Opinion
No. 32284
Decided June 13, 1951.
Motor vehicles — Traffic regulations — Assured-clear-distance-ahead rule — Section 6307-21, General Code — Not applicable, when — Motorist not afforded reasonable opportunity to stop — Applicable where motorist afforded opportunity to avoid collision — Collision at street intersection controlled by traffic lights — Assured-clear-distance-ahead rule properly withdrawn from jury, when — Negligence action — Evidence — Error in admission or rejection not prejudicial, when — Jury found no cause of action — Excluded testimony later given.
1. The "assured-clear-distance-ahead" rule contained in Section 6307-21, General Code, has no application in a situation where a person, motor vehicle or other object suddenly enters the path of another motor vehicle in such manner that the operator of such other motor vehicle is afforded no reasonable opportunity to stop his vehicle and avoid a collision.
2. For such rule to apply it must appear that a person, motor vehicle or other object came into the view of the operator at a point sufficiently distant ahead to enable such operator, in the exercise of ordinary care, to stop his vehicle and avoid a collision. ( Erdman v. Mestrovich, 155 Ohio St. 85, approved and followed.)
3. In an action to recover damages resulting from a collision of two automobiles, where the automobiles, one proceeding north and the other west at a lawful speed, approached a place where the thoroughfares, over which they were traveling, intersected and there were electric traffic lights at such intersection, and each automobile operator testifies that the traffic light facing him was green when he entered the intersection and that he did not observe the automobile of the other until a second before the collision, the court proceeds properly in withdrawing from the consideration of the jury a specification of negligence charging one of the operators with a violation of the "assured-clear-distance-ahead" rule.
4. Where, in an action for damages growing out of a collision of automobiles, it is plainly evident from the verdict of the jury that it found that both plaintiff and defendant were chargeable with negligence which directly contributed to the collision and ensuing damages or that it was unable to determine from the evidence where the blame for the collision lay, any error of the trial court in admitting or rejecting evidence on the subject of damages is harmless unless such rulings palpably prejudiced the jury on the main issue in the case.
5. Where, in such an action, error has occurred in the exclusion of testimony but such testimony, or testimony to the same effect, is later given by the witnesses, no prejudice results.
APPEAL from the Court of Appeals for Williams county.
The present litigation grows out of a collision between two automobiles at a street intersection in the village of Montpelier, Ohio. Darcy Sherer filed his petition in the Court of Common Pleas of Williams County against William G. Smith, a minor, claiming that the collision occurred by reason of Smith's negligence and praying for judgment in the sum of $5,000 on account of personal injuries sustained and for damage to plaintiff's automobile. Smith filed an answer by his guardian ad litem denying the material allegations of the petition. This was accompanied by a cross-petition in which the defendant charged plaintiff with negligence and in which he asked judgment in the sum of $300 for damage to his automobile.
Upon the second trial of the action before the court and a jury, with which trial we are presently concerned, the evidence as to which of the parties was lawfully in the intersection with the right of way was conflicting.
The collision occurred late on the night of November 28, 1945, at the intersection of Monroe and Main streets where four electric traffic lights had been installed. Plaintiff testified that he was driving north on Monroe street at a speed of about 15 miles per hour; that the traffic light at the intersection facing him turned green as he was passing an alley some distance south of the intersection; and that he drove into the intersection without again looking at the light and was struck by defendant's automobile as plaintiff was passing through the intersection.
Defendant testified that he was driving his automobile westerly on Main street at a speed of about 20 miles per hour; that just before he reached the intersection the traffic light facing him turned green; and that he entered the intersection on the green light.
Both plaintiff and defendant testified that neither observed the other's automobile until a second before the crash.
At the conclusion of plaintiff's case in chief, the trial judge sustained defendant's motion to withdraw from the consideration of the jury the specification of negligence, contained in the petition, charging defendant with the violation of that part of Section 6307-21, General Code, providing that no person shall drive a motor vehicle at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead. No charge on that subject was given.
In his general charge the trial judge correctly instructed the jury on the issues of negligence, contributory negligence, proximate cause and damages and properly covered the various elements involved in a collision of motor vehicles at a street intersection under the circumstances presented.
Further charging the jury, the trial judge said:
"However, if you should find that neither plaintiff nor defendant were negligent or if you should find by a preponderance of the evidence that both plaintiff and defendant were negligent and their negligence proximately contributed to their own damage or if you are unable to ascertain how this accident happened, then your verdict shall be for neither party and you shall find no cause of action in behalf of either party."
Three forms of verdict were submitted to the jury — one for plaintiff, one for defendant and the third finding no cause of action in favor of either the plaintiff or defendant. The jury returned the third form of verdict signed by all 12 of its members.
After the entry of judgment on the verdict and the overruling of plaintiff's motion for a new trial, an appeal was perfected by plaintiff to the Court of Appeals where the judgment was reversed and the cause remanded for a new trial for the three following errors found to have been committed by the trial court and to have been prejudicial to plaintiff:
"(a) In withdrawing from the jury consideration of the assured clear distance ahead as an element of negligence on the issue of negligence;
"(b) In admitting evidence offered by defendant;
"(c) In excluding evidence offered by plaintiff."
Allowance of defendant's motion to require the Court of Appeals to certify its record brings the controversy here for review on its merits.
Messrs. Newcomer, Newcomer Shaffer, for appellee.
Messrs. Gebhard Hogue, for appellant.
This court held, in effect, in the recent case of Erdman v. Mestrovich, 155 Ohio St. 85, 97 N.E.2d 674, that the assured-clear-distance-ahead rule has no application in a situation where a person, motor vehicle or object suddenly enters the path of another motor vehicle from the side, unless such person, motor vehicle or object comes into the view of the operator of the other motor vehicle at a point sufficiently distant ahead to enable such operator, in the exercise of ordinary care, to stop his vehicle and avoid a collision.
Applying such holding to the instant case wherein plaintiff and defendant entered the intersection from different directions, each claiming he proceeded on a green light, and where both of them testified that neither saw the automobile of the other until a second before the crash, we are of the opinion that the trial court herein properly removed from the consideration of the jury the "assured-clear-distance-ahead" provision of Section 6307-21, General Code.
Most of the evidence offered by plaintiff, which was at first excluded upon objection, and most of the evidence admitted on behalf of defendant over objection, related to the element of damages.
There is no dispute in the evidence that plaintiff by reason of the collision sustained some physical injuries and that his automobile was damaged. However, it is apparent that the jury returned the verdict it did because it reached the conclusion that both plaintiff and defendant were chargeable with negligence which was directly responsible for the collision and the ensuing damage, or because it was unable to determine from the evidence where the blame for the collision lay. Manifestly, the jury never reached the question of damages.
The rule is well established that where it is plainly evident from the verdict of a jury that it found no negligence or no cause of action, any error in admitting or rejecting evidence respecting the subject of damages is harmless unless it palpably prejudiced the jury on the main issue. Mitchell v. Pittsburgh, C., C. St. L. Rd. Co. (C.C.A. 6), 13 F.2d 704, 705; Spiegel v. Straw, 196 Mich. 581, 163 N.W. 4; and Gallagher v. Hildebrand, 285 Pa. 350, 132 A. 174. Compare Boviard Seyfang Mfg. Co. v. Martland, 92 Ohio St. 201, 204, 110 N.E. 749, 750; and Ochsner, Admr., v. Cincinnati Traction Co., 107 Ohio St. 33, 140 N.E. 644.
Besides, an examination of the bill of exceptions discloses that plaintiff ultimately succeeded in getting before the jury by his own testimony and that of witnesses he produced practically everything he wished, including those matters initially excluded by the trial court. It is generally recognized that where error has occurred in the exclusion of testimony, but such testimony or testimony to the same effect is later received from a witness, no prejudice results to the complaining party. Mauk v. Brundage, 68 Ohio St. 89, 67 N.E. 152, 62 L.R.A., 477; and Rothe v. Pennsylvania Co. (C.C.A. 6), 195 F., 21, 27, 114 C.C.A., 627, 633.
We have read the record in this case throughout and are of the opinion that on the whole the case was fairly and competently tried and that no reversible error intervened.
It follows that the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., STEWART, TAFT, MATTHIAS and HART, JJ., concur.