Opinion · Ohlaw Ohio
WHITE v. POWER CO., 171 Ohio St. 148 (1960)
168 N.E.2d 314
- Type
- Opinion
- Court
- Ohlaw Ohio
- Jurisdiction
- Ohlaw
- Date
- 1960-06-15
- Topic
- general
WHITE v. POWER CO., 171 Ohio St. 148 (1960) 168 N.E.2d 314 WHITE, APPELLEE v. THE OHIO POWER CO., APPELLANT. No. 36322Supreme Court of Ohio. Decided June 15, 1960.
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UpLaw has not yet analyzed WHITE v. POWER CO., 171 Ohio St. 148 (1960). The absence of a flag is not a finding that it is good law.
WHITE v. POWER CO.,171 Ohio St. 148(1960)
168 N.E.2d 314
WHITE, APPELLEE v. THE OHIO POWER CO., APPELLANT.
No. 36322
Supreme Court of Ohio.
Decided June 15, 1960.
1. Where in an action arising from a motor vehicle collision there is evidence of negligence on the part of the defendant and of contributory negligence on the part of the plaintiff, which contributory negligence may have continued to the moment of impact, a jury question exists as to whether such negligence of the plaintiff proximately contributed to the collision.
2. The negligence per se of a driver in double parking his vehicle in violation of a municipal ordinance is not as a matter of law the proximate cause of an accident occasioned when said vehicle is struck by a negligently operated second vehicle.Page 149
The plaintiff brought this action to recover damages for personal injuries allegedly suffered when a truck owned by the defendant and operated by its servant in the course of his employment came in contact with a delivery truck upon the bed of which plaintiff was standing. In his amended petition plaintiff alleges that the delivery truck was double parked, and that his injuries and damages were directly and proximately caused by the negligence of defendant's servant in operating its truck without maintaining an assured clear distance ahead, without due regard for the safety of the life and limb of plaintiff and in failing to exercise ordinary care so as not to injure plaintiff.
Defendant's second amended answer admits its servant's operation of the truck, and that its truck "touched" the double-parked truck on which plaintiff was standing. The defendant then pleads Section 19, Article V of the Code of the City of Ironton, Ohio (in which city the occurrence took place), which provides that it shall be unlawful for the operator of a vehicle to stop, stand or park it under certain circumstances, and alleges that at the time of the occurrence complained of the truck upon which plaintiff was standing was double parked in violation of said ordinance, and that his so parking of the truck was the sole cause of his injuries. Plaintiff's reply admits the existence of the ordinance but alleges that his injuries were directly and proximately caused by the defendant's servant's negligence and denies that he himself was negligent in any manner so as to proximately and directly cause his injuries.
Trial of the cause to a jury resulted in a verdict and judgment for the plaintiff.
Appeal to the Court of Appeals resulted in the granting of a remittitur, which plaintiff accepted, and the entry of judgment against defendant in a reduced amount.
The cause is before this court by virtue of the allowance of defendant's motion to certify the record. The parties will herein be designated as they were in the trial court.Page 150
The second assignment of error is that the verdict and judgment are not sustained by any evidence, but defendant's argument orally and in the brief in this regard complains only of a lack of evidence as toplaintiff's injury.Beyond all question, such evidence as there is as to injury possesses fragility as it appears on the printed pages of the record, but appear it does, and we cannot therefore hold as a matter of law that the claim of injury is without evidentiary support. A third assignment is that the verdict was excessive. Considering this and the preceding assignment, Judge Collier, speaking for the Court of Appeals, observed, "As we view this record, the plaintiff has established a very weak case, both as to liability and amount of damages." After commenting further on the temporary nature of plaintiff's injuries and the small amount of special damages, the Court of Appeals affirmed the judgment on condition that plaintiff accept a remittitur amounting to one half of the verdict and original judgment, and this remittitur was accepted by plaintiff. It therefore becomes unnecessary to consider whether theverdictwas excessive.
The remaining assignment of error is as follows:
"The court should have enteredjudgmentin favor of defendant-appellant and against the appellee, since the plaintiff-appellee was guilty of contributory negligence as a matter of law, which contributory negligence continued up until the very end." (Emphasis supplied; no motion for judgment was presented to the trial court.)Page 151
The question of the existence of negligence on the part of the defendant creates no problem because, as is pointed out in the defendant's brief, "in its answer, the defendant admits that its agent and employee drove into and upon the vehicle of the plaintiff." Similarly, there is no question that the plaintiff was guilty of contributory negligence, because the court charged the jury that, in violating the ordinance by double parking the truck, "he would be guilty of negligence, per se, or negligence as a matter of law." The court then went on to properly charge that if the jury found that plaintiff's negligence in parking the truck in violation of the ordinance "was the proximate cause of this accident, then the plaintiff would not be entitled to recover." In view of this charge, it will be recognized that the jury by its verdict found that plaintiff's negligence was not the proximate cause of the occurrence. This is in accordance with the rule summarized as follows in 6 Ohio Jurisprudence (2d), 532, Section 284: "Manifestly the contributory negligence of a plaintiff, to bar a recovery, must contribute as a proximate cause of his own injury. The negligence of the plaintiff may be concurrent with the negligence of the defendant and not be, strictly speaking, a proximate cause of injury."
We have pointed out that the jury by its verdict established that the plaintiff's contributory negligence was not proved to have been the proximate cause of the accident, and it will be further observed that the court's charge also included the following:
"In order for the plaintiff to recover in this case, he must prove by a preponderance of the evidence one or more of the allegations of negligence contained in his petition and must also prove that such acts of negligence, if any, were theproximatecauseof the accident and resulting injury. If plaintiff has not proved these things, then he has failed and your verdict must be for the defendant and your duties will be at an end." (Emphasis supplied.)
In view of this charge, it will be seen that the jury affirmatively found that plaintiff's injuries were proximately caused by the negligence of the defendant's servant.Page 152
It follows from the foregoing that the judgment of the Court of Appeals must be affirmed.Judgment affirmed.
ZIMMERMAN, MATTHIAS and BELL, JJ., concur.
WEYGANDT, C.J., TAFT and HERBERT, JJ., dissent.