Schade v. Carnegie Body Co.

Reilly, J. Appellant advances four propositions of law: 1. “Where a party has specifically waived all objections to jury instructions requested by the opposing party, an Appeals Court may not base reversal of a jury verdict on a jury instruction given pursuant to that waiver.” 2. “In the absence of plain error, an Appeals Court may not base reversal of a jury verdict on a jury instruction neither assigned as error by appellant nor objected to at trial.” 3. “It is the duty of the Trial Court to properly and fully instruct the jury as to the vital issues in the case as raised by the pleadings and the evidence. Where some evidence is presented from which contributory negligence could reasonably be inferred, a fair and balanced charge on that issue is not prejudicial error.” 4. “In considering whether a Trial Court’s charge to the jury was misleading or confusing, the charge must be considered as a whole. If the charge so construed is a correct statement of the law and so adapted to the case as not to be misconstrued or misunderstood by the jury in the application of the law to the facts, the Trial Court has properly fulfilled its responsibility.” — 209 — As to appellant’s first proposition of law, Civ. R. 51(A) reads in relevant part that: “A party may not assign as error the giving or the failure to give any instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” There is a “plain error” exception to this rule, however, as State v. Long (1978), 53 Ohio St. 2d 91, paragraph three of the syllabus, states: “Notice of plain error under Crim. R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” It follows that if this limiting principle is applicable to a criminal action, it is also valid in a civil case. A “plain error” is obvious and prejudicial although neither objected to nor affirmatively waived which, if permitted, would have a material adverse affect on the character and public confidence injudicial proceedings. In this case, plaintiffs failed to timely object to the charge of contributory negligence. There could only be plain error where there is the complete absence of any reasonable possibility of negligence on the part of the plaintiff. Since there was sufficient evidence presented upon which to base the charge, there is no plain error. Therefore, that question could not successfully be raised on appeal. Moreover, even if it was proper to consider the charge on appeal, the appellate court erred in concluding there was insufficient evidence to justify the charge. For instance, the point of impact between plaintiff and defendant’s automobile was on the right side of the vehicle. Defendant’s testimony shows that her vehicle never left the pavement. The investigating officer did not discover skid marks or mud on the front tires or the road. Furthermore, plaintiff was walking on a narrow berm only four to six inches from the road. Thus, it could reasonably be inferred that she wavered onto the road at the moment of the accident. Consequently, there is sufficient evidence for an inference of contributory negligence sufficient to support the — 210 — trial court’s instruction. Therefore, appellant’s first proposition of law is well taken. Concerning appellant’s second proposition of law, although App. R. 12(A) indicates that it is within a Court of Appeals’ discretion to consider errors not specifically set forth in the record and separately argued in counsel’s brief, the fundamental rule is that an appellate court will not consider any error which could have been brought to the trial court’s attention, and hence avoided or otherwise corrected. State v. Glaros (1960), 170 Ohio St. 471, paragraph one of the syllabus. In this case, while plaintiffs referred to the contributory negligence charge in their brief to the appellate court, such reference was made only in conjunction with the alleged error involving the “assured clear distance” instruction. There was no error actually alleged concerning the charge on contributory negligence. Accordingly, appellant’s second proposition of law is also well taken. As to appellant’s third proposition of law, the court properly refused to charge on “assured clear distance” and correctly charged on contributory negligence. Erdman v. Mestrovich (1951), 155 Ohio St. 85, holds that when there is no evidence to support an issue, no charge should be given thereon. Erdman further indicates that giving an instruction on contributory negligence is not inconsistent with the refusal to give an instruction on “assured clear distance” where the evidence supports such an instruction. In this case, there is no evidence that plaintiff was a discernible object in the front and within the directional line of defendant’s travel for a time sufficient to allow defendant to avoid the accident with reasonable care. Nonetheless, based on the evidence, it was not inconsistent for the trial court to instruct the jury on contributory negligence. Therefore, appellant’s third proposition of law is well taken. Finally as to appellant’s fourth proposition of law, considering the trial court’s instruction in its totality, those portions alleged to be erroneous were not improper. The instructions, as a whole, were sufficiently clear to enable the jury to understand the law as it applied to the facts of this case. Youngstown Municipal Railway Co. v. Mikula (1936), 131 Ohio St. 17; Centrello v. Basky (1955), 164 Ohio St. 41. Fur — 211 — thermore, plaintiffs accepted the court’s instructions to the jury, with the sole exception of the “assured clear distance” charge. Hence, plaintiffs waived any objections they had, other than with regard to the “assured clear distance” charge. Thus, appellant’s fourth proposition of law is also well taken. Accordingly, for the foregoing reasons, the judgment of the Court of Appeals is reversed. Judgment reversed. W. Brown, Acting C. J., Moyer, Locher, Holmes and Krupansky, JJ., concur. C. Brown, J., dissents. Reilly, J., of the Tenth Appellate District, sitting for Celebrezze, C. J. Moyer, J., of the Tenth Appellate District, sitting for Sweeney, J.