Opinion
No. 32321
Decided June 6, 1951.
Negligence — Motor vehicles — Collision at street intersection controlled by traffic signal lights — Drivers entering intersection on green light — Duty to use ordinary care — Section 6307-13, General Code — Colliding vehicles both entered intersection on green light — Charge to jury on ordinary care not erroneous.
1. The provisions of Section 6307-13, General Code, relating to the control of traffic at intersections, that "all * * * traffic facing the [green] signal * * * may proceed straight through or turn right or left unless a sign at such place prohibits such turn" and that "such traffic shall yield the right of way to vehicles * * * lawfully within the intersection * * * at the time such signal is exhibited," require each driver entering an intersection on a green light to use ordinary care to avoid injury to others lawfully within such intersection.
2. In an action for damages resulting from a collision between the southbound automobile of plaintiff, which entered an intersection on a green light and was delayed by other traffic making turns in the intersection, and an eastbound automobile of the defendant who also entered such intersection on a green light, an instruction to the jury before argument, that "if you find that the defendant * * * exercised the same or similar care or caution as is ordinarily exercised by ordinarily prudent persons under the same or similar circumstances then your verdict must be for the defendant," does not constitute error prejudicial to the plaintiff.
APPEAL from the Court of Appeals for Cuyahoga county.
This cause originated in the Court of Common Pleas of Cuyahoga County. It is an action to recover damages for personal injuries suffered by the plaintiff in a collision between the automobile, in which plaintiff was riding, and an automobile driven by the defendant.
The collision occurred about 6 p.m. on May 13, 1947, at the intersection of East 100th street (a north and south thoroughfare) and Carnegie avenue (an east and west thoroughfare) in the city of Cleveland. Carnegie avenue is a street with six marked traffic lanes, each about eight feet in width. A traffic light was in operation about the center of the intersection, and at the time of the collision traffic on Carnegie avenue was moving eastward in the four southern lanes and westward in the two northern lanes, a situation due to the heavy traffic eastward at that time of day.
The automobile in which the plaintiff was riding was being driven south on East 100th street and, as claimed by plaintiff, when it arrived at Carnegie avenue the traffic light in the intersection was showing green for northbound and southbound traffic on East 100th street and red for eastbound and westbound traffic on Carnegie avenue. The driver of the automobile in which plaintiff was riding entered the intersection and, because another automobile was making a lefthand turn, the automobile in which plaintiff was riding came almost to a stop and, when the obstruction had cleared, proceeded south through the intersection, traveling from eight to ten miles per hour, and was almost through the intersection when the automobile was struck near the rear end by the automobile operated by the defendant, with resulting injuries to the plaintiff.
The automobile operated by the defendant had been moving eastward on Carnegie avenue in the first lane, or the lane next to the south curb. To its north were three other lanes in which traffic was moving in the same direction. The automobiles in these lanes of traffic had stopped for the red signal to eastbound traffic. There is evidence that at the time of the collision the defendant was proceeding on a green light. The driver of the automobile in which the plaintiff was riding admittedly could not see the traffic light after he had passed under it. The plaintiff in his petition charges the defendant with negligence as a matter of law in that he failed to yield the right of way to the automobile in which the plaintiff was riding and thereby violated the provisions of section 2402-10 of the traffic code of the city of Cleveland, which ordinance is in terms the same as Section 6307-13, General Code.
Issue was made by answer wherein it is alleged that at the time the defendant drove his automobile into the intersection the traffic light was green for traffic proceeding easterly along and over Carnegie avenue. He denies that he was negligent in any manner whatsoever and charges that the driver of the automobile in which the plaintiff was riding entered the intersection against the red light.
Upon trial of the issues the court, before argument, gave the jury the following special charge requested by the defendant:
"The court charges you as a matter of law that if you find that defendant, Mark Zettelmeyer, Jr., exercised the same or similar care or caution as is ordinarily exercised by ordinarily prudent persons under the same or similar circumstances, then your verdict must be for the defendant, Mark Zettelmeyer, Jr."
The jury returned a verdict for the defendant to which was added "not at fault."
Judgment entered on the verdict was affirmed by the Court of Appeals.
The cause is before this court following the allowance of a motion to certify the record of the Court of Appeals.
Messrs. Howell, Roberts Stapleton, for appellant.
Messrs. McNeal Barry, for appellee.
The single error of which plaintiff complains is the giving of the requested charge before argument. He contends that the violation of Section 6307-13, General Code, constituted negligence per se for the reason that the defendant was required by such statute to yield the right of way to the vehicle in which the plaintiff was riding. The pertinent portion of Section 6307-13, General Code, is as follows:
"Whenever traffic is controlled by traffic-control signals exhibiting the words `go,' `caution,' or `stop' or exhibiting different colored lights successively one at a time, or with arrows, the following colors only shall be used and said terms and lights shall indicate and apply to operators of vehicles, streetcars and trackless trolleys and pedestrians as follows:
"(a) Green alone or `go.'
"1. Pedestrians facing the signal may proceed across the roadway within any marked or unmarked crosswalk.
"2. All other traffic facing the signal except as provided under Sections 35 and 56 (G.C. Sections 6307-35 and 6307-56) may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. But such traffic shall yield the right of way to vehicles, streetcars and trackless trolleys lawfully within the intersection and to pedestrians lawfully within a crosswalk at the time such signal is exhibited.
"* * *
"2. All other traffic facing the signal shall stop and shall remain standing until `green' or `go' is shown alone.
"(d) Red alone or `stop.'
"1. No pedestrians facing such signal shall enter the roadway.
"2. All other traffic facing the signal shall stop before entering the intersection and shall remain standing until authorized to proceed by a traffic-control device."
This case is presented upon a partial bill of exceptions which plaintiff deemed sufficient to show the claimed error. He relies upon the right of the driver of the vehicle in which he was riding to proceed through the intersection which he had entered upon a green light although there was no evidence to show that the defendant was not also at the time of the collision proceeding through the intersection in a different direction upon a green light.
This court has many times considered the extent of such preferential rights of way. "Right of way" as that term was used in Section 6310-28 (now 6307-2), General Code, was construed by this court in the case of Morris v. Bloomgren, 127 Ohio St. 147, 187 N.E. 2, 89 A.L.R., 831. After construing the statute as conferring an absolute right of way upon the vehicle approaching from the right qualified only by the requirement that in proceeding uninterruptedly it must proceed in a lawful manner, this court held in the syllabus that the driver of such automobile having a preferential right of way still has a duty to use ordinary care. Paragraph five of the syllabus of that case reads as follows:
"The driver of a vehicle lawfully approaching from the right has the right to assume that the driver of the vehicle approaching from the left will obey the law by yielding the right of way. If however the former, just as he is approaching or entering the intersection, discovers that the latter is not yielding the right of way and has thereby placed himself in a perilous situation, it becomes the duty of the former to use ordinary care not to injure the latter after becoming aware of his perilous situation."
This court has also placed upon pedestrians having a preferential right of way at intersections a duty to use ordinary care for their own safety. See Cleveland Ry. Co. v. Goldman, a Minor, 122 Ohio St. 73, 170 N.E. 641; Martinovich, a Minor, v. E.R. Jones Co., 135 Ohio St. 137, 19 N.E.2d 952; Will v. McCoy, 135 Ohio St. 241, 20 N.E.2d 371; Juergens v. Bell Distributing, Inc., 135 Ohio St. 335, 21 N.E.2d 90; and Grass v. Ake, Exr., 154 Ohio St. 84, 93 N.E.2d 590.
The case of Welch, a Minor, v. Canton City Lines, Inc., 142 Ohio St. 166, 50 N.E.2d 343, presented a situation quite similar to that involved in the instant case. The bus in which the plaintiff was riding having entered the intersection on a green light was struck by a truck driven by the defendant which approached and entered the intersection from the right of the bus. The traffic light facing the truck was out, hence the resulting collision. A judgment on a verdict for the plaintiff, based on the negligence of the defendant, was reversed because of a charge of the court that the driver of the bus in which the plaintiff was riding had the right of way and that the defendant was unlawfully within the intersection. It is stated in the syllabus of that case:
"Where a motor vehicle traveling north in a lawful manner on a main thoroughfare enters a street intersection prior to another motor vehicle which is traveling east on an intersecting street and enters such intersection upon a green or go light, both vehicles are lawfully in such intersection; the drivers of such vehicles have equal rights and each is required to exercise ordinary care to avoid a collision."
From the facts stated in the instant case the automobile in which the plaintiff was riding and the defendant's automobile were both lawfully within the intersection and the driver of each therefore had the duty to use ordinary care. It follows that the charge which stated that no recovery may be had from the defendant, if the jury found he was exercising ordinary care, was not erroneous.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MIDDLETON, TAFT and HART, JJ., concur.