Corrigan v. E. W. Bohren Transp. Co.

Combs, Circuit Judge. This appeal is from a judgment for the plaintiff in an action for wrongful death. By reason of diversity of citizenship of the parties, the action was brought in the United States District Court for the Northern District of Ohio, Eastern Division. There is little dispute about the facts. The accident which caused the decedent’s death occurred at approximately 1:30 a. m., on the Lakeland Expressway near Cleveland, Ohio. The Lakeland Expressway is a four-lane superhighway with a median strip separating the eastbound and westbound lanes. The decedent, Mrs. Shirlee Ann Corrigan, was alone in her disabled automobile which was facing east in the right lane next to the berm of the highway. One witness, Timothy Prayner, saw the disabled vé-hicle and stopped to offer assistance. Mrs. Corrigan was seated in her car trying to start the motor but apparently the battery was dead. Prayner offered to take her to a service station but she declined to leave the car. He remained about ten minutes and then drove away. Shortly after Prayner left, another motorist observed Mrs. Corri-gan sitting in her car which was still on the highway. Recognizing her, he turned off the expressway, intending to return and offer his help. During this interval, estimated at approximately two minutes, Mrs. Corrigan’s car was struck from the rear by defendant’s truck. The defendant admitted negligence in that its driver was not keeping a proper lookout, but contended that Mrs. Corrigan had been contributorily negligent. In answer to interrogatories, the jury found that Mrs. Corrigan was negligent “in failing to protect her own life by not getting herself off the highway,” but that her negligence was not a proximate cause of her death. . The defendant requested the court to enter judgment notwithstanding the verdict, which request was refused. The narrow question presented on this appeal is whether the trial judge erred in refusing to hold, as a matter of law, that the decedent’s negligence was a proximate cause of her death. The answer to this inquiry depends on the answers to two others: (1) Under Ohio law, is proximate cause always a question for the juryf (2) If the an [203] swer to this is negative, was Mrs. Corrigan’s negligence, as a matter of law, a proximate canse of her death? Plaintiff relies heavily on White v. Ohio Power Co. (1960), 171 Ohio St. 148, to support his contention that proximate cause is always a jury question. This contention is based on the language of syllabus one of White: “Where in an action arising from a motor vehicle collision there is evidence of negligence on the part of the defendant and of contributory negligence on the part of the plaintiff, which contributory negligence may have continued to the moment of impact, a jury question exists as to whether such negligence of the plaintiff proximately contributed to the collision.” Since no qualification was placed on this apparently absolute statement, plaintiff argues that a jury question is always presented on the issue of proximate cause. We do not so construe White. There is no language in the body of the opinion which convinces us that the Ohio Supreme Court intended to change the common law rule and overrule earlier Ohio cases which hold that proximate cause may in some circumstances become a question of law. See Ziebro v. Cleveland (1952), 157 Ohio St. 489; Lawrence v. Toledo Terminal R.R. (1950), 154 Ohio St. 335; Patton v. Pennsylvania R. R. (1939), 136 Ohio St. 159. Regardless of what the White syllabus means, however, later Ohio cases hold that the question of proximate cause may under some circumstances become a question of law. In Bird v. Hart (1965), 2 Ohio St. 2d 9, 11, it was said: “In the instant cases, defendant was negligent as a matter of law. Although the question of proximate cause is ordinarily one for the jury (see White v. Ohio Power Co., 171 Ohio St. 148; Clinger v. Duncan, 166 Ohio St. 216), reasonable minds could only conclude that in the instant cases defendant’s negligence was the proximate cause of the collision. The trial court should, therefore, have directed verdicts in favor of plaintiffs on the question of liability * * *.” In Kehrer v. McKittrick (1964), 176 Ohio St. 192, 195, it was said: “The question of proximate cause is ordinarily [204] one of fact, but, where there is no conflict in the evidence, such question becomes one of law.” The case of North v. Pennsylvania R. R. (1967), 9 Ohio St. 2d 169, is to the same effect. We regard these cases as decisive. So, the question is whether decedent’s negligence was such that reasonable minds could only conclude that it was a proximate cause of her death. Bird v. Hart, supra. We are of the opinion the proper answer is “Yes.” Proximate cause is a troublesome phrase. It has a particular meaning in the law but is difficult to define. It has been defined as: “That which immediately precedes and produces the effect, as distinguished from a remote, mediate, or predisposing cause; that from which the fact might be expected to follow without the concurrence of any unusual circumstance; that without which the accident would not have happened, and from which the injury or a like injury might have been anticipated.” 65 Corpus Juris Secundum, Section 103, Negligence, pages 1130-1131. The Ohio Supreme Court, in reference to a plaintiff charged with contributory negligence, defined the phrase in these words: “ [I] f by the exercise of due care he could have avoided injury and death, his failure to exercise such care was the proximate cause of his death. ’ ’ Patton v. Pennsylvania R. R., supra, 136 Ohio St. at 167. In the later case of Clinger v. Duncan (1957), 166 Ohio St. 216, 222, it was said: “[I]t is generally true that, where an original act is wrongful or negligent and in a natural and continuous sequence produces a result which would not have taken place without the act, proximate cause is established, and the fact that some other act unites with the original act to cause injury does not relieve the original offender from liability.” The question then comes down to this: If plaintiff’s decedent had not remained in the car on the highway, would she have been injured? There can be only one answer. The conclusion is inescapable that, if Mrs. Corrigan had somehow been able to get her car off the highway, there would have been no accident. Likewise, even though the car was left on the highway, if she had been out of the car and off the highway, she would not have been injured. [205] There was no real issue as to proximate cause. The decisive issue was whether the decedent was negligent in remaining in her stalled car on this heavily travelled expressway. The jury having found on sufficient evidence that she was negligent, proximate cause followed as a matter of law. Accordingly, the District Court should have entered judgment for the defendant notwithstanding the verdict. Reversed and remanded.