Opinion
No. 79-561
Decided June 4, 1980.
Negligence — Automobile collision — Public intersection — Directed verdict for defendant — Erroneous, when — Contributory negligence not shown.
APPEAL from the Court of Appeals for Franklin County.
Ralph W. Humphrey (hereinafter appellant) initiated an action against Robert H. Dent (hereinafter appellee) for personal and property damages arising out of a motor vehicle collision at an intersection in a residential neighborhood in Columbus, Ohio, on April 23, 1975. At the conclusion of all the evidence, the trial court directed a verdict for appellee on the basis of appellant's contributory negligence in two respects: (1) violation of a stop sign ordinance and (2) failure to look effectively to discover danger.
The ordinance pertinent to the instant cause is Columbus City Code 2131.18 which, in part, reads as follows:
"Right of way through streets; stop and yield right-of-way signs; merging into laned traffic.
"(a) Except when directed to proceed by a law enforcement officer, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After having stopped, the driver shall yield the right of way to any vehicle or pedestrian in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time the driver is moving across or within the intersection or junction of roadways."
The Court of Appeals determined that the trial court improperly held that appellant was contributorily negligent for his violation of a stop sign ordinance but affirmed the trial court's directed verdict on the basis of appellant's failure to look effectively to discover danger.
The relevant facts pertinent to the lower court's directed verdict are as follows. Appellee's car was southbound on Binns Boulevard, a through street in Columbus, and appellant's car was westbound on Fremont Avenue, which has a stop sign east of the curb line of Binns Boulevard. The record indicates that both parties were familiar with the neighborhood and intersection. The collision herein occurred near the center of the intersection. The left front bumper of appellee's car struck the right front wheel area of appellant's car, which resulted in appellant's ejection from the passenger side door of his car. Appellant received serious and permanent injuries from this collision.
Two eyewitnesses were seated in a car northbound at the intersection when the collision occurred. They testified that appellee, who was southbound, accelerated his automobile when he passed their car and was traveling between 50-60 miles per hour in a 25 mile-per-hour zone.
The record indicates that appellant approached the intersection at 20 to 25 miles per hour and came to a complete stop at the stop sign, located 10 to 15 feet from the curb line of Binns Boulevard. On the northeast corner of the intersection there was a hedge, approximately four feet high and eight to ten feet from the curb line of Binns. Appellant testified that, after stopping at the stop sign, he saw the glare from headlights to his right, since the hedge blocked any vision of the oncoming auto. Appellant then moved his car slowly up to the intersection to determine how far away the oncoming car was from the intersection. Upon noting appellee's vehicle being approximately a block away, appellant glanced to his left and then to his right and then proceeded into the intersection. Appellant's car was knocked over 50 feet south of its original path of travel and came to rest headed southbound on a lawn south of the intersection on the west side of Binns Boulevard.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Pees Behal and Mr. Randall W. Pees, for appellant.
Messrs. Crabbe, Brown, Jones, Potts Schmidt, Mr. Charles E. Brown and Mr. Steven B. Ayers, for appellee.
Appellant, in his first proposition of law, asks this court to adopt a rule of comparative negligence. This court, in Baab v. Shockling (1980), 61 Ohio St.2d 55, 57, recently reaffirmed its decision not to judicially alter the law in this area and held that any change in the law should emanate from the General Assembly. Accordingly, appellant's first proposition of law is overruled.
Subsequent to the filings and oral arguments herein, we note that the General Assembly, in Am. S.B. No. 165, effective June 20, 1980, has enacted R.C. 2315.19 to substitute a form of comparative negligence for the common-law doctrine of contributory negligence in the determination of the right of recovery and amount of damages in negligence actions.
Appellant, in his second proposition of law, asserts, in essence, that the lower court erred by directing a verdict in favor of appellee and determining that appellant was guilty of contributory negligence as a matter of law.
As noted herein, the Court of Appeals affirmed the trial court's directed verdict only on the basis that appellant was contributorily negligent due to his failure to look effectively to discover danger.
The test in directing a verdict is whether, after construing the evidence most strongly in favor of the party against whom the motion is directed, the court finds that reasonable minds can come to but one conclusion, that conclusion being adverse to such party. Civ. R. 50(A)(4). In the instant cause, the evidence must be construed most strongly in favor of the appellant.
It is undisputed that appellant was under a duty to exercise ordinary care to avoid a collision even if the oncoming car was approaching illegally at a high rate of speed. Yet, one does not have to anticipate the negligence of another. In Trentman v. Cox (1928), 118 Ohio St. 247, the second paragraph of the syllabus reads as follows:
"The failure of a pedestrian to anticipate negligence on the part of the driver of the automobile does not defeat an action for the injury sustained."
Trentman, supra, is factually similar to the instant cause, except that the injured party, in Trentman, was a pedestrian. The court, in Trentman, properly determined that a directed verdict was not proper and that the question as presented should be determined by a jury.
Furthermore, in Smith v. Zone Cabs (1939), 135 Ohio St. 415, 422, the court stated:
"In Knapp v. Barrett, supra [(1915) 216 N.Y. 226, 110 N.E. 428], Judge Cardozo, later justice of the Supreme Court of the United States, said the law does not even say that because a pedestrian `sees a wagon approaching, he must stop till it has passed. He may go forward unless it is close upon him; and whether he is negligent in going forward, will be a question for the jury. If he has used his eyes, and has miscalculated the danger, he may still be free from fault.'" (Emphasis added.)
In the instant cause, there is sufficient evidence to indicate that appellant's determination to proceed was reasonable based on appellee's speed and position at the time appellant attempted to cross the intersection. The acceleration of appellee's vehicle was not anticipated by appellant, and therefore the latter can not be considered contributorily negligent according to law just because the collision did occur. Rather, we hold that appellant's contributory negligence is a question for a jury's determination.
A person does not have the continuous duty to use his faculties for his own safety at all times and to use them only in the most effective manner. If such a duty were imposed herein, it would go beyond appellant's common-law duty to exercise ordinary care. Wolfe v. Baskin (1940), 137 Ohio St. 284.
This court, being of the opinion that the evidence as presented, construed most strongly in favor of the appellant, does not show contributory negligence as a matter of law, finds that the trial court erred by directing a verdict in appellee's favor. Therefore, the judgment of the Court of Appeals is reversed and the cause remanded to the trial court for a new trial in accordance with this opinion.
Judgment reversed and cause remanded.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.
HERBERT and P. BROWN, JJ., concur in the judgment.