Summary
In Brinkmoeller, we offered two instructions to trial courts considering these motions: (1) exercise great caution in sustaining the motion and (2) liberally construe the opening statement in favor of the party against whom the motion is made.
Summary of this case from Parrish v. JonesOpinion
No. 74-274
Decided March 26, 1975.
Negligence — Taxicab permitting passenger to alight in unsafe place — Directed verdict for defendant at close of plaintiff's opening statement error, when.
A trial court should exercise great caution in sustaining a motion for a directed verdict on the opening statement of counsel; it must be clear that all the facts expected to be proved, and those that have been stated, do not constitute a cause of action or a defense, and the statement must be liberally construed in favor of the party against whom the motion has been made.
APPEAL from the Court of Appeals for Hamilton County.
This lawsuit was instituted in the Court of Common Pleas of Hamilton County by plaintiffs, Carl A. Brinkmoeller, individually, and as guardian of the person and estate of his wife, Kathleen C. Brinkmoeller, an incompetent, for damages for personal injuries sustained by Mrs. Brinkmoeller when she was struck by an automobile after temporarily alighting from a taxicab, owned and operated by Taxicabs of Cincinnati, Inc. (Taxicabs), which she hired as a passenger for carriage and which relationship existed at the time the accident occurred.
The question of any liability of the operator of the vehicle which struck Mrs. Brinkmoeller is not a part of this proceeding.
Taxicabs is the only defendant herein, and its motion to separately try the issue of liability was granted by the trial court. We are concerned with that trial in which the basic negligence asserted in counsel for plaintiffs' opening statement, as first made and then amended, was that Taxicabs did not let Mrs. Brinkmoeller off at a safe place and thereby proximately caused her injuries. Plaintiffs' attorney declared therein that the evidence would show that Mrs. Brinkmoeller was under the influence of alcohol and was in a highly emotional state when she hired the taxicab; that the defendant's driver was aware of the signs of intoxication and her emotional state; that, when he delivered her to a location to which she had directed him, the driver knew that she had to cross the street; that she was staggering from intoxication at the time the driver let her out of the cab; that she crossed the street and walked on the traffic side of parked cars that blocked her access to the sidewalk to get to Pilot Inn where the driver knew she was going; that she "may have staggered backwards" into the path of the car which struck her; that the driver did not "warn her or take any steps that might have prevented the accident"; that the relationship between Mrs. Brinkmoeller and the taxicab company at the time of the accident was that of carrier for hire and passenger because the driver was to turn around, wait for and pick her up again in front of Pilot Inn, when she had completed her mission therein, and take her somewhere else; that the defendant admitted in its answer that Mrs. Brinkmoeller proceeded ultimately across Edwards Road to the west side and at that point she either stepped or fell backwards into the southbound lane of travel where she was struck; that the driver failed to warn Mrs. Brinkmoeller of the approach of traffic traveling south on Edwards Road before the accident occurred; and that the driver was negligent in failing to stop the taxicab on the west side of Edwards Road in front of Pilot Inn for her to alight.
At the conclusion of the opening statement of counsel for plaintiffs, defendant made a motion for a directed verdict. The trial court granted this motion for the stated reason that:
"* * * [T]here was no negligence on the part of the driver-agent of Taxicabs of Cincinnati, Incorporated. There was no violation of any duty on the part of the driver, the agent, for the defendant Taxicabs of Cincinnati. And for the record, it is the court's feeling and belief and ruling that there was negligence as a matter of law on the part of * * * [Mrs. Brinkmoeller] herein which contributed proximately to the accident."
The Court of Appeals reversed the judgment of the trial court, and remanded the cause for further proceedings according to law.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Wilson, Curry, Stridsberg Rimedio and Mr. Roger C. Stridsberg, for appellees.
Messrs. Barbour, Kimpel Allen and Mr. Edward K. Halaby, for appellant.
We affirm the judgment of the Court of Appeals.
In reaching our decision we do not hold, and have no intention of implying, that the duty of a taxicab driver to an intoxicated passenger includes acting as a nurse, guardian, attendant or groom to such passenger. Rather, the thrust of our holding is that defendant's motion for a directed verdict, made after counsel for plaintiffs' opening statement in this case, should have been overruled, based upon the totality of facts asserted in the opening statement plus the admissions in defendant's answer, and plaintiffs permitted to present evidence.
The trial court ruled that there was no negligence on the part of the driver of the taxicab.
However, operators of taxicabs for hire are common carriers. Korner v. Cosgrove (1923), 108 Ohio St. 484.
A common carrier owes the duty to its passenger to exercise the highest degree of care consistent with the practical operation of the taxicab. That duty includes affording the passenger a reasonably safe place to alight and extends to conditions within its control, and does not extend to vehicles operating in streets over which it has no control. See Baier v. Cleveland Ry. Co. (1937), 132 Ohio St. 388.
In view of this legal duty of the carrier, it appears to us that the trial court would have been in a much better position, after plaintiffs' case was completed, to examine the evidence for negligence of defendant, if any, and then to pass upon a motion for a directed verdict, if made at that time, in the light of the applicable law.
In passing on the motion in question, the trial court ruled further that Mrs. Brinkmoeller was negligent as a matter of law, which negligence contributed proximately to the accident.
Contributory negligence, when set up as a defense to an action for injuries alleged to have been caused by the defendant's negligence, means any want of ordinary care on the part of the person injured, which combined and concurred with the defendant's negligence and contributed to the injury as a proximate cause thereof, and as an element without which the injury would not have occurred.
The trial judge did not so state, but, if he concluded that Mrs. Brinkmoeller was contributorily negligent as a matter of law because of her intoxicated condition which served as a proximate cause of her injuries, and used that as a reason to grant the motion for a directed verdict, then he was in error in arriving at that conclusion. See Fagan v. Atlantic Coast Line R.R. Co. (1917), 220 N.Y. 301, 115 N.E. 704, with Judge Cardozo concurring in the opinion and judgment, which, at page 312, held: "The intoxication of the intestate at the time he was assisted from the train was not contributory negligence. He was negligent in becoming intoxicated, but the defendant was bound to reasonably care for him as he was. * * * His intoxication previous to and at the time the defendant unlawfully placed him, as its passenger, in the hazardous situation is not a direct and proximate cause of the injury and therefore not contributory negligence. * * *"
On the question of contributory negligence, if any, a record of plaintiffs' evidence would have been most helpful. Because, on the instant motion for a directed verdict, the facts asserted in the opening statement of counsel must be construed most strongly in favor of the party against whom the motion is directed, and, if reasonable minds could come to more than one conclusion upon the determinative issue of contributory negligence of Mrs. Brinkmoeller as a proximate cause of her injuries, then the motion should have been overruled. It seems to us that reasonable minds could differ on this issue under the facts asserted.
This motion for a directed verdict was made under favor of Civ. R. 50(A)(5). The rule is a formal adoption of a procedural principle first passed upon by this court in Cornell v. Morrison (1912), 87 Ohio St. 215. In that opinion Judge Donahue suggests that a court should exercise great caution in summarily disposing of a case upon the statement of counsel. He states further that a motion for non-suit is an admission by defendant, for the purpose of the motion, of the truth of all the statements plaintiff proposes to establish by the evidence, leaving no disputed question of fact to be determined by the jury, the only remaining question being one of law for the court.
It seems to us that a disputed question of fact on counsel for plaintiffs' opening statement and the pleadings is present and relates to which of the facts averred proximately caused or contributed to cause Mrs. Brinkmoeller's injuries. Reasonable minds surely could differ here on that issue. Plaintiffs should have been permitted to produce evidence to support those assertions.
For the reasons stated, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.