Opinion
No. 24480
Decided June 20, 1934.
Negligence — Last clear chance inapplicable where negligence and contributory negligence concurrent.
The last clear chance rule has no application to any situation except where the injured party through his own negligence has placed himself in a position of peril. The doctrine presupposes the antecedent negligence of the plaintiff, and an instruction on such issue is not proper where the negligence of the defendant and contributory negligence of the plaintiff are concurrent. ( Cleveland Ry. Co. v. Masterson, 126 Ohio St. 42, and Pennsylvania Co. v. Hart, 101 Ohio St. 196, approved and followed.)
ERROR to the Court of Appeals of Mercer county.
This case comes into this court from the Court of Appeals of Mercer county on the allowance of motion to certify. That court affirmed the judgment of the Court of Common Pleas rendered in favor of the plaintiff. The parties will be referred to as they appeared in the trial court.
Della Marlatt, administratrix of the estate of Lawrence Marlatt, deceased, brought suit to recover damages under the statute, arising from the alleged negligence of the defendant in the operation of her automobile upon a street in the Village of Celina. The decedent was at the time in question pursuing his employment as a laborer in the service of the Department of State Highways. He was struck by the defendant's automobile, while driven by herself over said highway, and this action is based upon the claim that his death resulted from the injuries sustained in such collision. The following are the pertinent averments of the petition covering the charge of negligence:
"Plaintiff further says that the injuries and death of the said Lawrence Marlatt was caused by the careless and negligent acts of the defendant in driving and operating her said automobile in the manner and things following, to wit: First, the defendant failed to have her said car under control at the time she struck the deceased. Second, The defendant operated her said car at a speed greater than was reasonable and proper under the circumstances there and then existing, and having regard for the width, traffic, use and the general usual rules of said road or highway. Third, The defendant operated said car without due regard for the, safety and rights of the deceased, and so as to endanger the life and limb of the deceased. Fourth, The defendant did not slow down her automobile as she approached and passed said men working on said road at said point but proceeded to drive at a dangerous rate of speed, to wit: twenty-five (25) miles per hour, striking the deceased, Lawrence Marlatt, and knocking him to the pavement and dragging him for a distance of about seventy (70) feet, before stopping her said automobile."
Issue was made by the answer, which denied any act of negligence upon the part of the defendant and averred that such injuries as were sustained by decedent as a result of such collision were due to the sole fault, negligence and carelessness of the decedent.
The trial resulted in a verdict in favor of the plaintiff in the sum of $4,042, upon which judgment was entered, and that judgment was affirmed by the Court of Appeals.
Messrs. Ballard Hensel and Messrs. Hoke Wright, for plaintiff in error.
Mr. B.A. Myers and Mr. Frank L. Kloeb, for defendant in error.
The decedent was struck by an automobile owned and operated by the defendant. The former was a laborer in the service of the State Highway Department, and when struck was walking across the highway from the north to the south. The defendant was traveling east. Evidence was introduced tending to show negligence upon the part of the defendant and also contributory negligence upon the part of the decedent.
The principal error charged is predicated upon instructions to the jury given before argument upon the request of the plaintiff. They are as follows:
"Plaintiff's Request No. 11.
"The court instructs the jury as a matter of law, that if you find from the evidence that the deceased, Lawrence Marlatt, failed to exercise ordinary care for his own safety, in walking across the highway at the point of the accident, yet if you further find from the evidence, that at said time and place the deceased, Lawrence Marlatt, was in peril of being struck by the automobile and was unaware of such peril until the automobile was so close upon him that he was in helpless peril, and if you further find from the evidence that such peril of the deceased, Lawrence Marlatt, if he was in such peril, was known, or by the exercise of ordinary care might have been known, by the defendant, Effie Brock, in time, by the exercise of ordinary care in the use of the means at her command, to have prevented hitting the deceased, Lawrence Marlatt, either by stopping her automobile or by sufficiently slackening the speed thereof, or by swerving to one side or the other or by giving reasonably sufficient warning by sounding her horn or otherwise, and you further find that the defendant was negligent in one or more of the negligent acts complained of in the petition, and as a direct result of such failure on her part, if she did so fail, the deceased, Lawrence Marlatt, was struck and injured, and that said injuries caused his death, then your verdict must be for the plaintiff."
"Plaintiff's Request No. 12.
"I charge you as a matter of law that if you find from all the evidence in this case that although the negligence of the deceased, Lawrence Marlatt, may have contributed toward getting him into a position of danger, yet if this negligence had ceased for a sufficient time prior to the accident to have enabled the defendant after she knew his situation of peril, if you find he was in such peril, to have avoided the accident by the exercise of ordinary care on her part, and if you further find that the defendant was negligent on one or more of the particular acts complained of in the petition, and struck and injured the deceased, Lawrence Marlatt, and that said injuries were the proximate cause of his death, your verdict should be for the plaintiff."
If it be conceded that the doctrine of the last clear chance is applicable to this case the instructions given were clearly erroneous. Cleveland Ry. Co. v. Masterson, 126 Ohio St. 42, 183 N.E. 873. But the doctrine of the last clear chance had no place whatever in this case, and a charge on that issue, even though correct in its terms and phraseology, would have been improper. The last clear chance issue was not presented either by the pleadings or proof. The case is one of simple negligence in the pleadings and as presented by the evidence in the record. The last clear chance rule has no application to any situation except where the injured party through his own negligence has placed himself in a position of peril. The doctrine presupposes his antecedent fault and negligence, as a result of which he is in a place of peril. His negligence does not absolve the defendant from liability, if, knowing such peril, defendant fails thereafter to exercise ordinary care to avoid causing injury. Such charge is not proper where the claimed negligence of the defendant and the contributory negligence of the plaintiff are concurrent. This is but a restatement of the principle involved in the doctrine of the last clear chance, previously announced by this court and fully discussed, with citation of supporting authorities, in the opinion of the recent Masterson case, supra.
The record discloses that the decedent's act in crossing the highway and the approach of the defendant's automobile were concurrent acts, and, if negligent, such negligence continued until they came into collision, which collision some of the evidence indicates occurred at least partly as a result of plaintiff's decedent suddenly reversing his course into the path of the approaching automobile. Without fully reviewing the evidence in the record it is sufficient to say that in so far as the evidence indicated contributory negligence of the plaintiff's decedent it was continuing and concurrent with the acts of the defendant charged to have been negligent. It had not ceased for a sufficient time prior to the accident to enable the defendant, after she knew of the peril of the decedent, to avoid the accident, and hence the rule of the last clear chance has no application and its injection into the case is prejudicially erroneous. Pennsylvania Co. v. Hart, 101 Ohio St. 196, 128 N.E. 142.
We are unable to follow the theory that by reason of the fact that the evidence tended to show wanton and wilful negligence, and a charge upon such issue would have been proper, no prejudice resulted from giving the last clear chance instruction. The issue of wanton and wilful negligence was not presented by the pleadings, nor would a charge thereon have been warranted by the evidence. The pleadings and proof at most present a case of ordinary and simple negligence, and should have been submitted to the jury with appropriate instructions limited to such issues.
Prejudicial error is also claimed from the voir dire examination of jurors upon the subject of casualty insurance. A recital of the numerous inquiries in varied forms asked of the individual members of the panel again directly presents the question whether such inquiries shall be excluded and forbidden. There seems to be no middle ground. This court hold in the case of Pavilonis v. Valentine, 120 Ohio St. 154, 165 N.E. 730, that: "It is not error to permit the examination of a prospective juror on his voir dire as to his connection with, interest in or relationship to a casualty insurance company, where such company is directly or indirectly interested in the result of the trial."
In the case of Vega, Admr., v. Evans, post, 535, this day decided, the above paragraph of the syllabus in the Pavilonis case is overruled. Action there held not to be erroneous is now declared by the majority of the court to be erroneous. The writer of this opinion joined in the Pavilions decision and adheres thereto. However, the rule now announced by the majority applied to the instant case would necessitate a reversal of the judgment for error in the voir dire examination of the prospective jurors in addition to the ground upon which reversal is predicated in this opinion.
In the instant case no insurance company was a party to the litigation, nor had it been made to appear that such company was actively and directly interested in the litigation.
Judgment reversed.
WEYGANDT, C.J., STEPHENSON, JONES, BEVIS and ZIMMERMAN, JJ., concur.
WILKIN, J., not participating.