Summary
In Winkler, the Court reasoned that "where plaintiff herself makes admissions that her negligence contributed directly to her injury (one of the precise ultimate facts in issue) a question of law * * * is raised and the trial court has a plain duty to sustain a motion for directed verdict."
Summary of this case from Clements v. Lima Memorial Hosp.Opinion
No. 31024
Decided January 28, 1948.
Negligence — Directed verdict for defendant — Contributory negligence — Plaintiff's testimony an admission of negligence directly contributing to injury.
Where, in an action for personal injury, plaintiff's testimony amounts to an admission that she was guilty of negligence at the time and place, which contributed directly to her injury, it is the duty of the trial court to sustain a motion for a directed verdict in favor of defendant. (Paragraph four of the syllabus of New York Central Rd. Co. v. Stevens, Admr., 126 Ohio St. 895, approved and followed.)
APPEAL from the Court of Appeals for Franklin county.
Appellee, who will be referred to hereinafter as plaintiff, brought an action against the city of Columbus for personal injuries resulting from a fall on a defective sidewalk in broad daylight. The weather conditions were such that a person could see clearly. There were no bushes or shrubbery which tended to conceal the sidewalk. There was no obstruction of any kind to plaintiff's view. There was nothing wrong with her vision. Plaintiff was on her way home from market with packages in both hands. She had left a bus at the corner of Reinhard and Jaeger streets and proceeded north on the west side of Jaeger street.
Asked why she walked in the street on other occasions, plaintiff answered: "Because that one sidewalk on my side is bad and I was afraid." She also testified that the sidewalk on the west side (where she fell) was bad and in answer to the question: "You knew it had defects in it and that is the reason you walked in the street? A. Yes, sir."
She then was asked: "You had seen this particular defect before, hadn't you? A. I seen it, but I didn't take much notice, it wasn't so bad like the other side * * *."
In answer to the question: "So that when you approached this place at the time of the alleged fall, you did know and did see that it was the place that had been raised up, didn't you, before you reached it? A. Yes, I seen it, it was bad, but I didn't know it was that way, when I tried to step over it it caught me."
"Q. You could see it was in bad condition, you could see the defect as far as it showed, couldn't you? A. I could see some of it, yes, sir."
Plaintiff testified also as follows:
"Q. Now, this place where you fell, was that a cement walk? A. Yes, sir.
"Q. And did the cement come up to a raised position? A. It raised up, yes, sir.
"Q. So that it sloped up to a raised position on both sides, didn't it? A. Yes, sir.
"Q. That raised position was the connection where there was a crease, or whatever you call it, that had been put in the cement, that is where it was raised up, wasn't it? A. Yes, sir.
"Q. How much higher would you say that the top of that raised part was than the rest of the sidewalk? A. I couldn't tell you, when I stepped on it it tilted and throwed me, that is all I know, I tried to step over, and I stepped on the corner, it tilted and caught my foot and throwed me; I don't know nothing else."
At the close of plaintiff's evidence the city moved for a directed verdict.
In the course of the opinion on such motion the trial court, inter alia, said:
"The testimony is that the sidewalk is constructed of cement slabs, and that at the point of the injury, the point where the injury occurred, one or two of the slabs had settled about three or four inches, and that according to the testimony * * * this condition had existed for about one year.* * * The evidence further discloses that the plaintiff knew of the condition which the court has just described prior to the day of the accident, and that on the day of the accident as she approached the point in question she did see the condition which hag been alleged. The evidence is further that at the time in question the sidewalk was dry, and that it was broad daylight; that the plaintiff was carrying a box similar in size to a small suit box and a purse in her left arm and held against her body, and was carrying a market bag in her right hand. According to her own testimony, however, the position of the packages was not such that it would impair her view of the sidewalk.
* * * * *
"The rule, therefore, seems to be well settled in this state that one who walks upon a sidewalk which he knows was dangerous, or which ordinary and reasonable care would inform him was dangerous, assumes the risk, that is to use the language of the Supreme Court, 'takes the risk of such injuries as may result to him by open and apparent defects.'
"It is the court's opinion that this rule of law is directly applicable to the situation under consideration, directing our attention solely to the condition as alleged in the petition, namely, a depression of three or four inches, coupled with the fact that the plaintiff herself has testified that she knew of said condition, and that on the day in question and as she approached the place where she fell she again saw the condition. * * * it is quite clear that since the plaintiff not only knew of the condition but saw it on the day in question and walked upon it in broad daylight knowing of the condition, that the rule laid down in the Sorna case would make it mandatory upon this court to sustain the motion for directed verdict.
"We are therefore led to this conclusion, that if it can be maintained that the condition as alleged and described by the evidence was the proximate cause of the plaintiff Is fall and injuries, then the rule enunciated in the Sorna case applies, and the plaintiff is held to have assumed the risk in walking upon the sidewalk in broad daylight, knowing of the defect and seeing it on that day. If we adopt a liberal interpretation of the petition, and assume that the tilting of a part of the sidewalk was the proximate cause of the plaintiff's fall and subsequent injuries, then we are led to the conclusion that there is no evidence in the case at all of any notice to the city of any kind of this particular condition.
* * * * *
"The motion, therefore, is sustained, and the court will direct the jury to return a verdict."
A review of the record sustains the foregoing factual recitation contained in the trial court's opinion on the motion to direct a verdict.
Upon appeal to the Court of Appeals that court considered the question presented as: "Did the court err in holding that upon the evidence adduced by the plaintiff, she was not entitled to go to the jury. This involves two propositions, the first, was there probative evidence of the negligence of the defendant, if so, does the contributory negligence of the plaintiff appear as a matter of law?"
The Court of Appeals reversed the judgment of the, trial court and remanded the case to the Court of Common Pleas.
Mr. James F. Henderson and Mr. Russ Bothwell, for appellee.
Mr. Richard W. Gordon, city attorney, Mr. Hugh K. Martin and Mr. Edward J. Cox, for appellant.
Assuming for the purpose of this decision that the defendant city was guilty of negligence, we are of the opinion that the record clearly discloses negligence on the part of plaintiff. Such negligence was not dispelled. Therefore, the decision of this case depends upon whether such negligence of plaintiff contributed directly to her injury.
In the case of Highway Construction Co. v. Sorna, 122 Ohio St. 258, 171 N.E. 312, relied upon by the trial court, it was held in paragraph one of the sylabus:
"One using a sidewalk, crosswalk, street or highway, which ordinary and reasonable care would inform him was dangerous, takes the risk of such injuries as may result to him by open and apparent defects, such as his observation ought to have detected and avoided."
Where one steps on an apparently good sidewalk but owing to some hidden defect an injury occurs, a plaintiff may be justified in claiming a "latent defect," but where the step is taken on an obviously defective walk we see no justification for attempting to distinguish between apparent and latent defects of such walk. In this case plaintiff deliberately stepped upon a walk which she saw and realized was a defective walk. Certainly the tilting of a piece of concrete in a defective walk is not an unusual concomitant of a defective walk. When plaintiff stepped upon such piece of concrete in a defective walk she took the risk.
We have no criticism of the rule stated by the Court of Appeals in its opinion that upon motion for a directed verdict the trial court is required to give the most favorable intendment to plaintiff's whole evidence. That is a well settled rule. But where plaintiff herself makes admissions against interest during her cross-examination which admissions show clearly that her negligence contributed directly to her injury (one of the precise, ultimate facts in issue) a question of law and not of fact is raised and the trial court has a plain duty to sustain a motion for a directed verdict. Both paragraphs of the syllabus of Pope, Admx., v. Mudge, 108 Ohio St. 192, 140 N.E. 501, should be limited to the peculiar facts of that case.
We are of the opinion that the Court of Appeals labored under a misapprehension as to the quality of the evidence adduced from plaintiff while on the stand. Evidently the court's attention was not called to the fact that plaintiff's answers on cross-examination constitute admissions against interest or as it is sometimes called, judicial admissions.
The Court of Appeals assumed that because plaintiff testified one way in chief and contrarily on cross-examination, the case should be left to the jury to choose between her conflicting statements. That would be proper in the case of an ordinary witness, but where the testimony involved is that of the plaintiff and the plaintiff's testimony whether in chief or cross-examination, discloses negligence on the part of plaintiff contributing directly to her injury the fact has been settled and the matter becomes a question of law to be determined by the court.
In the case of New York Central Rd. Co. v. Stevens, Admr., 126 Ohio St. 395, 185 N.E. 542, 87 A. L. R., 884, this court held in paragraph four of the syllabus, as follows:
"In an action for damages for personal injuries, where plaintiff's own testimony will warrant no inference but that his own want of due cafe contributed, proximately to causing the injury, there can be no recovery, and a motion directing the jury to return a verdict for the defendant should be sustained."
In the case of E. Kahn's Sons Co. v. Ellswick, 122 Ohio St. 576, 5791 172 N.E. 668, this court in the course of the per curiam opinion said:
"This court does not pass on the weight of the evidence. We have, however, examined with much care Ellswick's own testimony manifest in the record, and by this examination we are driven to the conclusion that his own negligence directly, proximately, and very substantially contributed to the production of the injuries he received." See, also, Cleveland, Cincinnati, Chicago St. Louis Ry. Co. v. Lee, Admr., 111 Ohio St. 391, 145 N.E. 843.
From the evidence set out in the foregoing statement of facts we are of the opinion that plaintiff was clearly guilty of negligence which contributed directly to the injury which she received. Such admissions by plaintiff raised a question of law to be decided by the trial court and not to be submitted to the jury.
We do not reach the other questions raised.
Therefore, the judgment of the Court of Appeals should be and hereby is reversed and the judgment of the Common Pleas Court is hereby affirmed.
Judgment reversed
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.