Opinion
Decided January 30, 1928.
Negligence — Verdict for one tort feasor jointly and severally liable — Tort feasor held liable cannot join co-defendant as defendant in error — Automobile collision at street junction — Reading inapplicable statute to jury not prejudicial — Right of way statute inapplicable to vehicles proceeding in same direction — Intersecting statute inapplicable unless thoroughfares cross — Sections 6310-28, 6310-28a and 6310-33, General Code.
1. Plaintiff in error cannot complain because verdict was returned in favor of a joint tort feasor, with whom he was sued jointly, and petition in error will be dismissed as to such co-defendant on the latter's motion.
2. In action for personal injuries sustained by plaintiff when B's car was thrown into plaintiff's car after collision with another car going in same direction, reading of Section 6310-33, General Code, providing that driver shall have clear and unobstructed view, even if inapplicable to facts, held not prejudicial, in view of whole charge.
3. Section 6310-28, General Code, defining right of way as right of vehicle to proceed uninterruptedly in lawful manner in direction in which it is moving, in preference to another vehicle approaching from different direction, held inapplicable where B's automobile and C's automobile were going in same direction and collided, after which B's automobile was thrown against plaintiff's automobile, injuring her.
4. Section 6310-28 a, General Code, giving motorist approaching intersection from right the right of way, held inapplicable, where B's automobile and C's automobile were going in same direction and collided, after which B's automobile was thrown against plaintiff's automobile, injuring her.
5. In action for injuries sustained by plaintiff, when two automobiles going in same direction and in opposite direction from plaintiff's automobile collided, and one was thrown against plaintiff's automobile, injuring plaintiff, instruction regarding duty of automobile drivers to yield right of way held not prejudicial error.
ERROR: Court of Appeals for Lucas county.
Messrs. Harris Kaplan and Mr. Wm. H. McLellan, Jr., for plaintiff in error.
Messrs. Calkins, Storey Nye, for defendants in error.
Mary Helen Tiedman, the plaintiff below, brought an action in the common pleas court against Henry Bender and John S. Counter, as defendants, to recover for injuries sustained in an automobile collision, which took place at 7:30 p.m., March 5, 1926, at the junction of Madison and Woodruff avenues in the city of Toledo. Upon trial of the case in the common pleas court, the jury returned a verdict in favor of the plaintiff for $1,000 against the defendant John S. Counter, and in favor of the defendant Henry Bender. Judgment was entered on such verdict, and this proceeding in error is brought by John S. Counter, as plaintiff in error, seeking a reversal of the judgment of the court below.
Henry Bender, who is joined as a defendant in error in this proceeding, has filed in this court a motion for an order dismissing the petition in error as to him. We think this motion should be sustained. Plaintiff below might have filed a motion for a new trial as against the defendant Henry Bender, and upon the overruling of the motion, and the entering of judgment in favor of the defendant Bender, the plaintiff below might have prosecuted error, or filed a cross-petition in error in this proceeding. Such action was not taken. The defendants, if both liable, were jointly and severally liable as joint tort-feasors, and the plaintiff in error cannot complain because a verdict was returned in favor of a joint tort-feasor, with whom he was sued jointly. The petition in error will therefore be dismissed as to the defendant Henry Bender, and the service of summons in error made upon him is quashed, vacated, and set aside.
One of the claimed grounds of error is that the verdict is manifestly against the weight of the evidence. We think the contention of the plaintiff in error in this respect is not well founded.
There remains for us to consider the other alleged ground of error, which is that the court erred in his charge to the jury. We quote the parts of the charge complained of:
"Section 6310-33. Drivers shall have a clear and unobstructed view to the front and to both sides of their vehicles and shall have a clear view to the rear of their vehicles by direct view or by mirror."
"And if you find from the evidence that these automobiles, one driven by Henry Bender, and the other driven by John Counter, approached this street intersection at or about the same time, and in such manner as would indicate that in the exercise of ordinary care one would have yielded the right of way to the other, and that their relative situation and circumstances were in other respects equal, then and under such circumstances John Counter, by virtue of the terms of the law that I have read to you, had the right of way. * * *
"If you find the truth to be that the automobile of John Counter, driven by himself, and the automobile of Henry Bender, driven by himself, approached the intersection of Woodruff avenue and Madison avenue at or about the same time, and that the situation of the defendant Bender and of the defendant Counter and the circumstances were such that in the exercise of ordinary care Counter, driving his automobile, would have yielded the right of way to the automobile driven by the defendant Bender, then, under such circumstances, Bender had the right of way. But if, under the law and the evidence, you do not so find the facts to be, and do find that Counter was upon Woodruff avenue at its intersection with Madison avenue, and the circumstances were such, and the relative situation at said time of the defendant Bender operating his automobile and of Counter operating his automobile was such, that Bender in the exercise of ordinary care would have permitted and allowed Counter, so operating his automobile, to proceed at said intersection, then in such case Counter, operating his automobile, would have had the right so to proceed."
The evidence discloses that Woodruff avenue in the city of Toledo runs east and west, and that Madison avenue, running somewhat west of a northwesterly direction, terminates at its northwesterly end in a junction with Woodruff avenue, at an angle of about 35 degrees. At the time in question the plaintiff was sitting in a car headed east on Woodruff avenue, and one Southern was the driver thereof. The car driven by Counter was going west on Woodruff avenue, and that driven by Bender approached Woodruff avenue from Madison avenue, and turned from Madison avenue onto Woodruff, going along Woodruff in a westerly direction. The cars of Counter and Bender collided in Woodruff avenue at about the west side of the junction. Thereupon the car of Bender was thrown into the car in which plaintiff was riding, causing injuries to her.
We think it was not prejudicial to the rights of plaintiff in error for the court to read to the jury Section 6310-33, as above quoted, as there is nothing in the charge explanatory of this section. The plaintiff in error claims there was no issue upon which the section could have a bearing. Even so, the plaintiff in error could not be prejudiced by a mere reading thereof to the jury, in the light of the whole charge.
It is contended that the other portions of the charge of the court above quoted constitute prejudicial error, for the reason that due weight is not given to Sections 6310-28 and 6310-28 a, General Code. It will be observed, however, that under Section 6310-28 right of way means the right of a vehicle to proceed uninterruptedly in a lawful manner in the direction in which it is moving, in preference to another vehicle approaching from a different direction into its path. The evidence shows that the automobiles of the two defendants below were going in the same direction. The statute was, therefore, not applicable. As to Section 6310-28 a, we hold that it only gives the right of way to a vehicle approaching from the right, where the paths of the two vehicles intersect. There is no intersection of paths, or of streets, unless such paths or streets cross each other. Atwood v. Connecticut Co., 82 Conn. 539, 74 A. 899, 901; Godfrey v. City of New York, 104 App. Div. 357, 93 N.Y.S., 899, 903. Section 6310-28 a, therefore, has no bearing upon the case at bar.
On the whole, we think that the charge was more favorable to the plaintiff in error than he had a right to expect. There is, however, no error in the charge prejudicial to the rights of the plaintiff in error.
The judgment will be affirmed.
Judgment affirmed.
RICHARDS and LLOYD, JJ., concur.