Hipp v. Williams

Smith, J. This is an appeal by plaintiff-appellant on questions of law from a judgment entered on a verdict in the Common Pleas Court for defendant-appellee. The parties will here be referred to as plaintiff and defendant as they appeared in the trial court. Suit was instituted in the Common Pleas Court by plaintiff to recover for personal injuries and damage to an automobile alleged to have been received when the automobile operated by plaintiff was struck in the rear by the automobile operated by defendant, the claim for damages to the automobile being abandoned during trial. The first trial resulted in a verdict for plaintiff and a new trial thereof was had following the granting of a motion by defendant to set aside the verdict and for a new trial. The second trial resulted in a verdict and judgment for defendant and a motion for new trial was overruled. Plaintiff appeals from that judgment. The amended petition alleges that the collision was due directly and proximately to the negligence of the defendant, (a) in operating his automobile without having the same under control, (b) in failing to stop or decrease his speed or change the course of his path so as to avoid colliding with plaintiff’s automobile, and (c) in failing to stop within the assured clear distance ahead, which failure resulted in striking the automobile *474 operated by the plaintiff. The answer to the amended petition admitted a collision occurred but not in the manner as described in the amended petition, and alleged an affirmative defense of contributory negligence of the plaintiff, denied by plaintiff’s reply. Plaintiff assigns the following errors: (1) That the court erred in overruling the motion for a new trial; (2) error in giving special instructions to the jury; (3) error in the general charge to the jury; (4) the verdict is manifestly against the weight of the evidence; and (5) other errors appearing in the record. The evidence is not entirely in conflict. It reveals that plaintiff’s automobile was struck from the rear by defendant’s automobile while traveling in the same lane of traffic and direction in an intersection of two streets in the city of Toledo, the automobile of plaintiff appearing to slow down or jerk without giving a hand or mechanical signal of such movement. Upon the fourth assignment of error, after a careful consideration of the evidence, the question as to whether the injuries of the plaintiff were proximately caused by the collision of the automobiles was a question for the jury and it can not be said that the verdict and judgment are manifestly against the weight of the evidence. It is clear that the pleadings and the evidence presented the issue of assured clear distance ahead, imposing a duty on the court to instruct the jury as provided by Section 4511.21 of the Revised Code. However, upon the evidence and circumstances of this case we do not believe that the court would have been justified in directing a verdict for plaintiff as was done in Satterthwaite v. Morgan, Jr., 141 Ohio St., 447, and Bickel v. American Can Co., 154 Ohio St., 380. Especially was this warranted upon the issue of contributory negligence since sufficient evidence was adduced to present a jury question with proper instructions of law, which were given by the court to the jury. Some difficulty is encountered as to assignment of errors (2) and (3) regarding preargument instructions to the jury and the general charge to the jury. The defendant submitted six requests for instructions to the jury before argument, of which *475 five were given by the court. These instructions were correct statements of the law, elliptically but substantially here stated as follows: (1) that the defendant is presumed not to be negligent unless proved so by the greater weight of evidence, and negligence cannot be presumed simply because a collision occurred; (2) that plaintiff was required to use ordinary care (defined) for her own protection; (3) that a finding of negligence of plaintiff proximately contributing to her injuries would preclude recovery by plaintiff; (4) that negligence of the defendant must be proved by a preponderance of the evidence; (5) that Section 4511.39 of the Bevised Code of Ohio provides for (reading therefrom) signals for turning a vehicle from direct course, from right to left, and that no person should stop or suddenly decrease the speed of the vehicle without appropriate signals as prescribed, either hand or mechanical, and the required movement of arm signals; that a failure to so observe the statutory requirement which contributed in any degree to cause the collision would call for a verdict for defendant. Plaintiff’s counsel stated, “Let the record show an objection bv the plaintiff to the giving of the special charges. ’ ’ The general charge to the jury was a correct statement of the law upon the issues joined as far as it went but failed to include a charge on the issue of assured clear distance ahead as provided by Section 4511.21 of the Bevised Code. At the conclusion of the general charge, the court said: “Ladies and gentlement of the jury, this concludes the instruction of the court in this case unless the attorneys have something further thev would like to have the court say to you.” Counsel for plaintiff thereupon responded to the court by saying, “Nothing,” and counsel for defendant, “No.” Counsel for plaintiff urges that all the issues in the case were not submitted to the jury because of the omission to charge on the assured clear distance ahead, which was “injected into the case” by the evidence and rendered the defendant guilty of negligence per se, and that the plaintiff was not guilty of contributory negligence. On the latter, we have found above that the issue of contributory negligence was a question for the jury. On the first question, counsel for defendant cite the case of *476 Rhoades v. City of Cleveland, 157 Ohio St., 107, 105 N. E. (2d), 2. The syllabus is as follows: “Where claimed errors in the charge of the court are errors of omission and not errors of commission, unless counsel has requested the court to supply the omissions, such errors of omission will not ordinarily justify a reversal. ’ ’ An examination of that case, including the record, briefs of counsel and opinion of the Court of Appeals (60 Ohio Law Abs., 159) by Hurd, J., Vol. 157 Ohio Supreme Court Records and Briefs, case No. 32699, in the light of the syllabus above quoted and the opinion by Taft, J., reveals some interesting similarities to the case at bar. Three trials were had in the Rhoades case. The third trial resulted in a verdict for the defendant, which was appealed to the Court of Appeals. The plaintiff excepted to the charge of the court generally. The petition charges five separate specifications of negligence covering the doctrine of last clear chance, failure to maintain proper control of streetcar, failure to maintain proper lookout and operation at a speed greater than would permit stoppage within the assured clear distance ahead. The opinion in the Court of Appeals states: “The court charged upon the doctrine of last clear chance but under plaintiff’s specifications of negligence and evidence plaintiff was not obliged to rely upon this claim alone and certainly a charge of this subject alone could not be a substitute for the duty resting upon the trial court to separate and define the other issues of fact made by the pleadings and the evidence.” In support thereof were cited the leading cases of Baltimore & Ohio Rd. Co. v. Lockwood, 72 Ohio St., 586, 74 N. E., 1071; Simko v. Miller, 133 Ohio St., 345, 13 N. E. (2d), 914; Jones v. People’s Bank Co., 95 Ohio St., 253, 116 N. E., 34; Telinde v. Ohio Traction Co., 109 Ohio St., 125, 141 N. E., 673; Lima Used Car Exchange Co. v. Hemperly, 120 Ohio St., 400, 166 N. E., 364. The opinion continues: <£# # * Nowhere throughout the charge do we find any reference to this specification of negligence [assured clear distance ahead]. It was the duty of the court under the issues made by the pleadings and the evidence to submit this issue to the jury with proper instructions and leave the determination of the issue of fact to the jury. * * * *477 “ It is true that in the course of the charge the court stated that there was a burden on both parties to keep a lookout and keep their vehicles under control but here again the court failed to charge specifically on these issues. Reference to these matters was more of a casual than a definite nature. # * * “We think that in this case the failure to separate and define the issues of fact and to accompany the same with proper instructions of law relating thereto, made the same wholly inadequate and constituted error of commission as well as omission under the particular circumstances of this esse.” (Emphasis ours.) In the opinion in the Supreme Court, Judge Taft made an exhaustive review of the above named cases and quoted paragraph five of the syllabus of Simko v. Miller, supra: “In submitting a case to the jury, it is the duty of the court to separately and definitely state to the jury the issues of fact made by the pleadings, accompanied by such instructions as to each issue as the nature of the case may require.” And then Judge Taft followed by stating: “Although the court does have such a duty, it does not follow that the omission to perform that duty would be reversible error in the event that counsel had not called such omission to the court’s attention. See Beeler v. Ponting, supra [116 Ohio St., 432]; Columbus Ry. Co. v. Ritter, supra [67 Ohio St., 58]; State v. McCoy, supra, 450 [88 Ohio St., 447].” The Supreme Court examined the opinion of the Court of Appeals. And as true in the case at bar, it is there stated in the opinion with reference to the fact that there was no contention that there was error in anything which the trial court said in its charge to the jury: “No such error is referred to by the Court of Appeals either in its journal entry or in its opinion. However, we have considered the belated contention in plaintiff’s supplemental brief, that some of the language used by the trial judge represented an erroneous charge with respect to the statutory ‘assured-clear-distance-ahead’ rule. We are of the opinion that the language referred to was not intended as and cannot be understood as a charge relating to that rule.” Although the Court of Appeals said it was' an error of com *478 mission, the Supreme Court says it was not reversible error of omission without calling same to the court’s attention under then Section 11560, General Code, and now Section 2321.03, Bevised Code. See State v. Glaros, 170 Ohio St., 471, 166 N. E. (2d), 379; Village of Seven Hills v. Cerny, 106 Ohio App., 189, 148 N. E. (2d), 99. Thus it may further be inferred that such failure to charge does not of itself alone render the other charges given erroneous. The opinion, on pages 113 and 114 of the Rhoades case, settles the question as to the degree of flagrancy or seriousness of an error of omission: “Furthermore, such a decision would necessarily amount to a holding that, if the error of omission was very serious and consequently quite apparent to counsel, then, in order to complain about it later, counsel would not have to give the court an opportunity to avoid that error when it could be avoided; but, if it was not very serious and consequently not so apparent to counsel, then, in order to complain about it later, counsel would have to give the court such an opportunity. The more serious and apparent such an error is, the easier it should be for counsel to recognize it and call the court’s attention to it. If, before the verdict, counsel is not sufficiently concerned about the potential danger to his cause from a serious error of omission to request the trial court to avoid that error when it can be avoided, it is difficult to understand why a reviewing court should later be concerned when, because of counsel’s neglect, it no longer cqn be avoided.” Considering the general exception to the preargument requests of defendant given by the court, the brief of counsel for plaintiff complains that the charges are erroneous statements of the law, but with this we disagree. However, in view of the fact that the court omitted the charge on the issue of assured clear distance ahead, it may be argued that such charges gave undue emphasis to plaintiff’s duties under the circumstances. This was likewise referred to by Hurd, J., in his opinion as follows : “We find no error in these charges per se as we think issues in respect thereof were created by the evidence. But we find that these charges in favor of the defendant, when contrasted *479 with the failure to separate and define the issues in favor of the plaintiff as raised by the pleadings and evidence, resulted in giving undue prominence and emphasis to the evidence adduced upon behalf of defendant.” We have noted that the Supreme Court examined the opinion of the Court of Appeals and, notwithstanding, it observed no error on that basis by the situation arising in the Rhoades case, which is similar to the case at bar. Hence we find assignment of error (2) not well taken. What has been discussed disposes of the other assignments of error as not well taken or nonprejudicial. Therefore, the judgment of the Court of Common Pleas is affirmed. Judgment affirmed. Fess, J., concurs. Deeds, J., dissents.