Opinion
Case No. 3:03CV7098
December 29, 2003
ORDER
This is an FELA action by an employee of the defendant Norfolk Southern Railway Company (NS) against the railway, a company hired by the railway to transport the plaintiff and fellow workers, Professional Transportation, Inc. (PTI), a driver for PTI, John Conroy, and another individual, Russell Carmony. Pending are motions for summary judgment by the defendants NS and PTI.
For the reasons that follow, the motions shall be granted.
PTI's driver, Conroy, was headed eastbound on Western Avenue in Toledo, Ohio, on January 10, 2002, at dusk. Western Avenue had two lanes of travel in each direction. As Conroy approached the intersection of Western Avenue and Hawley Street (which runs generally north-south), he observed another vehicle ahead of him turning left (to the north) onto Hawley Street. Conroy slowed, either allowing the car ahead of him to complete its turn, or going to the right of that car into the right-hand lane of travel.
As Conroy entered the intersection, Carmony's pickup truck, which was westbound on Western Avenue, turned in front of Conroy's van, and the two vehicles collided.
Conroy testified on deposition that he was familiar with the intersection, and considered it dangerous because drivers often turned in front of oncoming traffic. He testified that he had seen Carmony' s pickup truck for two to three minutes. As he described the accident, he had "seen this clown comin' and I didn't know what he was going to do. At first I thought he was going to stop, instead he made a left turn in front of me." (Conroy pp. 31, 56).
Conroy also stated that he saw the Carmony vehicle just as he got to the intersection. (Conroy p. 31). Conroy's other statement, that he had seen the Carmony vehicle two to three minutes prior to the accident, though inconsistent with his statement that he saw that vehicle just as he got to the intersection, is also implausible and clearly erroneous. As PTI points out, were that estimate accurate, Conroy would have first seen the Carmony truck from a distance of a mile. Testimony that asserts an impossibility can, in my view, properly be disregarded when determining whether there are any genuine disputes of material fact.
Conroy acknowledged that, though he was concerned the Carmony vehicle might not stop, he proceeded into the intersection.
Conroy's apprehensions and concerns provide the basis for plaintiff's allegation that Conroy operated his van negligently: namely, that Conroy negligently ignored his apprehensions about what the Carmony vehicle would do, and should not have continued through the intersection until he was certain that it was safe to do so.
There is no dispute, however, that all that Conroy had were vague, unspecific apprehensions based on his unawareness of what the oncoming truck was going to do. Carmony did not signal an intent to turn; nor, apparently, had he visibly slowed as he approached or entered the intersection. By all accounts,
Carmony's turn across Conroy's path was sudden and not preceded by any indication on his part of his intent to turn in front of Conroy's van.
Plaintiff can point to no objective fact or circumstance that could or did alert Conroy to any actual risk of danger or harm. Absent something in the record that should have alerted a reasonable driver in Conroy's position that there was a risk of harm, no negligence can be imputed to him. There being no evidence of negligence on Conroy's part, neither he, PTI, nor NS can be found liable to the plaintiff.
This conclusion is underscored by Ohio law, which unequivocally gave the right of way to Conroy, and which did not impose any duty on him to surrender the right of way under the circumstances of this case.
As the Ohio Supreme Court made clear in Morris vs. Bloomgren, 127 Ohio St. 147, 153-54 (1933), a vehicle with the right of way has an "unqualified, absolute" privilege to proceed:
It is argued that a construction such as we give to those sections disadvantages the unfavored driver and puts a premium on an unlawful, careless or negligent driver who happens to have the right of way, and that it places upon the driver of the vehicle approaching from the left too great a responsibility for resulting collisions: but this is probably what the Legislature intended. In Ohio we have various laws regulating the speed limit of automobiles. One of them, Section 12603, General Code, prohibits the operation of motor vehicles in public highways at a speed greater than is reasonable or proper, having due regard to the traffic, etc. The trial court covered that section in its general charge. In this connection it must be borne in mind that the privileged right of way is granted only to those who proceed `in a lawful manner'. If the privileged occupant of the right of way is not so proceeding, if at the time of approaching or crossing the intersection he is driving at an unlawful, excessive speed, or if he should be found violating Section 12603, or should be driving through the intersection on the left or wrong side of the highway, such driver would not be proceeding in a lawful manner, and could not claim the preference given him by the quoted traffic sections.
However, so long as suc h driver proceeds lawfully, at a speed that is reasonable and proper, and without violation of, but in obedience to, law or ordinance, he is entitled to maintain his right of way, his statutory right to proceed uninterruptedly, while approaching and crossing the intersection. Because of the dangers lurking and fatalities occurring at highway intersections, the Legislature adopted definite rules for those approaching intersection highways, rules intended to safeguard the traveling public. For those who obey its traffic laws, it gives its shield of protection; to those who disregard them it denies that shield.
Under Morris, moreover, a driver with the right of way properly can assume that the other driver will obey the law and yield the right of way. Only when the driver having the right of way discovers that the non-privileged driver is not yielding the right of way is a duty imposed on the privileged driver (i.e., Conroy) "to use ordinary care not to injure the [non-privileged driver] after becoming aware of his perilous situation." Id. Syllabus, ¶ 5.
The doctrine enunciated in Morris applies even where the privileged driver may have been negligent is some respect. In Timmins vs. Russomano, 14 Ohio St.2d 124 (1968), the privileged driver was not liable to another driver who pulled into her path after observing the privileged driver's right turn signal. Absent a violation of any law, the Court held, the driver retained the absolute right of way.Id. at 125. Here, as noted, there was no negligence on Conroy's part; under Timmins, even if some negligence could be imputed to Conroy, he retained the right of way, provided he otherwise was driving lawfully.
This conclusion finds further support in the Ohio Supreme Court's decision in Deming vs. Osinski, 24 Ohio St.2d 179 (1970). In that case the privileged driver, who had seen the oncoming driver approaching an intersection, glanced away shortly before he entered the intersection. The trial court instructed the jury that it could find the privileged driver to have been negligent for failing to have looked "effectively and continue to look and otherwise remain alert." The Supreme Court, reversing a jury verdict for non-privileged driver, stated that the driver of a vehicle lawfully proceeding and having the right of way has no duty to look or look effectively. He may assume his right of way will be honored. Id. at 181 (citing Morris, supra, Syllabus, ¶ 5).
The cases cited by plaintiff are distinguishable. In Platt vs. CSX Transportation, Inc., 135 Ohio App.3d 280 (1999), the privileged driver, unlike Conroy in this case, was driving unlawfully — he was speeding. In Townsend vs. Downing, 58 Ohio App.3d 59 (1989), the court concluded that there was some evidence that the privileged driver could have prevented the accident when she discovered plaintiff was turning in front of her. There is no such evidence in this case.
Conclusion
In light of the foregoing, plaintiff cannot prevail against any defendant other than Carmony, who is in default. A jury could not find that Conroy was negligent, either as a matter of fact or of law. Absent negligence on Conroy's part, his employer, PTI, cannot be held liable. Likewise, absent negligence on the part of Conroy and PTI, NS cannot be held derivatively liable.
It is, therefore,
ORDERED THAT the defendants' motions for summary judgment (Docs. 50, 54) be, and the same hereby are granted.
A pretrial conference is scheduled for January 5, 2004 at 10:30 a.m.
So ordered.