Hill v. Union Gas & Electric Co. (51 Ohio App. 144, 1935)

Matthews, J.

The parties occupy the same relative positions in this court that they held in the trial court, and will be referred to in this opinion as they stood in the court below.

At the close of the plaintiff’s evidence the defendant, The Union Gas & Electric Company, moved for an instructed verdict. The trial court was of the opinion that the evidence was insufficient to warrant the submission of the case to the jury under the rule announced in Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246, which abolished the scintilla rule and substituted therefor the rule that “Upon motion to direct a verdict the party against whom the motion is made is entitled to have the evidence construed most strongly in his favor. But if upon any essential issue, after giving the evidence such favorable construction, reasonable minds can come to but one conclusion and tbat conclusion is adverse to such party, the judge should direct a verdict against him.” For that reason the motion was sustained. Judgment was rendered for defendant, and the case is now before this court on error.

The action was one for damages on account of personal injuries received by the plaintiff in a collision between an automobile operated by him and an automobile operated by an employee of the defendant, The Union Gas & Electric Company. The collision occurred in the city of Cincinnati, on Bramble avenue, where its south side is intersected by Azalea avenue. Both avenues are public streets in the city of Cincinnati. Two street car tracks occupy the center portion of Bramble avenue, which runs east and west. Azalea avenue runs southwardly from Bramble avenue. The plaintiff parked his automobile facing westwardly near the curb on the north side of Bramble avenue, and went into his son-in-law’s house, located on the north side of Bramble facing Azalea avenue. He came out of the house, got in his automobile, and started to malm a turn for the purpose of going eastwardly on Bramble avenue. There is considerable evidence as to just when and how many times, and in what directions, plaintiff looked as he was turning. On direct examination he said he looked eastwardly twice, and, on cross-examination, he said he looked a third time as he was crossing the westbound car track. He testified that when the collision occurred his automobile had reached a point south of the center line of Bramble, near a manhole shown on a plat of the situation introduced in evidence. A witness, Bradshaw, corroborated him in all substantial respects as to the place of the accident. This witness was sitting at an open window of a house located at the southeast corner of Bramble and Azalea avenues. While he was not positive in locating the place of the accident as south of the center line- of Bramble avenue, it is manifest that it was Ms intention to testify that tbe impression made upon bim at tbe time be saw tbe automobiles in collision was that they were south of the center line of that street.

A third automobile was parked on tbe south side of Bramble avenue, from 40 to 50 feet east of where tbe plaintiff’s automobile was parked, just before plaintiff started to make tbe turn. It obstructed tbe view somewhat along Bramble avenue. Bramble avenue ascends for 190 feet toward tbe east, and then descends. An automobile approaching from tbe east on Bramble avenue could be seen, no obstruction being present in tbe street, by a person located where tbe plaintiff’s automobile was parked when it was 275 feet away.

Tbe plaintiff testified that be looked at least twice toward tbe east when bis view was unobstructed, and that he saw no automobile approaching!

Tbe defendant’s automobile was operated over Bramble avenue from tbe east to tbe point of collision. No witness saw tbe defendant’s automobile for any appreciable time before tbe collision. No witness testified to tbe speed at which it was moving, or its course in tbe street, except right at tbe point of collision and after tbe collision occurred.

From tbe testimony of witnesses, and tbe photographs, it is deducible that tbe defendant’s automobile struck tbe left side of tbe plaintiff’s automobile just back of tbe left front wheel, and scraped along tbe left side to tbe back of tbe automobile. It is deducible from this that at tbe time of tbe collision tbe plaintiff’s automobile was facing in an easterly or southeasterly direction.

Tbe principal ground urged in support of tbe judgment is that the evidence construed most favorably to tbe plaintiff discloses that tbe collision was caused either by bis sole or contributory negligence. Reliance is placed upon Detroit, Toledo & Ironton Rd. Co., v. Rohrs, 114 Ohio St., 493, 151 N. E., 714; Buell, Admx., v. New York Central Rd. Co., 114 Ohio St., 40, 150 N. E., 422; Michalec, Admr., v. Hutchison, 123 Ohio St., 494, 176 N. E., 79; Youngstown & Suburban Ry. Co. v. Faulk, 118 Ohio St., 480, 161 N. E., 530, and other cases stating the rule and the duty of the trial court when no reasonable conclusion other than the negligence of plaintiff can be drawn. Of course, there is no doubt about the rule or the duty of the court. The difficulty here, as in most cases, is in the application of the rule.

It seems to us that in this case the problem can be solved by a consideration of the statutory rules of traffic, Sections 6310-15 to 6310-37, General Code, and particularly Sections 6310-17 and 6310-22, General Code.

The plaintiff’s automobile was stationary on the north side of Bramble avenue. He entered it intending to turn to the south side of the street and then go east. His duty in that situation was defined by Section 6310-22, General Code, which provides:

“Drivers of vehicles before turning, stopping or changing their course shall make sure such movement can be made in safety and shall cause signals to be made of their intention in a way visible outside the vehicle. ’ ’

Now did this section impose an absolute duty upon the plaintiff, so that in turning, stopping, or changing his course he acted at his peril? We think not. It does require him to “make sure such movement can be made in safety.” What does that mean?

There are many shades of meaning given to the word “sure” in the dictionaries. The primary meaning, however, is “Assured in mind; confident beyond doubt; knowing, believing, trusting, or the like, with certainty; unquestioning.” Webster’s New International Dictionary. It is therefore a state of mind. If he has that state of mind, then the duty imposed by the statute is discharged, provided the conclusion is predicated upon the acts and observations required in making sure that the movement can be safely made. If the required acts are done, and observations made showing that the conditions then existing permit the movement to be made safely, the terms of the section have been complied with. The fact that through some extraordinary development, or the failure of others to observe the law, the movement was not, in fact, made safely, has no tendency to prove that the terms of the section had not been complied with. In reaching a conclusion as to whether the turn could be made safely the plaintiff has a right to assume that the defendant would not approach the location at an unlawful speed, and that defendant’s automobile would be and remain on the right side of the street. Plaintiff had a right to assume that if he passed the center line of the street he would have nothing to fear from automobiles approaching from the east.

It is provided by Section 6310-17, General Code, that:

“Vehicles shall keep to the right side of the center of center line of the road or highway except as otherwise provided herein.”

That section prescribed the duty of the defendant, which the plaintiff had a right to assume would be performed, until he became aware that the defendant did not so intend, or was failing to perform. In failing to observe the statute the defendant was negligent as a matter of law. Schell v. DuBois, Admr., 94 Ohio St., 93, 113 N. E., 664, L. R. A., 1917A, 710; Cleveland Ry. Co. v. Kuncic, 27 Ohio App., 47, 160 N. E., 734.

While some items point more clearly than others to the fact that the defendant’s automobile was on its left side of the street, whatever probative force the different items of evidence possessed was to that effect. We think this evidence was substantial. The witnesses so testified. They identified the location of the collision by fixed objects, placing it south of the center of the street. In addition to this, the fact that the plaintiff’s automobile was struck on its left side indicates that it was facing, at least somewhat, in the direction from which the defendant’s automobile approached. This tends to show that the plaintiff’s automobile was south of the center of Bramble avenue at the time of the collision. In the absence of any countervailing evidence, we certainly cannot say that reasonable minds could draw but one conclusion from this evidence, and that that conclusion would be that the plaintiff was north of the center of the street at the time. Apparently the assurance of safety with which the plaintiff engaged in the act of turning would have been justified by the event had not the defendant violated the law. No inference of plaintiff’s negligence directly contributing arose. In that situation, Hamden Lodge v. Ohio Fuel Gas Co., supra, required that the cause be submitted to the jury.

For these reasons the judgment is reversed, and the cause remanded to the Court of Common Pleas of Hamilton county for a new trial.

Judgment reversed and cause remanded,

Boss, P. J., and Hamilton, J., concur,