Opinion
No. A-87552.
1947-03-25
WARNER v. STRIEDER et al.
Leo A. Burke, of Cincinnati, for plaintiff.
Action by Sotorious D. Warner against William Strieder and James McLaughlin to recover for injuries sustained in automobile collision. Defendant McLaughlin was dismissed on his and plaintiff's motion.
Judgment for William Strieder.Leo A. Burke, of Cincinnati, for plaintiff.
WOESTE, Judge.
The within action is one for damages suffered by plaintiff as the result of an automobile collision which occurred February 16, 1944, at the intersection of Reading Road and Losantiville Road in the City of Cincinnati.
The action, as originally filed, named William Strieder and James McLaughlin; and averred that the combined and concurrent negligence of these defendants as the proximate cause of the injuries. The suit was filed April 11, 1944.
The defendant, McLaughlin, being a patrolman of the police department of the City of Cincinnati, was represented by the City Solicitor, who filed an answer denying liability.
The defendant Strieder, on November 17, 1945, through his attorney, William F. Hopkins, apprised the court by affidavit, that he was in the military service of the United States. Later, on June 12, 1944, he filed an answer admitting the collision but denying the other allegations of the petition.
Upon the day of trial counsel for the defendant Strieder, in open court, stated that his client apparently had lost interest in the case and therefore declined to request a further continuance. The case proceeded as upon default as to Strieder.
Counsel for the plaintiff and the defendant McLaughlin joined in a motion to dismiss the defendant McLaughlin upon authority of Section 3714-1 of the General Code of Ohio. The motion was granted. The testimony then proceeded as to the defendant Strieder's liability. The court viewed the premises. A jury trial was waived.
Finding of Fact.
Reading Road is a main thoroughfare in the City of Cincinnati, which follows a course in a general north and south direction. At a point, beyond the congested district, but where residential development is dense, it is intersected by several east and west main thoroughfares each controlled by standard traffic signal lights. After midnight the green and red lights are discontinued but the amber light operates continuously at short regular intervals so as to accomplish a flashing effect. The intersection involved was so controlled.
Losantiville Road is one of the main intersecting east and west thoroughfares in the suburb of Roselawn and within the corporate limits of the City of Cincinnati. The topography of the approaches and of the intersection is not of uniform elevation. At a point some two to three hundred feet south of the intersection, Reading Road reaches a crest, thus obscuring visibility of any part of approaching vehicles from the south for perhaps four hundred feet. From the point of that crest Reading Road descends to the elevation of the intersection of Losantiville Road. The drop from the crest to the level of the intersection is several feet. The approach from the north is a slight descent toward the intersection, but not enough to obscure visibility.
The elevation of Losantiville Road, east of the intersection, is uneven in that it is slightly lower than the intersection and quite a bit lower than the crest prevailing south of the intersection on Reading Road. This difference in elevations obscures the view of drivers entering the intersection from the east of vehicles approaching from the south to a very perceptible degree.
The semaphore signals are erected sufficiently high to be visible for hundreds of feet either way.
On the morning of February 16, 1944, at about three o'clock A.M., Patrolman McLaughlin, the former co-defendant herein, was seated in his police car, in a stationary position, at Tennessee Avenue, another main intersection about two miles south of Losantiville Road. An automobile, later identified as the defendant Strieder's, and driven by him, moved northwardly on Reading Road at a high rate of speed. The officer gave chase. The police car was equipped with a calibrated speedometer. When the speedometer of the police car, after pacing the vehicle of the defendant, revealed a speed of seventy-one miles per hour, the officer locked the speedometer and turned on his red (emergency) light. The latter incidents occurred south of the intersection of Losantiville Road, perhaps three quarters of a mile. The speed of the defendant increased as did not of the police officer and at the intersection involved it was somewhat in excess of seventy-one miles per hour. When these fast moving vehicles reached the immediate approach to the intersection involved and while moving northwardly over the crest heretofore described, the cars had reached a relative position so that the officer was maneuvering the police car to overtake and pass the pursued vehicle and was in a position where the front right hub cap of the police car was opposite the left rear hub cap of defendant's car.
As these events transpired the plaintiff, who was employed at the Consumer's Materials Company located on Losantiville Road, east of Reading Road, and who completed his tour of duty about three o'clock A.M., and while enroute to his home, was approaching the intersection involved from the east. He moved slowly into the intersection with the intention of making a left hand turn southwardly on Reading Road.
The testimony of the plaintiff, as to his observations as to the presence, and course of travel or other facts or circumstances immediately prior to the impact, is so vague and contradictory that it can fairly be concluded that he did not clearly witness these immediate incidents preceding the impact. This lack of knowledge can easily be understood and is directly ascribable to the presence of a combination of circumstances. The following is a cogent part of his testimony as to the immediate incidents as given by the plaintiff:
‘Q. Tell his Honor what happened then. A. I got well out into Reading Road, I should say far enough for the speeding car to just miss me. All I knew after that there was a crash and I didn't see the policeman's car at no time. It just seemed to happen. I seen that speeder, he almost took my breath. Just at that time there was a crash and I didn't know anything for a little while.
‘By the Court: Did the car you saw coming go behind you and miss you?
‘Q. The car, Mr. Warner, the car that you referred to, the car that missed you you said a speeder's car? A. Yes.
‘Q. Did it pass in front or in the rear of your car? A. It was in front.
‘Q. No, the car that missed you. A. Yes.
‘Q. The speeder's car, did you get across in front of its path? A. Oh, yes, yes.
‘Q. And the police officer's car then? A. Started around. I didn't see the police officer's car. I seen an object, just an object; as the speeder passed there was just an object, it was all so quick, so sudden I couldn't
‘Q. Mr. Warner, maybe you don't understand me. There were two automobiles evidently coming from the left up Reading Road. A. Yes.
‘Q. One was the speeder's car, we will say, and the second was the police officer's car? A. That is right.
‘By Mr. Grause: He said he didn't see that.
‘Q. I know. He said until it hit him. The car you saw did not collide with your automobile, did it? A. No.
‘Q. Now, did it pass in back of your car? A. Yes.
‘Q. Yes. As your car was going out into Reading Road did the speeder's car pass in front of your car or in back of your car? A. It passed in front of my car.
‘Q. Well-A. It passed at the side of the car.
‘Q. You were at an angle, of course, it is true? I don't know how to bring it out. A. The speeding car was in front of me because I was turning to the left; to the left side and in front of me. * * *’
He was moving slowly into the intersection, and because of the low elevation of Losantiville Road, east of Reading Road and the crest in Reading Road, south of Losantiville Road, his visibility of fast moving vehicles moving north on Reading Road was practically cut off.
A witness, George Richardson, the driver of a vehicle which had stopped behind the plaintiff, saw the red light of the police car moving toward the intersection. His pertinent testimony is as follows:
‘Q. Was this car that was in the accident, plaintiff's car, in advance of you coming out of Losantiville the same as you were? A. Yes, sir, he was in front of my car.
‘Q. And where in reference to the intersection, that is, that portion bounded by the four corners of the curb line, where was he in reference to that area? A. Well, he had stopped at the intersection and then pulled out into the intersection.
‘Q. At what time, in reference to the location of the oncoming police car? A. Well, the police car and this other car was pretty far away, and there is a slight rise, I would say they just about hit the top of the rise where we could see them and he had already started nosing out into the intersection. I think that the speed of the cars was so great he could not get away from them; he wasn't going that fast; he couldn't.
‘Q. He had entered the intersection when these cars came over the rise or had they already proceeded to a point north of that rise when he moved out into the intersection. A. Well, I don't know. I was watching the police car. I don't know exactly when he started because I was watching toward my left. I saw this light, this red light flashing on the fender of the police car and well it just occurred to me that the police officer was after a speeder and of course I just sat tight. I really never watched the car in front of me because I just sat with my foot on the brakes and watched these two cars coming and the police car was trying to get to pass this one car but who was in it or anything like that I don't know, so I really couldn't say when the car in front of me started out into the intersection in relation to the position of the two cars coming out Reading Road.
‘Q. Did the car in advance then stop too or did it go on? A. He stopped on the
‘Mr. Burke: I think he misunderstands you.
‘Q. These two cars moving northwardly on Reading Road, did the car in advance keep on going or did they both stop? Did the policeman finally accomplish his purpose to arrest the motion of the other car? A. Well, this car that he was chasing stopped north of Losantiville going out Reading Road.
‘Q. I see. And that was, of course, after the accident? A. Yes, sir, after the accident.
‘Q. In what portion of the intersection did it go in reference to the center of the street? Was it closer to the middle of the road or to the right side of the road, if you know? A. I would say it was more to the right side of the road, sir.
‘By Mr. Burke:
‘Q. However, the first car, the first speeding car passed to the rear of the plaintiff's car that pulled out of Losantiville? A. That is right.
‘Q. And still on the pavement of Reading Road? A. Yes, sir.
‘Q. And so you follow me, your Honor? In other words
‘By the Court: The plaintiff's car had already gone out into the center?
‘By Mr. Burke: Oh, yes.
‘By the Court: And the speeding car
‘By Mr. Burke: Passed to his rear, isn't that right, Mr. Richardson? A. Yes, sir.
‘Q. Passed to the rear of what we will call the plaintiff's car, the car ahead of you, and the plaintiff's car was struck by the police officer's car at some point between that point and perhaps the center of Reading Road? A. Yes, sir.
‘Q. And as you were following this plaintiff's car, Mr. Richardson, as I understand it, you were some distance behind as you were both proceeding toward Reading Road? A. That is right.
‘Q. And he came to a stop and you naturally drew closer, is that correct? A. Yes, sir.
‘Q. And it was as you were coming toward Reading Road, approaching Reading Road, that you observed the police officer and the car ahead of him? A. That was after I came to a stop.
‘Q. Oh, it was? A. Yes, sir, after I came to a stop there.
‘By the Court: Q. You feel you do not remember with sufficient clarity just what took place in front of you with reference to the other car? A. No, sir, I do not.
‘Q. But you are sure that the first speeding car went behind the gentleman in front of you, the driver in front of you? A. Yes, sir.
‘Q. That is all.’
So much for the events which transpired from the point of view of those entering the intersection from Losantiville Road.
The events immediately preceding the accident from the point of view of the vehicles moving north on Reading Road is best obtained from the direct testimony of police officer McLaughlin, as follows:
‘Q. Will you tell His Honor what occurred and what you did at that time, what you noticed? A. I saw a black car speeding north on Reading Road. I gave chase to it, followed it out Reading Road past Northhampton. I clocked the car at 71 miles an hour. I locked my speedometer and turned on my red light.
‘By the Court: What were you in, a motorcycle? A. No, sir, a speed car, and the car ahead of me, when I turned on my lights, speeded up and I increased my speed and I was in a position where my right front fender is approximately even with the left rear fender of this car I was chasing, we approached Losantiville Avenue and this other car veered suddenly to the right. Another car appeared in front of me coming from my right. This car had to veer to the right and he just missed the car that pulled out of Losantiville but passed him to the rear of him.
‘By the Court: He passed to the rear of the car coming out? A. Yes, sir, and there wasn't any room for me to pass and I crashed into this car.
‘Q. Was your siren sounding before you reached Losantiville Road? A. No, just my red light was shining.
‘Q. And at about what speed were the two cars traveling just before the impact? A. I had my speedometer locked at 71 miles an hour. I couldn't say exactly how fast we were going because it was locked, but it was faster than that. * * *
‘Q. Was your car equipped with a calibrated speedometer? A. It was.
‘Q. Did you have your lights on, burning? A. Yes, sir.
‘Q. And then you had the red light and your headlight both on? A. Yes, sir.
‘Q. I think you heard the testimony about the flashing lights at Losantiville Avenue and Reading Road? A. Yes, sir, they were flashing. * * *’
The credible testimony therefore crystallizes a set of facts, and this court so finds, that the police vehicle had partially overtaken the defendant's vehicle immediately before entering the intersection. The defendant seeing the plaintiff's vehicle in the intersection drove to the rear of it and proceeded northwardly through the intersection, at no time touching plaintiff's vehicle. The officer's view of plaintiff's vehicle was obscured because of his close proximity to defendant's vehicle. While defendant could see the plaintiff in the intersection the officer could not. There was no opportunity for the officer to avoid the collision at that late moment nor, perhaps, would it have been prudent to make the attempt. It was the officer's vehicle which collided with the plaintiff and not the defendant herein. There is no evidence, either direct or circumstantial, which would indicate that the defendant was aware of the fact that the officer was pursuing him, or that the officer was in the immediate proximity of him.
The defendant violated the speed law and was guilty of negligence therein. Defendant's conduct was not the proximate cause of plaintiff's injuries.
Query: Is a speeder, who is being pursued by a traffic officer, liable to a third person who is struck by the officer while in pursuit, when no act of the speeder other than his fast driving, induced the officer to drive his car in a manner so as to strike and injure such third person?
Conclusions.
The original co-defendant, James McLaughlin, the city patrolman, who pursued the defendant Strieder, was dismissed from this case on authority Sec. 3714-1, General Code of Ohio:
‘Every municipal corporation shall be liable in damages for injury or loss to persons or property, and for death by wrongful act caused by the negligence of its officers, agents, or servants while engaged in the operation of any vehicles upon the public highways of this state under the same rules and subject to the same limitations as apply to private corporations for profit but only when such officer, agent or servant is engaged upon the business of the municipal corporation.
‘Provided, however, that the defense that the officer, agent, or servant of the municipality was engaged in performing a governmental function, shall be a full defense as to the negligence of members of the police department engaged in police duties, and as to the negligence of members of the fire department while engaged in duty at a fire or while proceeding toward a place where a fire is in progress or is believed to be in progress or in answering any other emergency alarm. And provided, further, that a fireman shall not be personally liable for damages for injury or loss to persons or property and for death caused while engaged in the operation of a motor vehicle in the performance of a governmental function and provided further that a policeman shall not be personally liable for damages for injury or loss to persons or property and for death caused while engaged in the operation of a motor vehicle while responding to an emergency call.’
On the test of liability under the facts herein found, there is no recourse which may be had to precedent, for neither counsel nor the Court has been able to find an authority in point in the state or national digests. This fact, in itself, suggests the novelty of plaintiff's theory of liability. The accepted tests of liability do not seem to be applicable. The plaintiff relies upon a new and novel principle of law to support his case.
It is his theory that one who drives at a speed in violation of law is liable to a third person who is struck by a pursuing officer, under circumstances wherein the manner of driving by the speeder in no way superinduced the slightest variation in the conduct of the officer in the operation of his car, other than such ordinary conduct as the officer would adopt in the regular course of pursuit and apprehension of any such person moving at a high and unlawful rate of speed in a straight course.
This court cannot espouse this theory of liability. The misdemeanant defendant did nothing to precipitate the collision which resulted, other than to induce, the voluntary act of the officer to attempt to effect his arrest. The officer at all times, while pursuing the defendant, had his car under complete control and notwithstanding the presence of the flashing amber light which was clearly visible at the Losantiville intersection, he chose this point to overtake the defendant. In doing so he was fully aware of the fact that part of the terrain ahead would not be visible because of the fact that the defendant's car partially obscured his view, and further, the distinct crest in the road made a hub to hub position of the two cars highly dangerous.
Because of the lack of evidence as to knowledge of the defendant of the officer's presence, we are unable to recognize a situation suggesting a race or an attempt on the part of the defendant to flee. If the latter were true perhaps a situation suggesting liability may ensue. The speed of the defendant did not force the officer to drive into the plaintiff. The speed of the officer's car was under his exclusive control, as was the juxtaposition of the two cars while approaching the intersection. The situation in which the officer found himself was the result of his own deliberate conduct and choice and no act, upon the part of the defendant, induced or caused the officer to choose the position which resulted in the impact with the plaintiff.
29 O.Jur., page 481:
‘While, as has been said, no exact rule for determining when causes are proximate and when remote has yet been formulated, the general principles which govern the determination of this question appear to be well settled. Thus, it is firmly established that to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence alleged, the general rule being that a defendant is not answerable for anything beyond the natural, ordinary, and reasonable consequence of his conduct.’
The damage to the plaintiff in this instance was not the natural and probable consequence of the unlawful high speed of the defendant, but rather was the consequence of factors entirely beyond his control, foreseeability or reasonably to be anticipated.
The facts in this case do not come within those present in those cases where liability has heretofore been imposed even though there was no physical contact between the defendant's car and that of the plaintiff or his property.
In Gedeon, Adm'r, v. East Ohio Gas Co., 128 Ohio St. 335, 190 N.E. 924, the Ohio Supreme Court held that the liability of the East Ohio Gas Company for the damages sustained by Dedeon in an accident with an automobile driven by one Ferenz was a question of fact for the jury as to the proximate cause. Ferenz had swerved to avoid hitting an employee of the Gas Company who had alighted from the left side of his parked car. They said the agency was established as Tesnow, the employee; was acting in the line of his employment; and his negligence in alighting from the left side of his parked car might be the proximate cause of the collision, although his parked car was not involved physically in the ensuing wreck.
‘The driver or owner of an automobile so negligently operated as to place others in a position where they are struck and injured by an automobile operated by a third person may be held liable therefor where it can be said that such negligence was the proximate cause of the resulting injuries.’ 5 Am.Jur. 693.
‘If the negligence of the operator of an automobile proximately operates to produce a damage, he is liable therefor, even though another concurring cause operates at the same time to bring about said damages; and in such case it is quite immaterial whether the concurring cause was or was not negligently put into operation.’ Judd v. Rudolph, 207 Iowa 113, 6th syl., 222 N.W. 416, 62 A.L.R. 1174.
The court, in this case ruled that it was proper to sumit the question to the jury although the car of the defendant was not a party in the collision. The plaintiff's intestate had been killed by the car of another person who had collided with intestate in avoiding a collision with defendant's automobile.
As a general rule where the driver of an automobile runs it at an excessive rate of speed, he is not liable for an injury to another, unless it was proximately caused by the excessive speed. But he may be held liable for an accident occurring through the negligence operation of his machine, although the immediate cause of the accident was the negligent act of a third party in the operation of his car, i. e., where a chain of events has been started, due to the negligence of the driver of an automobile, he may be held liable for all mishaps which are properly the proximate result of his unlawful conduct. Holmberg v. Villaume, 158 Minn. 442, 197 N.W. 849.
‘It is not material that defendant's car never came into physical contact with plaintiff or his car if it is once established that the defendant was negligent in such a manner that the driver of the other car was placed in a position of peril.’ 62 A.L.R. 1190.
In the case at bar, we are asked to impose liability, under conditions which assume proportions not heretofore included in the realm of law applying to negligence cases. To do so would, in effect, accomplish liability on the part of the driver of a motor vehicle for a collision between a pursuing officer and a third person at a time when the pursued driver had no knowledge of the presence of such pursuit. Indeed, such ruling would have implications of such breath of operation so as to result in palpable injustice to the driving public. Applying such a rule to other misdemeanants under similar operating facts, the consequences are manifold and again would be palpably unjust.
We therefore conclude in principle that:
A speeder, who is being pursued by a traffic officer is not liable to a third person who is struck by the officer while in pursuit, when no act of the speeder, other than his fast driving, induced the officer to drive his car in a manner so as to strike and injure such third person.
The defendant is not liable and judgment is so awarded.