Opinion
Decided April 12, 1934.
Negligence — Collision between car pulling from curb and one approaching from rear — Evidence that plaintiff could see over three hundred feet to rear — Speed of approaching car involves question of fact for jury — No presumption of contributory negligence — Evidence.
In an action for personal injuries received in a collision of the defendant's automobile with that of the plaintiff as the latter pulled out from the curb, evidence that the plaintiff had a clear view to the rear for over 300 feet and should have seen the defendant's car approaching involves a question of fact as to the speed of the defendant's car, over which reasonable minds might differ, and does not raise a presumption of contributory negligence for which it would have been proper to instruct a verdict for the defendant.
ERROR: Court of Appeals for Hamilton county.
Messrs. Harmon, Colston, Goldsmith Hoadly and Mr. Henry B. Street, for plaintiff in error.
Mr. I.L. Huddle and Mr. Ralph B. Kohnen, for defendant in error.
Stacey B. Hill brought an action in the Court of Common Pleas of Hamilton county against the Union Gas Electric Company to recover for personal injuries received in a collision of plaintiff's automobile with an automobile operated by an agent of the defendant company.
At the trial, the defendant company filed a motion at the close of the plaintiff's evidence for an instructed verdict in its favor, which motion the trial court overruled. The motion for an instructed verdict was renewed at the close of all the evidence, which motion the trial court also overruled. The case was submitted to the jury, which returned a verdict for the plaintiff in the sum of $4317. The defendant company filed a motion for a new trial, in which it asked that the verdict be set aside on the ground that it was against the manifest weight of the evidence; and, in the alternative, it asked that the court set aside the verdict and enter judgment in favor of the company for the claimed reason that the plaintiff's evidence raised an inference of contributory negligence on the part of the plaintiff, which was not removed, and which was the proximate cause of the accident.
The bill of exceptions shows that the plaintiff introduced evidence tending to show that the plaintiff's automobile was parked on the north side of Bramble avenue, in Madisonville, opposite Azalea avenue, and in front of his home. He had parked his car in front of his home while he ate lunch. After eating lunch, he went to the car and was proceeding to get ready to go back to his work in it. He testified that he looked both ways to see if there were any cars in sight, that while there was a rise in the street in the rear he could see for over 300 feet, and that he saw no automobile or other vehicle coming either way. He thereupon, in low speed, pulled out from the curb, and started to make the turn into Azalea avenue. He had reached the middle of the street, in which were two street car tracks, or was a little past the middle of the street, when he was struck in about midway of his automobile by the defendant company's car.
Just how these facts may be regarded as raising a presumption of contributory negligence, we are unable to see.
It is argued by counsel for the defendant company, plaintiff in error here, that its automobile must have been in clear view when the plaintiff started to turn out from the curb; that had it come from any considerable distance it would not have arrived at the place of the accident before the plaintiff's car would have been out of its path. The length of time the plaintiff would take to make the turn that he did is not clear, and the length of time it would take the defendant's car to come the three or four hundred feet in question would depend on the speed at which the company's car was travelling. Certainly these questions could not be passed upon as a matter of law.
In the case of Pence v. Kettering, 128 Ohio St. 52, 190 N.E. 216, the syllabus is:
"If the circumstances disclosed by the uncontradicted evidence are such that reasonable minds might reach different conclusions as to the inferences to be drawn therefrom and the ultimate facts established thereby, it is prejudicial error for the trial court to direct a verdict."
Our conclusion is that reasonable minds might reach different conclusions on the facts produced concerning the inference of contributory negligence, and the court was correct in overruling the motion for an instructed verdict.
The correctness of the court in setting aside the verdict as being contrary to the weight of the evidence is not before us.
The judgment of the Court of Common Pleas is affirmed.
Judgment affirmed.
ROSS and MONTGOMERY, JJ., the latter of the Fifth Appellate District, concur.