Opinion
No. 450.
1946-09-20
SECURITY INS. CO. v. SMITH.
Landis, Ferguson, Bieser & Greer, of Dayton, for plaintiff. Pickrel, Schaeffer & Ebeling, of Dayton, for defendant.
Action by the Security Insurance Company against Thelma Irene Smith for damages resulting from an automobile collision.
Judgment for defendant.Landis, Ferguson, Bieser & Greer, of Dayton, for plaintiff. Pickrel, Schaeffer & Ebeling, of Dayton, for defendant.
HOWELL, Judge.
This matter came on for hearing before the Court on the Statement of Claim filed by plaintiff, and the Answer filed on behalf of the defendant, denying all the allegations contained in plaintiff's Statement of Claim; a Jury being waived.
The testimony in the foregoing matter discloses the fact that plaintiff is a corporation organized and existing under the laws of Connecticut and duly qualified to do business in Ohio; that it was engaged in the business of automobile insurance on the 10th day of October, 1945, had in full force and effect a contract of automobile collision insurance between it and Charles C. Brown, under which said Company was required to pay to said Brown the amount of any damage in excess of $25 to Brown's 1941 Ford Tudor automobile, resulting from a collision.
The testimony further shows that on the 10th day of October, 1945, at about 6:30 o'clock p. m. said Brown alleged that he was driving his 1941 Tudor automobile Southwardly on Shroyer Road, a duly dedicated and much travelled through highway in the City of Oakwood, Montgomery County, Ohio, at the intersection of Orchard Drive, when the defendant drove her automobile Eastwardly on said Orchard Drive, onto said Shroyer Road without stopping, causing same to violently collide with said Brown's automobile and damaging same.
All of the foregoing facts were admitted and not denied by the defendant, with the exception of testimony having to do with the responsibility as to who caused the accident.
Plaintiff in his testimony contended that defendant failed to stop her automobile before entering Shroyer Road. Defendant maintained that plaintiff failed to show any legal duty requiring her to stop, as alleged.
Testimony further discloses the fact and agreed by both plaintiff and defendant, that there was no stop sign erected according to law on Orchard Drive for East-bound traffic, and the evidence further shows conclusively that no stop sign had ever been erected at said place in the history of the City of Oakwood, Ohio, and particularly no stop sign existed at said place and time said accident occurred.
Plaintiff, on the other hand, in his testimony contended that Shroyer Road was a main thoroughfare; that Oakwood Transit Company operated busses on the same, and that it was regarded by all who used said thoroughfare as a main thoroughfare.
The Court has checked carefully Oakwood traffic Ordinance No. 1197, Section 40, of Article V, thereof:
‘Operation of Vehicles', which provides:
‘Stop Before Entering a Through Street-(a) Those streets and parts of streets described in Schedule III attached hereto and made a part hereof are hereby declared to be through streets for the purposes of this Section.
‘(b) When stop signs are erected upon highways intersecting a through street at the entrances thereto or at the entrance to any intersection, every driver of a vehicle and every motorman of a street car shall stop at every such sign or at a clearly marked stop line before entering the intersection,’ etc.
Schedule II of ordinance 1197 declares Shroyer Road to be a through street from the North corporation line of the City of Oakweed from the South corporation line of said City.
Referring to Section 6307-63, of the Ohio General Code, we find the following applicable law, which reads as follows: ‘* * * All sections of streets and highways on which are operated * * * motor coaches for carrying passengers for hire along a fixed or regular route under authority granted by the municipal corporation in which such route lies, are hereby designated as through highways provided that stop signs shall be erected at all intersections with such through highways by * * * local authorities as to highways under their jurisdiction * * *.’
Applying this section of the Ohio General Code to the case at hand, we find that no stop sign existed, and at the time complained of by plaintiff at the intersection of Orchard Drive and Shroyer Road, the said Shroyer Road would therefore not be a through highway, or a through street, under the foregoing applicable law.
The Court also carefully read the case of Bartlett v. McDonald, 59 Ohio App. 85, 17 N.E.2d 284, which apparently is a very late case and one right in point on the question of liability and responsibility involved in the instant case.
The Court held in the foregoing case that: Failure of City to install stop signs on intersecting streets after the designation of a street by ordinance as a main thoroughfare precludes the street so designated from becoming a main thoroughfare with the attendant preferential right of way, until stop signs have been erected on the intersecting streets as required by Section 6310-32, O.G.C. (now Section 6310-63, O.G.C.).
The Court was also very much interested in Connors v. Dobbs, 77 Ohio App. 247, 66 N.E.2d 546, which holds that: When a sign is erected then the statute is complied with and the public is charged with knowledge of ordinance as to the designation of a thoroughfare.
Just why the officials of the City of Oakwood failed to place a stop sign at the intersection of Orchard Drive and Shroyer Road is unknown to this Court, but the failure to erect such stop sign on a street entering into Shroyer Road will undoubtedly present further difficulty to litigants and this Court in determining liability and responsibility for accidents occurring at such intersections.
The Plaintiff's witness, Mr. Brown, testified: ‘That the accident happened very quickly and that he did not see the defendant's automobile until just prior and immediately before the collision.’
He also admitted that the view from the West crosswalk of Orchard Drive Northwardly along Shroyer Road was unobstructed over half a block.
Defendant testified that she was proceeding slowly in an Eastwardly direction along Orchard Drive and had made numerous stops at stop signs; that the street intersection involved in the accident at hand was unfamiliar to her. That upon approaching Shroyer Road she was operating her automobile in a slow manner, towit, between 5 and 10 miles per hour, and not seeing a stop sign on Orchard Drive for Shroyer Road, and after looking to her left and seeing no traffic approaching from her left, and that the same condition existed when she looked to the right, she proceeded on across the intersection, at which time her automobile was struck at the left rear fender, when said automobile was approximately in the center of said intersection. That her automobile, after the collision, was thrown so that the rear end thereof went southeast into the curb at the southeast corner and over same, coming to rest headed west, just east of Shroyer Road, and that marks on the roadway made by her automobile evidenced the same.
The defendant's testimony was borne out by Police Officer Conover of the Oakwood Police Department.
There being no stop sign at said intersection, we then come on to consider Section 6307-40, O.G.C.
‘Right-of-way at intersections.’
‘Excepting where otherwise provided the operator of a vehicle, street car or trackless trolley shall yield the right-of-way at an intersection to a vehicle, street car or trackless trolley approasching from the right.’
Section 6307-2, O.G.C.
‘Definitions. * * * “Right of Way.’ The right of a vehicle, street car, trackless trolley or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or he is moving in preference to another vehicle, street car, trackless trolley or pedestrian approaching from a different direction into its or his path.'
The two foregoing sections, the Court feels, are apropo to the facts and circumstances surrounding the present cause of action. Without a stop sign the two sections in question are certainly applicable.
There is no question of the fact that the plaintiff struck defendant's automobile at the left rear fender thereof.
Plaintiff, Brown, in his testimony testified as follows: ‘I did not see this car at any time before the collision. The impact occurred approximately ten feet from the Southwest curb of Shroyer Road and Orchard Drive, or to the right of the center of the intersection. I struck this car, a 1938 Ford coupe and operated by Velma Smith on left rear wheel with the center of the front end of my car.’
It is therefore quite apparent that the plaintiff, Brown, struck the automobile driven by the defendant, Velma Irene Smith.
The Court does therefore find that Shroyer Road at the intersection of Orchard Drive is not a main thoroughfare, nor could it be considered a preferential highway, for the reason that no stop signs have ever been installed on Orchard Drive so as to make Shroyer Road a preferential or main thoroughfare.
The Court does consider the intersection of Shroyer Road and Orchard Drive the same as any other street intersection wherein a preference does not exist or a main thoroughfare has been established.
The Court therefore finds in favor of the defendant and against the plaintiff, and that defendant should recover her costs herein expended.