McLain v. Ford

McLaughlin, P. J. In this appeal on questions of law the parties are designated as in trial court. Defendant, 18 years of age, defending by guardian ad litem, was driving his automobile home from work. The weather was bad. It had been snowing for three hours. The road was slippery and snow-covered. While traveling at a moderate speed he came over a slight knoll and headed into a banked curve. At this point his car slipped and skidded over the center line and into the left lane and collided head on with plaintiffs’ truck which was entirely on its side of the road. Plaintiffs filed suit for personal injuries. Defendant filed a general denial and under it claimed unavoidable accident. The jury verdict favored the defendant. Plaintiffs appeal and assign nine errors: “1. The judgment is manifestly and patently against the weight of the evidence. “2. The court erred in charging the jury on unavoidable accident. “3. The court erred in charging the jury that a violation of R. C. 4511.25 might constitute negligence. ‘ ‘ 4. The court erred in placing a burden of proof on the appellants in addition to the burden required by law. “5. The court erred in submitting issues to the jury which had been established by admissions of the appelleee and by uncontradicted evidence. ‘ ‘ 6. The court erred in giving a special instruction without applying it by apt language to the evidence in- the case. “7. The court erred by giving a misleading charge in matters materially affecting appellants’ rights. “8. The court erroneously rejected evidence offered by the appellants. *71 “9. The court erred in overruling appellants’ motion for a new trial.” Assignment of error No. 1 goes to the weight of the evidence. A word picture of this accident is obtained from the defendant’s own testimony: “Q. Would you relate to the jury what the weather conditions were on that day? A. Well, it had been snowing. I think, for three hours. The weather conditions were very bad. It was good highway and it was covered with maybe five to six inches of snow and the highway was in very bad condition. “Q. Well now, would you describe to the jury, as near as you can recall today, just what happened as you were proceeding on 75, near Avondale? A. Well, I was proceeding in the direction of Roseville, and as I stated the highway was in very bad condition. There were deep ruts where, — where, I suppose, cars had proceeded before me and had made the highway, the snow upon the highway, very choppy and slushy, for it was — well, ruts for each tire to run in, and the snow was piled up in the middle. “ Q. And describe to the jury just how the accident came about? A. Well, I was heading in the direction of Roseville and I do not recall exactly what point of the highway it happened on, being conditions of the highway, that picture was so much different. Well, as I stated, there were ruts and I had to concentrate on the road very intensely to maintain control of your car, and I was traveling along at a speed I recall as being twenty-five miles an hour, not over thirty, I would say. I recall I came to this place. It wasn’t very easy to tell where the road was exactly, and all of a sudden the car began to turn, the front end to one side of the road to my left, and there wasn’t anything you could do, and so I began controlling the car and trying to control the car at the same time you couldn’t control it. The ruts in the road, as I stated, began to take control of the car and move it to the left side of the highway. ( ( ^ *}£ 4? “Q. There is no question in your mind but that your car did wind up on the wrong side of the road? A. I believe it did. “Q. And then it struck McLain’s car while it was on their side or while they were on their side of the road? A. That is correct. *72 “Q. Was there any difference in the road at the point of the accident, on Route 75, than at any other point on that road from the intersection to it? A. No, I wouldn’t say so. t í ^ 4s “Q. Well now, you, of course, are familiar with the place where the accident happened? A. Yes. “Q. And worked in Zanesville and living as you were in Crooksville, did you say? A. That is right. “Q. You passed that place about two times a day? A. I believe so. “Q. Well, would it be safe to say, Mr. Pord, that before this accident occurred that you had been over that road a hundred times ? A. I would imagine so. ’ ’ There is in evidence defendant’s plea of guilty to violating a safety statute, Section 4511.25, Revised Code (operating his automobile left of center), in this accident. Prom the whole record and particularly from the defendant’s own testimony, we determine that he was guilty of negligence per se, which was the proximate cause of the accident. The evidence on this is so clear and undisputed as to make the verdict and judgment contrary to law. Therefore, the first assignment of error is sustained, not because the verdict and judgment is contrary to the weight of the evidence, but because it is contrary to law. The second assignment of error is in charging the jury on unavoidable accident. Did the evidence justify the trial court in submitting that issue to the jury? The defense of unavoidable accident “merely negatives negligence and may be shown under a general denial.” See Kohn, Admx., v. B. F. Goodrich Co., 139 Ohio St., 141. But where, as here, the defendant admittedly failed to comply with the safety statute and is guilty of negligence per se, then the law puts upon him the burden to excuse such failure by establishing that, without his fault and because of circumstances over which he had no control, compliance with the statute was rendered impossible. See Satterthwaite v. Morgan, 141 Ohio St., 447, and Bush, Admr., v. Harvey Transfer Co., 146 Ohio St., 657. And the burden is on one who claims unavoidable accident to show by a preponderance of the evidence that the accident was caused by something that was unforeseeable and uncontrollable. See Lehman v. Haynam, 164 Ohio St., 595. *73 See, also, Masterana v. Cashner, 114 Ohio A.pp., 379. This writer was author of the majority opinion therein. That case had a very similar fact situation. We there stated (in opinion on application for rehearing): “* * * What we are saying is that, when this defense is interposed and the evidence conclusively shows that the defendant is prima facie guilty of negligence per se which was the proximate cause of the injury, the burden of proof is upon him to show that his violation of the statute was due to events unforeseeable, acts of G-od or other causes over which he had no control and which rendered it impossible for him to have avoided the injury. And we conclude in this case that the defendant, knowing the condition of this snowy road, had a duty to be in such control of his automobile that it did not skid to the wrong side of the road. The skidding was a foreseeable circumstance under such conditions. “* * The fundamental and underlying principle is the unforeseeableness of either the blackout or the skidding or whatever causes the prima facie negligence. If one has any reason to anticipate the occurrence he is not excused. “We think that this not only is the law but that it should be. In this day and age of heavy automobile and truck traffic, if the drivers thereof so manage their vehicles on wet, snowy and slippery roads, which are well known to them, so that they skid across the center line and smash up innocent occupants of other automobiles obeying the law, and can then escape liability by claiming an inevitable accident, this court wants no part of such pronouncement. ’ ’ When the search is put upon this record it reveals that the case should be reversed, among other grounds, upon the proposition that as a matter of law there was no evidence to justify submission of the issue of unavoidable accident to the jury. There was no evidence that in any manner tended to excuse this defendant being on the wrong side of the highway when this accident happened. It follows that the trial court erred in submitting this issue to the jury and in charging upon it. The second assignment of error is, therefore, sustained. The third, fourth and fifth assignments of error go to the trial court’s charge: (3) In charging that a violation of Section 4511.25, Revised Code, might constitute negligence, (4) in *74 placing a burden of proof on tbe plaintiffs in addition to tbe burden required by law, and (5) in submitting issues to the jury which had been established by admissions of the defendant and by uncontradicted evidence. Our perusal of the evidence prompts the finding that the facts attending certain issues are admitted or the evidence in respect thereto is not in conflict. Those issues are (1) defendant’s negligence per se; (2) proximate cause of the accident; (3) whether the roadway was two lane; and (4) unavoidable accident. These issues, by the evidence, are resolved in favor of the plaintiffs as a matter of law. Yet the trial court charged: “If you find from the evidence, by a preponderance thereof, that said highway, at the place where the collision occurred, was sufficiently wide for one line of traffic in each direction with respect to the two motor vehicles involved; that defendant failed to there drive upon his right half of the roadway and so as to give to the other vehicle one half, or as nearly one half of the main travelled portion of the roadway as was reasonably possible, unless it was unavoidable, and that such failure to do so, if negligence, proximately caused the injuries and damage complained of by either or both of the two plaintiffs, each plaintiff is entitled to recover actual damages shown in such plaintiff’s behalf.” (Emphasis supplied.) By those passages of the charge, the trial court committed prejudicial error. There was no dispute as to the proximate cause of the accident. There was no dispute as to the roadway being two lane. There was no dispute as to defendant’s violation of the safety statute by driving his car left of center. As to these issues the trial court had the duty to charge the jury the result that must follow an application of the law to the facts as established. We have already indicated that there was no sufficient evidence to justify submission of unavoidable accident as an issue to the jury. Even assuming contra, the charge was erroneous in that by the use of the words, “unless it was unavoidable,” and, “if negligence,” it put upon the plaintiffs the added burden of showing that the accident was not an unavoidable one. Generally, it can be said that the charge was upon matters not really at issue, the overall result being that many parts thereof were superfluous, complex and confusing. But the *75 glaring prejudicial error committed was that it placed upon the plaintiffs too great a burden of proof. Assignments of error Nos. 2, 3, 4 and 5 are, therefore, sustained. Assignment of error No. 6 goes to the following special instruction : “Ladies and gentlemen of the jury, I charge you in this case that the skidding of defendant’s automobile was not, by itself, negligence. In order for the skidding of his automobile to be the basis for the recovery of damages for a collision caused thereby, it must be shown that negligence on the part of the defendant caused such skidding.” Plaintiffs contend error in that the court thereby gave the jury an abstract proposition of law without applying it to this case. We disapprove the instruction. But in view of the correct statement of law contained, we cannot say that it was prejudicial error. This assignment of error is, therefore, overruled. Assignment of error No. 7 goes to the charge as a whole being misleading. This assignment is sustained for the reasons stated elsewhere in this opinion. Assignment of error No. 8 goes to the rejection of evidence of possible future medical expenses. Such matters are largely within the sound discretion of the trial court. Inasmuch as the jury never reached the question of amount of damages, we cannot say that the trial court abused its discretion. Such assignment of error is, therefore, overruled. Assignment of error No. 9 goes to the overruling of the motion for a new trial. Assignment sustained for the reasons stated elsewhere in this opinion. Judgment reversed and cause remanded. Rutherford, J., concurs.