Archer v. City of Port Clinton

Schneider, J. The question of law involved is whether, where the evidence is undisputed that a pedestrian (1) has [76] present knowledge of a dangerous condition in the curb of a city street, (2) departs from a safe path along a driveway into the area beyond the driveway and near the curb where the danger lies unseen under fallen snow, and (3) takes no precaution to avoid it, such conduct of the pedestrian constitutes contributory negligence as a matter of law. The majority of the court is of the opinion that it does, and that Mrs. Archer’s negligence in this case directly contributed to the injuries of which complaint is made. A motion for a directed verdict in favor of a defendant interposed after the opening statement raises a question of law on the facts presented by that statement and the petition, all of which must be conceded. Vest, a Minor, v. Kramer, 158 Ohio St. 78. The situation is as if an agreed statement of facts was presented, except that every reasonable inference from the facts favorable to the party against whom the motion is directed should be indulged. However, omissions, which, if present, might cast a different conclusion, cannot be supplied by the eourt. In the course of his remarks in this case, counsel obviously referred to a diagram. But the record before us does not include a reproduction of any such diagram and therefore discloses nothing to indicate that the trial judge did not indulge in every presumption favorable to the plaintiff from the petition, the opening statement and the diagram. It has been remarked that trial courts should observe great caution in granting judgment on the opening statement to the extent that inquiry should be made, sua sponte, whether counsel desires to add to or explain his remarks. Neckel v. Fox, 110 Ohio St. 150; Cornell v. Morrison, 87 Ohio St. 215. However there is no indication in the record that counsel here sought to elaborate nor does he claim error on the ground that opportunity so to do was not extended to him. The gaping hole at the curb had existed for some period of time in front of appellants’ property, and Mrs. Archer as well as her entire family knew it and had successfully avoided it. That “she was under the impression as she went around the car, that the hole was further [sic] from the automobile,” [77] is conclusive that knowledge of the danger had become instinctive with her even to the instant of the accident. Although concealed by snow from her sight, it still lurked in her mind. It is unknown from the record how far the defect was from the driveway. We think that this is immaterial, as counsel apparently thought it was. The farther it was, the greater was her convenience in avoiding it and her carelessness in finding it. The closer it was and the less convenience in avoiding it, the greater should have been her concern for her own safety to avoid it. When she departed from the driveway, which had been cleared of snow, her conduct ill became that of an ordinarily prudent person under the combination of circumstances in failing to take the precaution of stopping and making sure of her bearings. See Village of Mineral City v. Gilbow, 81 Ohio St. 263, at pages 278 and 279; Lundy v. City of Ames, 202 Iowa 100, 209 N. W. 427. This is not a case of failing to search out danger when there is no reason to apprehend it. Nor is it a case of admitted previous knowledge of a defect coupled with a genuine issue of fact whether the pedestrian was conscious of it at the time of injury. Judgment affirmed. Taft, O. J., Zimmerman, Matthias and O’Neill, JJ., concur. HERBERT and Brown, JJ., dissent.