Laughlin v. Cleveland

OPINION By KOVACHY, J: This appeal comes to this court on questions of law from a judgment entered in the Common Pleas Court of Cuyahoga County wherein the trial court directed the jury to bring a verdict in favor of the defendant at the close of plaintiff’s evidence. Plaintiff, appellant herein, assigns as errors (1) the court’s refusal to submit the case to the jury and (2) the court’s refusal to allow a poll of the jury. At the very outset, we overrule assignment No. 2 which is palpably [429] without merit. A directed verdict in favor of a party is the decision of the court. The jury in such case is merely the instrumentality for carrying out the order of the trial judge and acts purely in a ministerial capacity. The polling of the jury under those circumstances not only has no sanction in law but could be of no help whatever to the trial court or an appellate court in determining the question of whether or not reasonable minds can differ as to the evidence presented when construed most favorably in behalf of the party against whom the motion for a directed verdict is presented. The case here involves a collision between an automobile driven by plaintiff and a bus operated by the Cleveland Transit System at the intersection of Milford Road, Meadowbrook Boulevard and Warrensville Center Road in University Heights. Milford Road runs northwest and southeast, Meadowbrook Boulevard northeast and southwest, and Warrensville Center Road north and south. Meadowbrook Boulevard and Milford Road join Warrensville Center Road from the east. Meadowbrook Boulevard alone continues westerly from Warrensville Center Road. Plaintiff’s Exhibits 1 and 4 show a stop sign for southwest traffic on Meadowbrook Boulevard before entering the intersection but none for Milford Road although the plaintiff testified there was a stop sign there. This five-point intersection is controlled by three sets of automatic traffic lights positioned as shown in Joint Exhibit No. 1. The northernmost set controls traffic flowing northbound on Warrensville Center Road. The southernmost set controls traffic flowing southbound on Warrensville Center Road. The set in between these two controls the flow of traffic on Milford Road and Meadowbrook Boulevard. Plaintiff testified that he was driving northwest on Milford Road about 7:15 A. M. on March 25, 1954, in daylight; that as he approached this intersection, the traffic light that controls traffic on Meadowbrook Boulevard and Milford Road was “Green” or “go”; that he was going ten to fifteen miles per hour; that he looked to his right to see if there was any traffic on Meadowbrook Boulevard and that he saw nothing; that there were no leaves as yet on the trees and he could see up Meadow-brook Boulevard for one hundred feet; that he looked to the left and “saw no traffic coming from Warrensville north his way from Meadow-brook” and “proceeded to take advantage of the green light and came across, almost made my complete crossing of this junction here when I was struck.” He testified further that he proceeded in a straight course from Milford Road across the intersection comprising the open space within the prolongation of the curb lines of Meadowbrook Boulevard and Milford Road and was about to start turning to the right to go north on Warrensville Center Road when a bus operated by the defendant southwest on Meadowbrook Boulevard struck the midsection of the right of his automobile with its left front corner. Plaintiff in his amended petition alleges that the defendant in the operation of its bus was negligent in the following respects: 1. In that it failed to abate the speed of its vehicle when its agent saw or should have seen plaintiff’s automobile in its path; [430] 2. In that through its agent it failed to keep a proper lookout for other traffic, particularly the vehicle driven by plaintiff; ■ 3. In that it failed to sound a warning to plaintiff when it saw or should have seen him in its path; and 4. In that it failed to divert the course of its vehicle when it saw the automobile driven by plaintiff in its path. * * * * * Plaintiff in his brief and in argument contends that the evidence, when construed most strongly in favor of the plaintiff, showed that the plaintiff exercised due diligence while entering the intersection of the streets he and the bus were traveling, and that since the plaintiff saw no bus coming when he first looked to the right and could see some one hundred feet up Meadowbrook Boulevard and the accident occurred thereafter after the lapse of several seconds, it is reasonable to infer that the driver of the bus was proceeding at a speed at which he was unable to maintain proper control of his vehicle and that he did not exercise diligence in observing oncoming traffic, in wanton disregard of the rights of others. The defendant maintains that since Meadowbrook Boulevard and Milford Road were controlled by the “same face of the same traffic light” there was no traffic control as between those two streets and that consequently the vehicle to the right had the right of way under §4511.41 R. C. The defendant further maintains that one cannot infer that the bus was operated at an unlawful rate of speed from the lone fact that plaintiff did not see any vehicle for one hundred feet when he looked up Meadowbrook Boulevard, so as to deprive itself of its preferential right of way, citing as authority Lamden v. City of Cleveland, 165 Oh St 177, 134 N. E. (2d) 380. The trial court adopted defendant’s view of the law in its ruling on the motion. * * * * * There can be no question in this case that the traffic control signal regulated traffic on both Meadowbrook Boulevard and Milford Road. It was hung, as shown in Plaintiff’s Exhibit No. 4, with the face on the east side pointing more toward Milford Road than Meadowbrook Boulevard but clearly intending to control traffic on both streets. Moreover, the streets are of equal width and extend through residential districts. They converge from a generally easterly direction and intersect each other and Warrensville Center Road to form a five-point intersection Sec. 4511.13 R. C., in parts pertinent hereto reads; “Whenever traffic is controlled by traffic control signals exhibiting the words ‘go,’ ‘caution,’ or ‘stop,’ or exhibiting different colored lights successively one at a time . . . the following colors only shall be used and the terms and light shall indicate and apply to operators of vehicles, streetcars and trackless trolleys, and pedestrians as follows: “(A) Green alone or ‘go’ signal: “(1)..... “(2) All other traffic facing the signal except as provided under §§4511.36 and 4511.58 R. C., may proceed straight through or turn right or left, unless a sign at such place prohibits either such turn. But such [431] traffic shall yield the right of way to vehicles, streetcars, and trackless trolleys lawfully within the intersection and to pedestrians lawfully within a crosswalk at the time such signal is exhibited.” “Intersection” is defined in §4511.01 (II) R. C.: “ ‘Intersection’ means the area embraced within the prolongation of the lateral boundary lines of two or more highways which join one another.” It is our view, on the basis of the conditions existing at this intersection and the law applicable thereto, that vehicles proceeding westerly on Meadowbrook Boulevard and Milford Road had equal rights to enter and proceed across said intersection on the “green” or “go” light subject only to the qualification that each exercise ordinary care commensurate with the existing danger of collision. In Welch v. Canton City Lines, Inc., 142 Oh St 166, 50 N. E. (2d) 343, wherein an accident took place between two busses at an intersection, one crossing the intersection east on the “green” light and the other north with the light on its side not in operation, the Supreme Court held in paragraph 2 and 3 of the syllabus, as follows: “2. A motor vehicle has the right to enter any street intersection upon a signal by a police officer or a green or go light in a traffic signal located in such intersection, but such driver is not absolved from exercising ordinary care in operating such vehicle. “3. Where a motor vehicle traveling north in a lawful manner on a main thoroughfare enters a street intersection prior to another motor vehicle which is traveling east on an intersecting street and enters such intersection upon a green or go light, both vehicles are lawfully in such intersection; the drivers of such vehicles have equal rights and each is required to exercise ordinary care to avoid a collision.” (See Ohio Oil Co. v. Liles, 54 Oh Ap 124, 6 N. E. [2d] 18.) We hold, therefore, that the traffic light here in question controlled the movement of traffic on both Meadowbrook Boulevard and Milford Road; that plaintiff’s automobile and defendant’s bus were lawfully within the intersection of these streets, having entered on the “green” or “go” light; that the drivers of these vehicles had equal rights to proceed across said intersection subject to the duty of each to exercise ordinary care commensurate with the conditions and circumstances existing to avoid a collision; that the statute granting the vehicle approaching from the right the right of way had no application. The court in considering a motion for a directed verdict at the close of plaintiff’s evidence must construe the evidence, together with all reasonable inferences, most strongly in favor of the plaintiff. In view of plaintiff’s testimony that the bus struck the side of plaintiff’s automobile when he had almost traversed the intersection, and in view, further, of plaintiff’s evidence that as he entered the intersection the bus was not in sight within approximately a distance of one hundred feet on Meadowbrook Boulevard, a reasonable inference might be drawn that the driver of the bus was negligent in so running into him by failing to abate his speed, keep a proper lookout, sound a warning or divert his course when he saw or should have seen plaintiff’s automobile. [432] At least it presented an issue upon which reasonable minds could reach different conclusions and was for a jury to decide. By reason whereof, the motion for a directed verdict should have been overruled and the defendant required to go forward with his evidence. Leonard v. Kreider, 128 Oh St 267, 190 N. E. 634: “2. It is prejudicial error for a trial court to direct a verdict in favor of the defendant at the conclusion of the plaintiff’s evidence when reasonable minds might conclude that such evidence establishes all the essential elements of the plaintiff’s case.” Accordingly, the judgment is reversed and the cause remanded for further proceedings according to law. Exceptions. Order see journal. HURD, J, concurs. SKEEL, PJ, dissents'.