Opinion
No. 35934
Decided December 16, 1959.
Negligence — Motor vehicles — Contributory negligence — Not pleaded or proved — Charge to jury erroneous — Driving to left of center line of highway — Oncoming motorist driving off road to avoid collision.
APPEAL from the Court of Appeals for Knox County.
This is an action to recover damages for personal injuries resulting from an automobile accident alleged to have been caused by the negligence of defendant. It is alleged in the petition that, while plaintiff was operating his automobile in a northerly direction on the east or right side of a state highway, defendant was operating his automobile in a southerly direction on the same highway; that, in overtaking and attempting to pass another vehicle on a curve, defendant suddenly drove his vehicle onto the left of the center line of the highway directly into the path of plaintiff's automobile; that defendant's vehicle slid sideways down plaintiff's lane of travel and struck the left rear side of plaintiff's vehicle as plaintiff, in order to avoid a head-on collision, turned his vehicle to the right and off the east side of the highway into a ditch.
In his answer defendant admits that he and the plaintiff were operating their vehicles on the highway at the time and in the directions as alleged by plaintiff and denies all other allegations of the petition.
The following facts are disclosed by the record.
At the time of the incident involved herein, an afternoon in June, plaintiff was driving his car in a northerly direction on the east or right side of a state highway at a speed of approximately 40 miles an hour. Some distance ahead of him the road curved to his left. As plaintiff was proceeding on a straight stretch of road approaching this curve defendant was driving his automobile in a southerly direction on the same road at a speed of 55 or 60 miles an hour. As defendant rounded this curve and suddenly came into view of plaintiff, he, defendant, was attempting to pass two vehicles ahead of him proceeding in the same direction. In order to do this it was necessary for him to drive on his left or wrong side of the center line of the road. He was successful in passing the car immediately ahead of him but when he was along side of and attempting to pass the second car he discovered he had misjudged his distance and attempted to get back into his own right lane behind the second car which he was attempting to pass. In doing so he applied his brakes and turned his car to the right, causing it to slide sideways at an angle in the wrong or left lane of the road toward and in the path of the oncoming car of plaintiff and to collide with the car ahead of him on his right side of the road and which he had attempted to pass. Defendant testified that his car was across the center line of the road before and at the time of the impact. Plaintiff, seeing the close proximity of the oncoming car of defendant in this sideways position on plaintiff's side of the road, turned his car sharply to the right and into the ditch in order to avoid what he thought would otherwise be a head-on collision. He testified that there was not room for an automobile to be off the paved portion of the road "and stay out of the ditch at the same time." There is a conflict in the evidence as to whether defendant's car collided with or struck plaintiff's car. Each driver, seeing the perilous situation and the close proximity of the cars, turned sharply to his right in attempting to avoid a collision.
Defendant, in his answer, does not plead contributory negligence of the plaintiff. The court, however, charged on contributory negligence.
The jury returned a verdict for defendant, on which judgment was rendered.
The Court of Appeals, by a divided vote, affirmed the judgment.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Mayer McDermott and Mr. Herschel G. Holland, for appellant.
Messrs. Zelkowitz Barry, for appellee.
At the time involved herein, plaintiff was operating his car continuously on the right or proper side of the road at a rate of speed within the speed limit which at that time was 50 miles an hour (Section 4511.21, Revised Code, 124 Ohio Laws, 520). Defendant was operating his car in excess of the prima facie lawful speed limit on the left or wrong side of the road, rounding a curve on the outside thereof at a speed of from 55 to 60 miles an hour and attempting to pass two cars ahead of him proceeding in the same direction without first making sure that the left side of the road was clearly visible and free from oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any traffic approaching from the opposite direction or any traffic overtaken, as required by Section 4511.29, Revised Code. The defendant in thus violating the statute was clearly guilty of negligence as a matter of law.
Since contributory negligence is not pleaded, there must be direct proof of a fact from which an inference of such negligence can reasonably be drawn. Parras v. Standard Oil Co., 160 Ohio St. 315. The record contains no evidence of contributory negligence on the part of plaintiff or proof of a fact from which an inference of such negligence can reasonably be drawn. Plaintiff was driving on the proper side of the road well within a lawful speed, and under the circumstances his reaction in turning into the ditch to avoid a head-on collision was normal, prudent and reasonable.
The trial court was in error in charging on contributory negligence.
The judgment of the Court of Appeals is reversed and the cause remanded to the trial court for further proceedings according to law.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, HERBERT and PECK, JJ., concur.
It has long been the law of Ohio that, even though the pleadings do not raise the issue of contributory negligence, if it arises in the case by virtue of the evidence, the court should charge on that subject. Behm v. Cincinnati, Dayton Toledo Traction Co., 86 Ohio St. 209, 99 N.E. 383; Bradley v. Cleveland Ry. Co., 112 Ohio St. 35, 146 N.E. 805; Fries v. Cincinnati Street Ry. Co., 138 Ohio St. 537, 37 N.E.2d 193; Centrello, a Minor, v. Basky, 164 Ohio St. 41, 128 N.E.2d 80.
Probably no greater difficulty faces the trial judge in the course of a negligence trial than the determination of whether the question of contributory negligence is "in the case." Such difficulty is probably only surpassed by that confronting the jury in comprehending the instructions which the judge is required to give in the event he determines that the plaintiff's evidence raises an inference of contributory negligence. Baltimore Ohio Rd. Co. v. Whitacre, 35 Ohio St. 627.
The trial judge here heard all the evidence. In attempting to find the fine line between whether he should charge on contributory negligence or whether he should not, he undoubtedly gave careful consideration to all the evidence. He determined that the question was there. The Court of Appeals reviewed that record and a majority thereof came to the same conclusion. For this court to say from that same record that, as a matter of law, the reaction of the plaintiff was "normal, prudent and reasonable" is an arrogation to itself of a function more properly to be relegated to the jury.