Bohnenkamp v. Hibberd (70 Ohio App. 278, 1941)

Ross, J.

This case is here on appeal on questions ■of law from a judgment of the Common Pleas Court, in which a verdict was instructed for the defendant at the close of plaintiff’s evidence.

In the petition the plaintiff charged that her decedent lost her life by being struck by a taxicab operated by the defendant in a negligent, reckless manner, and at a high and dangerous rate of speed, contrary to the state law and the ordinances of the city of Cincinnati, which were pleaded. The plaintiff also alleged that the defendant failed to concede the right of way upon a crosswalk to the decedent, who was a pedestrian thereon, also contrary to an ordinance of the city of Cincinnati.

In the answer the defendant admitted the capacity of plaintiff as administratrix and that the taxicab operated by him collided with the body of decedent, and denied all other allegations.

Unfortunately for the plaintiff there was no eyewitness to the tragedy produced as a witness. The task of this court is made more burdensome by reason of the trial technique adopted by plaintiff in causing witnesses to refer to a blackboard sketch, which is in no way presented in the record. Some considerable effort was made to cause the evidence to describe locations, but still it is impossible to know where a witness is pointing or what is meant by “here” and ‘ ‘ there. ’ ’

From the record it appears that decedent was a passenger upon a bus from which she alighted at about 9:30 p. m., December 10, 1939, on the south curb of Dale road, some few feet west of the east line of Laconia avenue, which terminates in Dale road. As near as can be determined from the record the decedent’s position when so alighting was approximately opposite the end of the west sidewalk of Laconia avenue. There is a crosswalk from the south to the north curb of Dale road at this point. There is no direct evidence of what the decedent did from this point on.

A witness who resided on the south side of Dale road and the west side of Dwyer avenue, which extends southwardly from a point approximately opposite the east side of Laconia avenue, while in her home heard a “thump” and going to the door of her home saw a taxicab stopped on the north side of Dale road and some few feet east of Laconia avenue. As the witness was observing this situation, tbe taxicab backed out •toward tbe center of Dale road disclosing tbe body of tbe decedent lying in the gutter near tbe north curb of Dale road.

Tbe body of decedent lay in a pool of blood and tbe tires of the cab caused bloody tracks. from tbe decedent’s body to where tbe cab stopped.

Tbe driver upon being charged with having billed a man said that it was a woman. Further statements of tbe driver to tbe police were excluded and no profert appears as to what such statements were. A pair of .glasses belonging to decedent was found in tbe vicinity of tbe crosswalk near tbe north curb of Dale road. Her shoes were knocked off her feet.

There is evidence both in testimony and photographs ■of a large dent in tbe side of tbe hood somewhat to tbe rear of tbe right front fender. Tbe front of tbe machine showed quantities of blood smear. A speed ■of 35 miles an hour is admitted to be a presumptive reasonable speed at tbe point where tbe collision occurred. Tbe distance from where tbe decedent’s .glasses were found to tbe point where her body rested was 85 feet.

Tbe skull of decedent was fractured, both her legs were broken and she was otherwise lacerated, cut and bruised. She was pronounced dead on arrival at tbe hospital a few minutes after tbe collision.

As an examination of this record is approached, certain rules of law applicable to the consideration of tbe action of tbe court in instructing a verdict must be borne in mind.

In tbe first place, both decedent and tbe defendant’s ■employee, tbe taxicab driver, are clothed with a prima facie presumption attributing to each tbe exercise of reasonable care. This rule has been repeatedly noted as appears from the cases cited in the note in 29 Ohio Jurisprudence, 625, Section 149:

“ As indicated in the preceding section, it is generally-declared that negligence is never presumed. On the contrary, the presumption exists that each party was in the exercise of ordinary care, and that neither was negligent, and each party has the benefit of such presumptions. Such presumptions must prevail until overcome by proof. The law presumes that persons upon whom the duty of exercising care is imposed do, in fact, exercise such care. Where nothing more than ordinary care is required, the exercise, of that degree of care will be presumed.

“The existence of the presumption that individuals exercise ordinary care has been attributed to the law of self-preservation, and the general disposition among-men to preserve their property, to avoid difficulty and danger, and escape the liability to which the want of care and diligence would naturally subject them.”

See, also, Troop A Riding Academy v. Miller, 127 Ohio St., 545, 189 N. E., 647. At page 549 of the opinion the court says:

“It is hornbook law that negligence is not presumed in the absence of proof from which negligence may be inferred. In the absence of such proof, a party is entitled to the benefit of the presumption that he was free from negligence. Martin, Jr., v. Heintz, 126 Ohio St., 227, 184 N. E., 852.”

See, also, Lang, Admx., v. Penna. Rd. Co., 59 Ohio App., 345, 18 N. E. (2d), 271. In the next place, in considering the evidence of the plaintiff, the rule is stated in the third paragraph of the syllabus in Martin, Jr., v. Heintz, 126 Ohio St., 227, 184 N. E., 852, as follows:

“Upon a motion for a directed verdict the evidence must be given an interpretation most favorable to the plaintiff, and a directed verdict should be refused if a reasonable inference of due care may be drawn from the evidence adduced.”

Again, the same rule is stated in 39 Ohio Jurisprudence, 802, Section 183:

“The trial judge, in ruling upon a motion, to direct a verdict or for a nonsuit on the evidence introduced, must not only assume the truth of the evidence in behalf of the party against whom the motion is directed, but must construe the evidence most strongly in favor of that party, or, as it is sometimes expressed, must give the most favorable interpretation or intendment in his behalf, and adopt the view most favorable to his ■contention, or consider it in the light most favorable to him, of which such evidence is susceptible. To this end the trial judge should give the party, against whom the motion is made, the benefit of all reasonable inferences that can be drawn from the evidence offered and consider as proved such reasonable inferences favorable to him as the facts proved warrant — as are ■deducible from the evidence given — without carrying the inferences to an illogical conclusion. In other words, the evidence must be construed favorably to the submission of the case to the jury, and the trial judge should indulge in every possible consideration in favor of such submission.”

Now, translating these rules into specific application to the evidence here presented, it is apparent that it may be inferred that the decedent in the exercise of ordinary care proceeded northwardly across Dale road upon the crosswalk, using reasonable care for her ■own safety. Her glasses having been found in the vicinity of this crosswalk it may be inferred that it was here that the admitted collision with her body occurred. Her body being found some 85 feet away, her skull fractured, her legs broken, her shoes knocked off her feet, her blood spattered over the front of the taxicab, the dent in the hood, the heavy thump heard by the witness, all are evidence which giving it a fairintendment tends to meet and overcome the prima facie presumption of care and compliance with law attributable to the driver of the taxicab.

The collision having been admitted, such evidence-certainly presents a substantial case which in the absence of any explanatory evidence would sustain a verdict for the plaintiff. The jury might well find otherwise, and its verdict would not be disturbed if its conclusion were in favor of the defendant, but certainly the evidence introduced by the plaintiff was of such a character as to require that the case, as it stood when the trial court instructed a verdict, should be presented to a jury. For this reason, the court committed error in instructing a verdict for the defendant, and this-judgment is reversed and the case remanded for a. new trial.

Judgment reversed,.

Matthews, P. J., and Hamhaon, J., concur.