Hrovat v. Cleve. Ry. Co.

Full title: HROVAT v. THE CLEVELAND RY. CO

Court: Supreme Court of Ohio

Date published: Mar 23, 1932

180 N.E. 549 (Ohio 1932)

180 N.E. 549

Opinion

No. 23010

Decided March 23, 1932.

Court procedure — Instructing jury concerning form of verdict, after retirement — Notice to or presence of parties or counsel, necessary — Section 11452, General Code — Error proceedings — Cross-petition by defendant in error, seeking final judgment, unnecessary, when — Concurrent negligence — No recovery for remote negligence, where intervening negligence proximate cause.

1. If, after a jury retires for deliberation, they request instructions from the court concerning the form of their verdict, such instructions, under Section 11452, General Code, pertain to matters or points of law and should not be given to jury except in the presence of or after notice to the parties or their counsel.

2. In an error proceeding, where it appears that the entire record is before the reviewing court, including the ruling by the trial court on motions for a directed verdict, and in the reviewing court an unsuccessful litigant seeks final judgment in his favor upon the uncontroverted facts, such litigant, if he be a defendant in error, need not file a cross-petition in error in order to secure final judgment.

3. In a suit against two defendants for concurring negligence, where it appears that the negligence of one of the defendants was remote and that the intervening negligence of the other was the sole or proximate cause of plaintiff's injuries, no recovery can be had against that defendant whose negligence was remote.

ERROR to the Court of Appeals of Cuyahoga county.

This action was instituted in the common pleas court by Frank Hrovat, plaintiff in error, against two defendants, the De Lux Cab Company and the Cleveland Railway Company, seeking damages for personal injuries arising out of a collision of a taxicab of the De Lux Company with the street car of the Cleveland Railway Company. Hrovat, plaintiff below, was a passenger riding in the taxicab.

For the sake of brevity in this opinion Hrovat will be alluded to as the plaintiff; the De Lux Cab Company, as the cab company; and the Cleveland Railway Company, as the railway company.

Plaintiff in his petition charged the cab company with four specifications of negligence. These need not now be considered. In his petition plaintiff charged the railway company with being negligent in two respects: First, in operating a street car directly in the path of the taxicab; and, second, in failing to abate the speed and stop the progress of the street car when it saw, or in the exercise of due care should have seen, that if it proceeded forward a collision with the taxicab was sure to result. The railway company in its answer denied that it was guilty of any negligence.

In the trial court plaintiff secured a verdict and judgment against both defendants. During the progress of the trial, at the close of plaintiff's evidence, the railway company moved for a directed verdict in its behalf. This motion was overruled and exceptions taken. Later at the close of all the evidence counsel for the railway company renewed the motion for a directed verdict, which motion was likewise overruled and exceptions taken. The railway company alone prosecuted error to the Court of Appeals from the judgment rendered against it by the trial court.

All three judges of the Court of Appeals concurred in reversing the judgment of the trial court, two of the judges reversing and remanding for error and "irregularity in the proceedings of the Court in giving instructions to the jury in the absence of and without notice to the parties or their counsel after the jurors had retired to deliberate." The third member of the court, while failing to find any irregularity in such proceeding, concurred in the reversal "upon the ground that the evidence contained in the record is not sufficient to justify a recovery against the Cleveland Railway Company."

After such reversal and remand plaintiff prosecuted error to this court, and the railway company filed its cross-petition in error here alleging that final judgment should have been entered in its favor in the Court of Appeals, and that it was entitled to such judgment when its motions for a directed verdict were not sustained by the trial court. Hrovat then filed his motion in this court asking that the cross-petition in error be dismissed for the reason that it had not been filed within seventy days from the time of rendition of judgment.

The irregularity complained of arose in the following manner, while the jury were deliberating: The jury were not conducted into the courtroom, but about five minutes before they returned their verdict the bailiff came to the judge with a written question from the jury in which they asked: "Shall we return a separate or joint verdict against the defendants?" The judge sent the bailiff back to the jury with a verbal instruction to "tell them if their finding is against both defendants to return a joint verdict." This proceeding occurred in the absence of and without notice to the parties or their counsel.

Messrs. Locher, Green, Woods Lausche, for plaintiff in error.

Messrs. Squire, Sanders Dempsey and Mr. D.M. Marshman, for defendant in error.

JONES, J.

In an error proceeding where the entire record is before the reviewing court, and an unsuccessful litigant seeks final judgment in his favor upon the uncontroverted facts, is a cross-petition in error necessary for that purpose? This court has sanctioned the rule that a final judgment may be rendered in a higher court in favor of the defendant in error without the necessity of filing a cross-petition for that purpose. In the following cases it does not appear that any cross-petition in error was filed by the defendant in error in the appellate court, or in this court, in his attempt to procure final judgment: Minnear v. Holloway, 56 Ohio St. 148, 46 N.E. 636; B. O. Rd. Co. v. McClellan, Admx., 69 Ohio St. 142, 68 N.E. 816; Riley v. McNicol, 109 Ohio St. 29, 141 N.E. 832; Buell, Admx., v. N.Y. Cent. Rd. Co., 114 Ohio St. 40, 150 N.E. 422.

We have often held that a motion for a directed verdict in his favor, made by a litigant, basing his right to judgment upon the admitted or uncontroverted facts, presents a question of law purely. This legal doctrine has been applied and enforced where there is a failure of proof upon the part of him having the burden, or where the pleadings of a party, supplemented by the opening statement of counsel, are such as to require judgment against him; and it has more often been applied in cases where a litigant is entitled to judgment upon the essential facts which are not in dispute. And where the entire record, including the bill of exceptions, is before a reviewing court, and a motion for a directed verdict has been made and overruled, it becomes the province of such court to determine the legal question whether the mover was entitled to judgment on such undisputed facts; for such purpose no cross-petition in error need be filed either in the Court of Appeals or in this court. The motion to dismiss the cross-petition in error is denied.

In this court the defendant in error defends the reversal by the Court of Appeals, but insists that its motions for a directed verdict should have been sustained, and that the lower courts erred in not rendering final judgment in its favor. On the first feature its counsel contend that there was prejudicial error committed by the trial court in sending a verbal message by the bailiff to the jury, telling them what the form of the verdict should be and advising them that "if their finding is against both defendants to return a joint verdict."

The controlling statute, Section 11452, General Code, reads as follows: "After the jurors retire to deliberate, if they disagree as to the testimony, or desire to be further informed on the law of the case, they may request the officer in charge to conduct them to the court, which shall give the information sought upon matters of law, and also, in the presence of or after notice to the parties or their counsel, may state its recollection of the testimony upon a disputed point."

Under the foregoing section it is evident that, after the jury has retired to deliberate, further instructions on the law of the case or the court's statement of its recollection of the testimony upon a disputed point must be made "in the presence of or after notice to the parties or their counsel." Those provisions are mandatory. This court decided that it was error for the trial court to give additional instructions to the jury upon points of law in the absence of and without notice to counsel. Krieger's Cleaners Dyers, Inc., v. Benner, 123 Ohio St. 482, 175 N.E. 857. We are of the opinion that the request of the jury concerning the form of their verdict pertained to matters on points of law, a phrase contained in the foregoing section. It is conceivable that where there are many parties, having diverse or antagonistic interests, the form of the verdict may be important and the court's charge in respect thereto may be of great interest to counsel. The forms of verdict are generally, and were in this case, alluded to in the court's charge; its written charges are required to be taken by the jurors in their retirement. Section 11447, General Code. We are of the opinion that the instructions relating to the form of verdict for or against parties litigant, given to the jurors at their request, were instructions governing their finding made pursuant to the charge given them in open court; and that the information given them by the court in respect to their verdict should have been given in the presence of or after notice to the parties or their counsel. The jury sent to the court a written request for information respecting the form of their verdict. The court responded by giving to the bailiff a verbal message as to what its form should be. Sending verbal messages of such character opens the door to possibilities of grave danger to litigants. The record does not disclose what, in fact, the bailiff told the jury. But whatever he told them, the procedure followed would enable an unscrupulous bailiff to camouflage the message; or, if he were scrupulously conscientious, there might arise a possibility that his recollection would be inaccurate and the message not correctly delivered. Upon such an important feature, the orderly procedure requires that the contact between the court and jury should be immediate.

Did the trial court err in overruling the railway company's motions for a directed verdict? This question involves a consideration of the evidence, and we will refer to its salient features as briefly as we can. On Sunday, May 28, 1928, about 8:30 a. m., the plaintiff Hrovat and four other young men met at plaintiff's home on East Eighty-Second street, Cleveland, Ohio, for the purpose of going to Barberton to play baseball. Hrovat telephoned the cab company for a taxicab, and he and his companions went to Union avenue where they expected to get into the conveyance. In order to get a proper picture of the accident and its cause, Union avenue should be particularly described. This avenue is a thoroughfare running east and west, having two street car tracks located near its center, one for west-bound and the other for eastbound cars. On either side of these tracks there is a vehicular roadway about eleven feet in width from curb to track. When the young men reached Union avenue they observed a cab coming towards them from the east, and on the north side of the avenue.

In the disposition of this phase of the case we shall allude only to the testimony adduced by the plaintiff, given by Hrovat himself and his three companions, viz., Klum, Fortuna and Cvitko. Their testimony is substantially alike. They testified that when the cab was hailed it was on the north side of the street and going west; that after being hailed it turned directly south to the point where the young men were standing. After making the turn it stopped at the south curb, facing west and on the wrong side of the avenue, the passengers intending to travel east; after the passengers entered, the cab turned north and stopped at the north curb, again on the wrong side of the avenue, and waited a few minutes for west-bound traffic to pass; and it was at this juncture that the unusual action of the taxicab driver took place, which resulted in the collision of his cab with a west-bound street car. Finding himself at the north curb the taxi driver backed his car to the south curb. Then intending to go east, the driver, in making a right turn, again drove his cab north of and beyond the center of the street and on the west-bound track. Just at this time an east-bound car, coming from behind, overtook the cab, bringing about a situation where both street car and cab were traveling side by side in an easterly direction, the cab on the wrong side of the street. There is some variance as to how far they so traveled, but one witness for the plaintiff gives the distance as 280 feet and another puts it at from 300 to 400 feet. Finding himself in this predicament, on the wrong side of the street, the taxi driver in attempting to resume his own side of the avenue, endeavored to pass either in front or the rear of the street car; and while doing so his cab collided with a west-bound street car. The conduct of the taxi driver, both preceding and up to the time of the collision, was unusual and extremely negligent. Three times he had been on the wrong side of the avenue, and his conduct in driving on the west track alongside the east-bound street car for such a distance was also negligent. Any man of ordinary prudence would have permitted the east-bound street car to pass so that he could have resumed the south or proper side of the street. He had ample opportunity to do this. We are unable to find any negligence on the part of the railway company, and are of the opinion, from the undisputed facts thus detailed, that the unusual and extraordinary conduct of the taxi driver was the sole cause of the accident and was the proximate cause of the plaintiff's injury. But assuming that the operation of the street cars of the railway company created the situation and conditions which, concurrently with the later intervening negligence of the taxicab company, caused plaintiff's injuries, such acts of the railway company became the remote and not the proximate cause of the accident. The agents of the railway company could not have reasonably anticipated the extraordinary, if not illegal, conduct of the taxicab driver. Such being the case, it is a well-settled rule of law that such intervening negligence of the cab driver became the proximate cause.

The trial court should have sustained the motions of the defendant in error for a directed verdict, and in refusing so to do that court erred. While the Court of Appeals did not err in reversing the judgment of the trial court for the reasons assigned in its journal entry, it did err in failing to render final judgment in favor of the defendant in error.

Proceeding to render the judgment which the lower courts should have rendered, it is the judgment of this court that the judgment of the Court of Appeals be reversed in part and that final judgment be entered in favor of the defendant in error.

Judgment reversed in part and final judgment rendered.

MARSHALL, C.J., MATTHIAS, DAY, ALLEN, KINKADE and STEPHENSON, JJ., concur.