Opinion
No. 35682
Decided April 22, 1959.
Motor vehicles — Guest statute — Section 4515.02, Revised Code — "Wilful misconduct" — Driving at night without lights on vehicle — Evidence insufficient to establish wilful misconduct.
APPEAL from the Court of Appeals for Huron County.
This is an action to recover damages for personal injuries sustained by plaintiff while riding as a guest in a motor truck operated by defendant. On the evening of December 16, 1954, plaintiff and defendant, with ten or twelve other high school students, members of the Y-Teens and Hi-Y, were singing Christmas carols in and around the city of Norwalk.
Previous to the accident here involved, the students had stopped at the local hospital and the county children's home. The project was solely a charitable one, without payment or benefit of any kind to defendant who was driving her father's pickup truck in taking the group to the various places.
To reach the home for the aged, their next stop, it was necessary to leave the main highway and proceed down a driveway or lane wide enough for one lane of traffic only. There were trees and bushes on both sides of this lane and telephone poles on one side between the trees and the roadway, some of which poles were located close to the improved surface of the lane which was very poorly lighted and for the most part substantially dark. At about eight o'clock in the evening the truck had proceeded approximately half way down this lane, at a speed of between 15 and 20 miles an hour, when the lights on the truck suddenly went out and defendant stopped the truck. Lights of the home for the aged could be seen straight ahead from the point where the truck stopped, and there is no evidence that the lane was winding, hilly or slippery. Defendant thought it would be safer to park the truck under a light and asked the guests whether she should leave the truck there in the dark lane or proceed approximately 200 feet to a pole with a light on it, where she could park the truck with a light shining on it. This pole with the light was visible from where they had stopped. They agreed generally that she should go on. No one objected.
Defendant then proceeded a short distance without lights at a speed of between five and ten miles an hour when an upright steel post or brace on the outer edge of the truck bed sideswiped or grazed a telephone pole. Defendant stopped the truck at once, got out and asked whether anyone was hurt. Plaintiff had been holding to this upright post or brace and had her hand on the outside of it at the time of the impact with the pole and suffered an injury to her hand, for which damages are sought in this action.
Plaintiff, being a "guest," within the meaning of the guest statute, Section 4515.02, Revised Code, in the motor vehicle of defendant at the time of the accident, bases her right to recover on the alleged wilful misconduct of defendant in the operation of the truck "in utter disregard of the safety of those occupying said truck."
The trial resulted in a verdict for plaintiff. Defendant's motion for judgment notwithstanding the verdict was overruled, and judgment was entered for plaintiff.
The judgment was affirmed by the Court of Appeals, with one judge dissenting.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Freeman Freeman, for appellee.
Mr. Raymond N. Watts and Messrs. Flynn, Py Kruse, for appellant.
The question presented is whether the driving of the truck by defendant in the dark without lights for a short distance at a speed of between five and ten miles an hour, under the circumstances above described, was wilful misconduct within the meaning of that term as used in the guest statute.
The term, "wilful misconduct," as construed in Tighe, a Minor, v. Diamond, 149 Ohio St. 520, 80 N.E.2d 122, "implies an intention or purpose to do wrong, an intentional deviation from clear duty or from a definite rule of conduct, and not a mere error of judgment." Defendant's conduct in bringing the truck to a stop immediately after the lights went out, in considering which of two courses of action to pursue, in consulting with her guests and, after receiving their opinions and desires to proceed, in proceeding toward a place of greater safety in the manner she did falls far short of wilful misconduct.
A careful review of all the evidence fails to disclose any substantial evidence tending to prove wilful misconduct on the part of defendant, and the trial court was in error in overruling defendant's motion for judgment notwithstanding the verdict. Helleren, Admx., v. Dixon, 152 Ohio St. 40, 86 N.E.2d 777.
The judgment is reversed and final judgment is rendered for defendant.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BELL and HERBERT, JJ., concur.