Opinion
No. 74-464
Decided May 21, 1975.
Negligence — Motor vehicle — Pedestrian in lane of travel — Contributory negligence of plaintiff's decedent — Court to direct verdict for defendant.
Where the record in a negligence action, construed most favorably toward the absence of negligence on the part of the plaintiff's decedent, is susceptible of no other reasonable inference than that of negligence on his part, proximately contributing to his injury and death, the question of contributory negligence ceases to be a question of fact for the determination of the jury, and it is the duty of the court in such a case to direct a verdict for the defendant. (Paragraph two of the syllabus in Ziebro v. Cleveland, 157 Ohio St. 489, approved and followed.)
APPEAL from the Court of Appeals for Erie County.
This cause arose out of an automobile-pedestrian collision occurring on Saturday, October 18, 1969, at approximately 2:30 p.m., involving Thomas M. Remmel, driver of the vehicle, and plaintiff's decedent, George A. Wiedle.
The transcript of testimony taken at the trial of this action establishes the following facts.
Plaintiff's decedent, an elderly man, stepped on a two-lane highway in front of his residence to pick up a dead cat. The cat was approximately two feet north from the edge of the berm on the paved portion of the eastbound lane of the highway. The defendant was approaching from the west, approximately 100 yards away from the decedent and in clear view of him, when the defendant first observed the decedent stepping out from the berm. Defendant testified that he was traveling at approximately 50 miles per hour at that time, that the pavement was dry, the day sunny, and that there was no oncoming traffic. The testimony indicates that, when defendant was approximately 70 or 80 yards from the decedent, decedent bent over to pick up an object from the highway. At this time, defendant had taken his foot off the gas pedal and estimated that he was traveling at a speed of 30 or 35 miles per hour. When the distance from the decedent to defendant's vehicle was approximately 50 feet, decedent stood up, turned, and faced defendant's vehicle. At this time, defendant was still traveling approximately 30 to 35 miles per hour. Defendant had "eased" to the center part of the highway to give the deceased plenty of room if he had remained stationary. Defendant testified that, at that time, he could have braked his car, but he did not because he had no reason to believe that the deceased would continue into his lane of travel. Subsequently, when the distance between the two was approximately ten to 15 feet, the deceased "half lunged" or "fell," or otherwise moved over into defendant's line of travel. Defendant swerved to the left into the westbound lane and applied the brakes on his vehicle. The deceased was struck by the mirror on the passenger's side of defendant's vehicle. Defendant proceeded another 30 to 40 feet in the westbound lane until he had stopped his vehicle. The deceased's body was lying on the center line, with the greater portion of his body in the westbound lane. (The Sandusky County sheriff's department conducted an investigation of the accident, but did not issue a citation.)
At the close of plaintiff's evidence, defendant moved for a directed verdict, which was overruled. The jury returned a verdict for plaintiff in the sum of $8,000, upon which the Court of Common Pleas entered judgment. Defendant's motions for new trial and for judgment notwithstanding the verdict were overruled.
Defendant, in an appeal to the Court of Appeals, assigned as error the following:
"1. The court erred in failing to direct a verdict and render final judgment for the defendant and in overruling defendant's motion for judgment notwithstanding the verdict.
"2. The court erred in failing to grant defendant's motion for a new trial.
"3. The damages were excessive.
"4. The judgment was not sustained by the weight of the evidence."
The Court of Appeals, one judge dissenting, overruled assignments of error Nos. 1 and 2. Assignment of error No. 3 wwas accepted upon the basis that, as a matter of law, it was error to submit to the jury, under the fact situation in this case, the element of pecuniary loss exceeding the damages stipulated in the amount of $5,516. Two judges likewise held that the judgment on the jury verdict was against the weight of the evidence but reversal of a jury verdict on the weight of the evidence by a Court of Appeals requires "the concurrence of all three judges hearing the cause," pursuant to Section 3(B) ( 3) of Article IV of the Ohio Constitution.
Accordingly, the majority of the Court of Appeals rendered a decision reversing the judgment of the Court of Common Pleas and ordering a new trial, "* * * unless the plaintiff accepts, in writing, a remittitur of $2,484 within ten days of this judgment entry and filed in this case and in the event plaintiff accepts such remittitur as provided herein, the judgment in the sum of $5,516 is affirmed, and this cause is remanded to the Court of Common Pleas for further proceedings according to law * * *."
Plaintiff accepted the remittitur, and thereafter the judgment of the Court of Common Pleas was affirmed.
The cause is now before this court pursuant to the allowance of defendant-appellant's motion to certify the record.
Messrs. Catri, Howells, Wagner Kellam and Mr. John F. Kirwan, for appellee.
Flynn, Py Kruse Co., L.P.A., and Mr. Raymond N. Watts, for appellant.
Appellant propounds three propositions of law for this court's consideration.
Appellant maintains, in his first proposition of law, that decedent was guilty of contributory negligence as a matter of law, where, as here, he stepped upon a public highway outside a municipal corporation in daylight with an approaching vehicle in clear view and was thereafter struck by such vehicle. We disagree.
Appellant relies upon R.C. 4511.49, which requires, in part:
"Pedestrians shall not step into or upon a public road or highway without looking in both directions to see what is approaching."
Violation of R.C. 4511.49 constitutes negligence per se. Wolfe v. Baskin (1940), 137 Ohio St. 284, construing former analogous G.C. 6310-36. There is, however, no presumption of negligence against either party to an accident except such as arises from the facts proved. Norris v. Jones (1924), 110 Ohio St. 598; Bush v. Harvey Transfer Co. (1946), 146 Ohio St. 657; 6A Ohio Jurisprudence 2d 463, Automobiles, Section 407. In the absence of evidence to the contrary, a pedestrian crossing a street at an intersection is presumed to have obeyed the law requiring him to look in both directions before crossing. Leach v. Nanna (1955), 100 Ohio App. 26; 6A Ohio Jurisprudence 2d 463, Automobiles, Section 406.
In the present case, there is no evidence in the record indicating whether decedent looked in both directions to see if vehicles were approaching as required by R.C. 4511.49. In fact, the record discloses that the decedent was stepping out into the highway at the time appellant first observed him from a distance of 100 yards. The object which decedent picked up was only two feet out on the paved portion of the highway, and it is not unreasonable for the decedent to have believed he could pick it up and step back before appellant's vehicle approached, if indeed it was visible when he stepped out. In any event, absent evidence rebutting it, the presumption exists that there was an exercise of ordinary care on the part of the plaintiff in obeying the pertinent provisions of R.C. 4511.49.
Appellant, in his second proposition of law, alleges the same facts as stated above but adds the uncontroverted facts that the deceased, having picked up the object, turned and looked toward appellant's vehicle and then proceeded north across the highway into its path. Appellant maintains that these facts raise an inference of decedent's negligence, proximately contributing to his injuries and death, and that appellant was entitled, in the court's general charge on the burden of proof of contributory negligence, to the qualification that plaintiff has the burden of producing evidence to equal or balance such inference, and that the failure of the court to so instruct the jury at plaintiff's request constitutes reversible error. We agree with appellant's proposition of law No. 2, but we hold that the trial court erred in refusing to grant appellant's motion for judgment notwithstanding the verdict.
In the present case, the record is clear and indisputable that: The road was approximately 20 feet wide; decedent, upon picking up the object located two feet out on the highway from the berm, looked at appellant's approaching vehicle; appellant steered his vehicle to the left into the oncoming westbound lane to give decedent clearance; decedent suddenly and inexplicably "half lunged" or "fell," or otherwise moved across the eastbound lane from where he was standing into appellant's line of travel; appellant was traveling below the statutory speed limit at the time of the accident; and decedent's body was found situated partly in the oncoming westbound lane.
The decedent's actions, from the point in time when he stood up with the object in his hands, approximately two feet from the safety of the berm, looked at appellant's vehicle and proceeded across the eastbound lane into its path, give rise to an inference of lack of ordinary care on his part, constituting negligence. It was this sudden movement into the line of travel appellant had taken to avoid him that directly and proximately caused decedent to be struck by appellant's vehicle. There is no evidence in the record controverting or explaining this course of action by the decedent.
Therefore, "* * * giving to every portion of the plaintiff's evidence the most favorable interpretation in favor of the absence of negligence on his part, such evidence under such interpretation is susceptible of no other reasonable inference than that of negligence on his part, directly and proximately contributing to his injury, the question of contributory negligence ceases to be a question of fact for the determination of the jury, and it is the duty of the court in such case to direct a verdict for the defendant. * * *" (Paragraph two of the syllabus in Ziebro v. Cleveland, 157 Ohio St. 489.)
It is not necessary to consider appellant's third proposition of law, relating to the trial court's instruction upon appellant's speed, since we hold, as a matter of law, that the plaintiff-appellee's decedent was contributorily negligent as asserted in Proposition of Law No. 2.
The judgment of the Court of Appeals is reversed and final judgment entered for the defendant.
Judgment reversed.
O'NEILL, C.J., HERBERT, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.