial, and in that the defendant was entitled to further examine him and peremptorily excuse him if such examination disclosed that he had been injured and had presented claims. We do not find any prejudice in overruling the motion for a new trial on account of this so-called disqualification of the juror. The accidents from which he had suffered were in no way similar to the one in which he sat as a juror, two of them at least occurring •in coal mine accidents. The fact that he had been in an accident was patent to any observer, as he had lost an arm, and if counsel had thought the matter was of consequence he should have pursued it before the jury was sworn. In addition to this the bill of exceptions does not disclose the facts upon which the assignment is based. We overrule assignment No. 1. Assignment No. 2 is to the effect that the Court erred in its general charge to the jury on the provision of §6310-17, which is to the effect that vehicles shall keep to the right of the center or center line of the road except as otherwise provided. Counsel states *211 that the defendant admitted that he swerved his vehicle toward the left of the road immediately before the collision in an attempt to avoid it. Counsel quotes and criticizes the charge of the Court. We have examined the charge which contains the pertinent statement, “Now if the defendant operated his motor vehicle to the left of the center and that fact, if it be a fact that he operated it to the left of the center, proximately caused the accident, then, of course, that would be said to be negligence. Now, what the fact is, I say you are to determine.” Counsel state that while the violation of this statute is negligence per se, it does not require that the operator of a vehicle keep to the right side of the road under all circumstances, and the claim is made that the defendant’s testimony showed that he turned to the left of the middle line of the road in an emergency to avoid a collision caused by the negligence of the plaintiff, and it is claimed that the charge of the court imposed upon the defendant the duty to keep to- the right side of the highway under all circumstances and particularly the circumstances in' the case as indicated by the defendant’s testimony. Had the plaintiff’s car remained standing one-half upon the berm and one-half upon the paved highway, the defendant could have passed him without crossing the center line, but the defendant claims that inasmuch as plaintiff’s car had been started and was half way across the center line that it presented such an emergency as would permit the defendant crossing the center line in order to make a safe passage. We have studied the charge of the Court and find that it was correct, and we overrule assignment No. 2. Assignment No. 3 is to the effect that the court erred in giving to the jury before argument plaintiff’s special request No. 2 to the effect that a person making a left hand turn has the right to assume, in the absence of knowledge to the contrary, that any automobile to his rear is- obeying the law and is proceeding ■ at a lawful, reasonable and proper rate of speed. This special charge, in our judgment, is a sound explanation of the law. Assignment No. 3 will be overruled. Assignment No. 4 is to the effect that, the Court erred in refusing to submit to the jury defendant’s special interrogatory No. 3, the question being in effect, “Did the fact that plaintiff did not see the defendant’s automobile as it approached the scene of the accident until the actual impact of the two automobiles directly contribute in any degree to cause the accident?” It is claimed by counsel that the refusal to submit this interrogatory was prejudicial error for the reason assigned and discussed. We, however, are of the opinion that the court was justified in refusing to submit this interrogatory as its answer would not be determinative of any ultimate fact. Assignment No. 5 is to the effect that the Court erred in not charging upon the provisions of §6310-19 GC, to the effect that a vehicle overtaking another vehicle shall signal to the vehicle to be overtaken, and such vehicle shall immediately turn to the right and give the overtaking vehicle room to pass. It is claimed that under the testimony the provisions of this section were applicable and that the plaintiff was guilty of negligence per se if he violated it, and that the defendant was entitled to the benefit of its provisions. We are of the opinion that the statute referred to has nothing to do- with the circumstances under which the accident occurred, it being a provision confined to the rule to be followed where a faster moving automobile seeks to pass a slower going vehicle, both going in the same direction. Another reason why it is not prejudicial error is that there was no attempt upon the part of counsel to call the court’s attention to the omission- to so charge. Assignment No. 5 is overruled. *212 *211 Assignment No. 6 is to the effect that the court erred in awarding interest *212 on the verdict from the date of the verdict instead of from the date of the judgment. We have recently passed upon this matter and have held that the date when the interest begins to run is the date of the judgment and not of the verdict. To this extent the judgment should be modified. The jury was called upon to answer several interrogatories. In answer to interrogatory No. 1, they gave an affirmative answer to the question, “Did the plaintiff in the exercise of ordinary care make sure that he could make his left-hand turn in safety?” Interrogatory No. 2 is also answered in the affimative, it being, “Did the plaintiff cause a signal in a way visible outside of his vehicle to be made of his intention to make a left turn?” Plaintiff’s evidence was to the effect that the driver before making the turn looked back and obtained a clear view of the road for 700 feet, and that he saw no oncoming automobile and that he gave a signal of his intention to turn and had reached the middle of the road in the turn before he was struck by the oncoming car. It must have been going at a high rate of speed to have covered 700 feet while the plaintiff’s car was merely making a turn and crossing half way over a rather narrow highway. We have gone over the pertinent parts of the bill of exceptions in this case and while we might not agree with the verdict of the jury, yet we can readily detect that on the evidence as submitted the verdict of the jury was supported and we feel that we should not disturb it. As automobile drivers of some experience, our theory of the case may differ from that asserted by the plaintiff. It is within common experience that a driver who stops his car in order to permit the passage of traffic may start his car across the pathway of an automobile which he has failed to observe. There is a blind spot in rear vision mirrors which does not permit the driver to detect the close proximity of a car passing upon the left. This, however, is mere guess upon our part, and we are confined to the evidence as given. This case is eminently one for a jury, and we are not justified in disturbing it as we find no prejudicial 'error upon the part of the court. Judgment affirmed with the modification in reference to the date on which the interest would begin. BARNES & HORNBECK, JJ., concur.