Summary
In Pallini, the plaintiff claimed that she was stuck by the defendant's automobile as she crossed the street in a crosswalk.
Summary of this case from Gentry v. KelleyOpinion
No. 68-275
Decided March 5, 1969.
Motor vehicles — Assured-clear-distance-ahead statute — Section 4511.21, Revised Code — "Ahead" construed — Charge to jury — Requested special instruction before argument — Court may refuse to give, when — Not correct statement of law — Not pertinent to issue raised by facts.
1. The word "ahead," as used after "assured clear distance" in the first paragraph of Section 4511.21, Revised Code, means to the front of and within the directional line of travel of a motorist whose conduct allegedly violates such statute. (Section 4511.21, Revised Code, construed.)
2. The trial court, in a civil action, may properly refuse to give a requested special instruction before argument to the jury unless such instruction is both a correct statement of law and pertinent and applicable to an issue raised by the evidence in the case. ( Scott v. Hy-Grade Food Products Corp., 131 Ohio St. 225, and Sheen v. Kubiac, 131 Ohio St. 52, followed.)
APPEAL from the Court of Appeals for Cuyahoga County.
Domenica Pallini brought this action in the Court of Common Pleas of Cuyahoga County against David Dankowski to recover damages for injuries she sustained when allegedly struck by defendant's automobile on January 12, 1961. Plaintiff's petition states that she was struck at about 6:10 p.m., while crossing East 71st Street in the village of Cuyahoga Heights in a crosswalk. She alleges that defendant was negligent in failing to keep his automobile under control, in failing to keep a lookout, in failing to sound his horn or give warning of his approach, and in failing to reduce his speed or divert his automobile to avoid striking plaintiff.
Defendant admits that a collision occurred between his automobile and the plaintiff, at substantially the time and place alleged in the petition, but denies the manner. In his answer he alleges that plaintiff suddenly and unexpectedly ran across the street, coming into contact with the left side of his automobile, and that any injuries sustained were proximately caused or contributed to by her own negligence.
At the trial plaintiff testified that she got out of her daughter's car, which was northbound on East 71st Street, waited while another northbound car passed, and then walked in the crosswalk across the street to the point where she was struck. She related that she saw a car "way, way down" to her left, but saw no car to her right, the direction from which defendant was approaching. She recalled coming into contact with the car, but did not know with what portion, nor did she remember what happened after that.
Defendant testified that he first saw plaintiff a split second before the impact, three or four feet to the left of his left front fender, and that he braked and pulled the wheel to the right. He further testified that it was dark, that plaintiff wore dark clothing, that he was going about 20 miles per hour in the inside southbound lane, about three feet to the right of the centerline, with his headlights on, and that plaintiff struck the left side of his car. Two boys who witnessed the accident substantially confirmed these facts and one added that plaintiff ran across the street, south of the crosswalk. Plaintiff was found seven feet south of the crosswalk, two feet west of the center line, and defendant's car stopped some 30 feet beyond, angled toward the west curb. There was no evidence of damage to the front of defendant's car, but there was damage to the left side in the area of the driver's door and windshield after the accident.
Prior to closing argument, plaintiff requested a special instruction based upon an asserted violation of Section 4511.21 of the Revised Code, the "assured clear distance ahead" statute, which was refused by the court. The cause was submitted to the jury, which returned a verdict for the defendant.
Upon appeal, the Court of Appeals found that the failure of the trial court to give plaintiff's requested assured clear distance instruction constituted prejudicial error, and reversed.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Messrs. Tricarichi Carnes and Mr. Charles S. Tricarichi, for appellee.
Messrs. Jamison, Ulrich, Johnson, Burkhalter Hesser, Mr. Richard O. Horn and Mr. William E. Armstrong, for appellant.
The questions now before us are whether the requested special instruction was a correct statement of law, and, if so, whether the instant record contains evidence warranting a special instruction concerning defendant's possible violation of Section 4511.21 of the Revised Code, the assured clear distance statute. See Lackner v. Burns (1964), 175 Ohio St. 469, Bradley v. Mansfield Rapid Transit, Inc. (1950), 154 Ohio St. 154, Washington Fidelity Nat. Ins. Co. v. Herbert (1932), 125 Ohio St. 591. Cf. Smith v. Flesher (1967), 12 Ohio St.2d 107.
The pertinent portion of the instruction reads as follows:
"The court instructs you that in determining whether or not the defendant was negligent in striking the plaintiff with his automobile as she was attempting to cross the highway, under certain circumstances, negligence arises as a matter of law by reason of the violation of certain specific statutory requirements. One of the assignments of negligence as set forth in the petition, which has been read to you, is that the driver of a motor vehicle drove the same at a greater rate of speed than would permit him to bring the vehicle to a stop within the assured clear distance ahead." (Emphasis added.)
The remainder of the instruction contains a correct statement of the law relative to assured clear distance.
If evidence had been introduced which would enable reasonable minds to conclude that defendant's automobile struck plaintiff, the question of whether defendant's automobile struck plaintiff or plaintiff ran into the side of defendant's automobile would have been one of fact for the jury. The disputed special instruction assumes that the defendant struck plaintiff with his automobile and, in that regard, was erroneous.
A second error appears in the instruction wherein the jury was to be told that the petition contained an allegation of defendant's violation of the assured-clear-distance-ahead statute. No such allegation appears in the petition. While this latter error could lack efficacy in cases where our recent admonition not to read pleadings to the jury is heeded (see Cincinnati v. Bossert Machine Co., 16 Ohio St.2d 76, 78) in the instant trial the petition had apparently been so read. Under such circumstances, the failure of the petition to include language which the instruction stated it did include could only have confused the jury.
The instruction was erroneous under the facts in the case at bar and should not have been given. Scott v. Hy-Grade Food Products Corp. (1936), 131 Ohio St. 225, Sheen v. Kubiac (1936), 131 Ohio St. 52.
It is further contended that the record contains evidence from which the jury could have found that plaintiff was in front of defendant's vehicle at sometime prior to the collision. In our opinion, the record does not support this assertion. However, the additional argument is presented that the interpretation placed by this court upon the assured clear distance statute does not require that the discernible object ever have been actually in front of the alleged violator in order for the statute's provisions to obtain. Rather, argues the plaintiff, if a moving person or object appears anywhere in a motorist's field of vision at a point sufficiently advanced of his position on the highway to reasonably enable him to stop his vehicle prior to reaching a point of impact with such person or object, then the operator's failure to so stop constitutes a violation of the statute, irrespective of whether such impact occurs as the result of a movement across and at a right angle to his travel. Plaintiff bases this argument upon her belief that the meaning of the word "ahead," as found in the statute and our decisions, is not limited to an area in the direct path of the alleged violator's vehicle.
We cannot agree with plaintiff's analysis of our decisions in this regard. In Smiley v. Arrow Spring Bed Co. (1941), 138 Ohio St. 81, the second paragraph of the syllabus states:
"To comply with the assured-clear-distance-ahead provision of Section 12603, General Code [Section 4511.21, Revised Code], the driver of a motor vehicle must not operate it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a discernible object obstructing his path or line of travel, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance, within such clear distance ahead and into his path or line of travel, of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith." (Emphasis added.)
In Smiley, Judge Hart chose the word "line" rather than the word "lane" of travel, thereby avoiding possible confusion which could result from the dual meaning of the word "lane." If all traffic lanes were the exact width of the vehicles moving therein, no problem could result. Since such is not the case, however, a discernible object could be within a motorist's traffic lane of travel, but not within his directional line of travel, and the statute would have no application.
Subsequent cases employ the word "lane," but do so under circumstances which clearly show that a motorist's directional line of travel is what was contemplated. For example, see Erdman v. Mestrovich (1951), 155 Ohio St. 85, wherein this court refers to "an obstruction in the motorist's path or lane of travel." (Emphasis added.)
In McFadden v. Elmer C. Breuer Transportation Co. (1952), 156 Ohio St. 430, the word "lane," as used in the first paragraph of the syllabus, must be read in conjunction with the language employed in the second paragraph thereof, as well as the entire discussion in the body of the decision.
The word "ahead," as it appears in Section 4511.21 of the Revised Code, and the word "lane," as it appears in our decisions on the question, mean to the front of, and within the directional line of travel of, a motorist whose conduct is sought to be brought within the rule's application.
The judgment of the Court of Appeals is reversed and the judgment of the Court of Common Pleas is affirmed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, SCHNEIDER and DUNCAN, JJ., concur.