Barkac v. Russell (44 Ohio App. 87, 1932)

Washburn, J.

The record ill this case discloses that Paul Barkac sued George E. ‘Bussell to recover damages for injuries which Barkac received by being struct by a car driven by Bussell while Barkac was attempting to cross a public highway in the country. The trial resulted in a verdict and judgment in favor of Bussell.

The accident occurred at a place where there was no crossing, in broad daylight, on a bright, clear, dry day, and while there was no traffic approaching the scene of the accident from either way except the car driven by defendant Russell.

Barkac and a friend of his were walking on the right-hand side of the road on the cinder berm, close to the edge of the improved portion of the road, and Russell was driving his car in the same direction and on the right hand portion of the improved part of the road. Russell saw Barkac and his friend some distance ahead, and had them in view and closely observed them up to the time of the accident.

At the place of the accident, where Barkac and his friend determined to cross the road, both stopped on the cinder berm where they had been walking, both looked and saw the Russell car approaching, and both of them testified that they estimated the speed of the car at 45 miles an hour, and that it was at a distance of some 250 feet from them. They then had some conversation as to whether the car was far enough away to make it safe for them to cross, and the friend of Barkac remained standing on the berm, but Barkac started across, and, according to the clear weight of the evidence, he was hit before reaching the center of the improved portion of the road, although he testified that he was just past the center of the road at the time he was hit.

Up to the time just before Barkac was hit, Russell’s car was being driven in its proper place on the right-hand side of the center of the improved portion of the road, but just before the accident it was turned sharply to the left, or to the center of the road, and continued on to the other side of the road, where it was stopped within 15 to 25 feet of the place of accident. There is a conflict in the evidence as to the speed at which the automobile was traveling, and, according to the claim of Russell, which was supported by evidence, there were other facts which tended very strongly to support the contention that Russell was not negligent at all, and that Barkac was grossly negligent; but we make no mention of such other facts, because they were disputed, and for the further reason that, in view of the conclusion which we have reached in this case, it is unnecessary to pass upon the errors complained of in reference to the issue of contributory negligence.

One of the claimed errors, and perhaps the chief error that is claimed in reference to the issue whether Bussell was negligent, is the refusal of the court to charge the jury that by the provisions of Section 6310-22, General Code, drivers of vehicles, before turning, stopping, or changing their course, are required to cause signals to be made of their intention in a way visible outside of the vehicle.

We think that under no construction of the facts as shown by the record in this case was that law applicable, and that therefore the trial court did not commit error in refusing to charge the same.

There are several matters about which complaint is made in reference to the charge of the court and the admission and rejection of evidence by the court, which relate to, and should be considered upon, the question whether there was any error by the court in the submission of the issue as to the negligence of Bussell.

We do not feel that it is necessary for us to refer to, or discuss in detail, any of said claimed errors. We have given them very careful consideration, and have unanimously reached the conclusion that the issue as to negligence on the part of Bussell was fully, fairly, and without prejudicial error submitted to the jury, and, further, we conclude that a finding by the jury that Bussell was not negligent is not only not manifestly against the weight of the evidence, but that any other finding would be against the weight of the evidence.

The Supreme Court in Knisely v. Community Traction Co., 125 Ohio St., 131, 180 N. E., 654, having recently very explicitly determined that the two-issue rule is applicable in a case like this, we are not called upon to express any opinion as to the other errors complained of, which relate to the subject of contributory negligence of Barkac; but we think it is proper to say to counsel that a finding of the jury that Barkac was guilty of contributory negligence would likewise be not only not against the weight of the evidence, but that any other finding on that issue would be against the weight of the evidence.

Upon the whole record, then, we find no prejudicial error that would justify this court in setting aside the judgment that was rendered in the common pleas court, and that judgment is therefore affirmed.

Judgment affirmed.

Pardee, P. J., and Funk, J., concur.