The parties herein are called plaintiff and defendant as in the trial court. The automobile accident giving rise to this suit happened on the snowy wintry night of January 14, 1955, about 11 p. m., on 12th Street N.W. Canton, at the top of Serpentine Hill, near the Timken-Mercy Hospital entrance.
Defendant, 22 years old and single, was driving his father's *Page 380 car. He had been to a stock car meeting and had picked up his girl friend at a bowling alley and was taking her home near Myers Lake. Serpentine Hill is a section of 12th Street N.W. which runs east and west across the Canton Park System. It is steep, with two banked curves, first to the right and then to the left, straightening out at the top. Defendant, driving west, slowed down to cross the railroad track at the bottom, then "hit the gas" and maintained a speed of about 25 miles per hour up the hill and around the banked curves. Upon entering the straightaway at the top, the car, which defendant was driving, skidded or slipped over across the center line and wrongfully on to his left lane and collided with the car in which plaintiff was riding as a passenger. When the car in which plaintiff was riding was hit it was going east about 10 miles per hour, on its own right side of the road, very close to its right curb. Plaintiff was injured and filed suit. The jury returned a verdict for the defendant. Plaintiff appeals on questions of law, assigning seven errors as follows:
"1. The trial court erred in his general charge to the jury by repetitiously and unnecessarily charging the plaintiff with the burden of proof, so as to prejudice plaintiff-appellant's evidence and case.
"2. The trial court erred in charging the jury on the proposition of unavoidable accident when the same did not arise or exist under the evidence of the defendant appellee in the case.
"3. The trial court erred in his charge to the jury in charging that the plaintiff appellant had the burden to prove proximate cause, when there was no issue of proximate cause in the lawsuit under the statements of counsel and the evidence.
"4. The trial court erroneously charged on unavoidable accident when the same was not proper in this cause, but even so, charged improperly and erroneously on the law of unavoidable accident.
"5. The finding of the jury and the judgment in favor of the defendant-appellee is contrary to law and against the weight of the evidence, and is not supported by any evidence.
"6. Error upon the part of the trial court in failing to direct a verdict in favor of the plaintiff-appellant and to leave the question of the amount of damages only for the jury's determination. *Page 381
"7. Refusal on the part of the trial court to instruct the jury in his general charge that the burden of proving unavoidable accident was upon the defendant."
The first assignment of error is overruled. Plaintiff claims the trial court erred in its general charge to the jury by "repetitiously and unnecessarily charging plaintiff with the burden of proof." Such repetition did happen. We disapprove, but we cannot say that reversible error was thereby committed.
Assignments of error Nos. 2, 3, 4, 5, 6, and 7 concern the defense of unavoidable accident and are discussed together. This defense has had varied treatment by the Supreme Court. No clear guidepost rule has been established, and each pronouncement is applicable to the facts of each particular case.
In 1941, in the case of Kohn, Admx., v. B. F. Goodrich Co.,139 Ohio St. 141 at page 148, Williams, J., said:
"Unavoidable accident is not an affirmative defense but merely negatives negligence; consequently proof of such defensive matter may be given under a general denial. * * *"
The Supreme Court in 1943, in Satterthwaite v. Morgan,141 Ohio St. 447, held in the second paragraph of the syllabus:
"2. An operator of a motor vehicle who has failed to comply with a safety statute regulating the operation of motor vehicles may excuse such failure and avoid the legal imputation of negligence arising therefrom by establishing that, without his fault and because of circumstances over which he had no control, compliance with the statute was rendered impossible."
The second paragraph of the syllabus of Bush, Admr., v.Harvey Transfer Co., 146 Ohio St. 657, is as follows:
"A legal excuse, precluding liability for injuries resulting from negligence per se in the failure to comply with a safety legislative enactment directing the manner of the operation of a motor vehicle on the public highways, must be something which makes it impossible to comply with the safety legislative enactment, something over which the driver has no control, an emergency not of the driver's making causing failure to obey the statute, or an excuse or exception specifically provided in the enactment itself."
We desire to call attention to the statement in the Bushcase at page 664 where it is stated that the rule of ordinary care, viz, "that `he did or attempted to do what any reasonablyprudent *Page 382 person would have done under the same or similar circumstances'" is no excuse. It must be something that would render itimpossible to comply with the statute.
Recently (1956), in Lehman v. Haynam, 164 Ohio St. 595, the Supreme Court indicated that the burden of proof as to such defense (unforeseeable unconsciousness) rests upon the driver who seeks to thus excuse his negligence per se in driving his car upon the left half of the roadway and into another vehicle, and further that such driver has the burden to prove by the preponderance of the evidence such a situation.
"In our opinion, if one was guilty of what would be negligence as to a conscious person and claims not to have been negligent because of an unforeseen unconsciousness, he should have the burden of proving his condition by the preponderance of the evidence." (Page 600.)
While it is still true that the defense of unavoidable accident generally is nothing more than a denial of negligence and may be proved under a general denial, yet, in view of these late pronouncements of the Supreme Court, it is our considered opinion that the defense of unavoidable accident, when offered to excuse negligence per se, casts the burden of proof upon the defendant to establish that, without his fault and because of circumstances over which he had no control and which were not foreseeable, compliance with the statute was rendered impossible, and this by a preponderance of the evidence.
We have carefully read the short record herein to ascertain whether the facts justified the trial court in submitting the issue of unavoidable accident to the jury, and whether the issue was properly submitted and properly charged upon.
To begin with, from the record we determine that defendant's failure to drive his automobile upon the right half of the roadway amounted to a violation of Section 4511.25, Revised Code, and that he was, therefore, guilty of negligence per se which was the proximate cause of this accident. Defendant sought toexcuse such failure and avoid this legal imputation of negligence by establishing that, without his fault and because of circumstances beyond his control, compliance with the statute was rendered impossible.
The testimony in the record shows that the car of defendantskidded or slipped across the center line onto the left half of the *Page 383 roadway and there collided with the car in which plaintiff was a passenger; that there was fresh snow all the way up Serpentine Hill and the slipping or skidding started at a place where defendant's car was coming out of a banked curve and righting itself on to the straightaway; that at no time did defendant slacken his speed in rounding the two banked curves or entering the straightaway; and that there was ice on the road at the place where defendant's car stopped after such skidding and slipping, which was some 35 feet from the place where it started. The record does not show the presence of any ice at the place where the skidding or slipping started. Witnesses did testify as to the presence of ice or packed-down snow in the "area" of the accident. But defendant testified as follows:
"Q. Didn't you go back to where you started to skid or slide? A. No.
"Q. You don't know where you started to slide, since you didn't go back and look; you, therefore, don't know whether ice was there or not, do you? A. No."
Likewise, the testimony of the defendant is as follows:
"Q. But the road was covered snow? A. Yes, it was.
"Q. And you had driven up Serpentine Hill many times? A. Yes.
"Q. And knew it was a bad road in the winter time when there was snow on the road, isn't that true? A. Yes.
"Q. And you kept driving at the same rate of speed up that road all the way from the time you started up there until the time of this accident, isn't that true? A. Yes, approximately.
"Q. Without any slacking of speed at any time? A. Like I said yesterday, I don't know that.
"Q. You are not conscious of slacking your speed at any time as you started down west on Twelfth Street, went across the railroad tracks and started up the hill, you continued at the same speed to the best of your knowledge all the way? A. I slowed down at the railroad tracks.
"Q. And picked up speed again? A. Yes, I hit the gas again.
"Q. Was there any tracks in the snow ahead of you on the road? A. No, there weren't; not that I could see. I noticed that about it, because I figured they usually put something on Serpentine Hill the first thing. *Page 384
"Q. There wasn't any tracks on the road? A. No, there wasn't anything there, no cinders or nothing.
"Q. You knew you were going up that road without any cinders or sand being placed on it by the Canton City Street Department? A. Right.
"Q. You know that road slopes to the left, does it not? A. The first one goes to the right.
"Q. When you get to the top, that curve slopes to the left? A. Yes, at the top.
"Q. You were just coming out of that curve when you started to slide? A. No, I was in the straight-a-way.
"Q. Going at the same speed you had gone around the curve? A. Approximately, yes.
"Q. Your headlights shining ahead? A. Yes.
"Q. 250 to 300 feet? A. Yes.
"Q. Right? A. Yes, approximately; I don't know exactly the number of feet.
"Q. And then you continued on until your car came over and the left front portion of your car struck the left front portion of the other car, is that right? A. Yes.
"Q. And after that collision, your car went on past the Roman car and turned around? A. Yes.
"Q. Headed back the other way? A. Yes.
"Q. What period, or what distance in feet were you sliding or skidding? A. I would say around thirty, thirty-five feet.
"Q. Up to the point that you hit the car? A. Yes."
In view of this testimony of the defendant himself, it is apparent that there was no showing that there was ice where the defendant claimed he started to skid and that therefore he did not "establish" that the skidding was unavoidable. The record is devoid of any evidence that the condition of the road was any different at the place where defendant claimed he started to skid than it was all the way up Serpentine Hill.
It is, therefore, our opinion that the trial court should have directed a verdict in favor of plaintiff, leaving only the amount of damages for the jury. Of course, defendant contends contra. Even so, the court should have more fully charged the jury that once negligence per se had been established the burden of proof is changed and is cast upon the defendant to show by a preponderance of the evidence that the accident was unavoidable. *Page 385 Even then the verdict was against the manifest weight of the evidence, because in our opinion the defendant did not present any evidence tending to establish an excuse for his negligence per se.
In view of our holdings herein, assignments of error Nos. 2, 3, 4, 5, 6 and 7 are all sustained.
The judgment is reversed and the cause remanded for further proceedings according to law.
Judgment reversed.
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