Ashbrook v. Cleveland Railway Co.

34 N.E.2d 992, 33 Ohio Law. Abs. 497, 1941 Ohio App. LEXIS 1023

• Court: Ohio Court of Appeals
• Decided: March 17, 1941
• Docket: No 17932
• Status: Published

Opinions

OPINION

By SKEEL, J.

This action, was brought to recover damages sustained by the plaintiff in a collision which occurred on the Harvard-Denison bridge. The plaintiff was driving his automobile in a westerly direction on Harvard Avenue at about twenty miles per hour. He had proceeded but a short distance on the Harvard-Denison bridge when because of the slippery condition of the pavement his automobile skidded. In the skid his car turned to the left and over on the east bound street car tracks of defendant, where it came to a stop. In the skid the plaintiff stalled his motor and his car turned around so that it was facing in the direction from which he had come. While thus standing one of defendant’s street cars which was then east-bound, struck the rear of the plaintiff’s car and pushed it some 200 feet easterly.

It is the plaintiff’s claim that he was driving in a careful and prudent manner and at a reasonable rate of speed and without fault on his part his car skidded as above indicated.

Plaintiff further testified that at the time he drove on to the Harvard-Denison bridge, he observed the defendant ant’s east-bound street car which was the only other moving object on the bridge. The street car was then a considerable distance westerly from plaintiff’s car.

The plaintiff testified that when he started to skid said street car was about 400 or 500 feet west of him and that after the plaintiff’s car came to a stop and he had used a moment or two to try to start up again, he looked back and then observed that the street car was about 100 to 150 feet away. It then appeared to plaintiff that the street car was not intending to stop and he tried to get out of his automobile but before he could do so the collision took place.

Plaintiff testified that the skidding motion of his automobile carried him forward about fifty feet. The record also discloses by his testimony that about two or three seconds elapsed from the time he started to skid until his automobile came to a full stop. The plaintiff further testified that the bridge was well lighted and that the speed of the on-coming street car at the time he looked back through the rear window of his stalled automobile was about thirty-five miles per hour.

Nowhere in the plaintiff’s case do we find any direct testimony as to the distance within which a street car could be stopped at a speed of thirty-five miles per hour, under the exact conditions which then existed. We do not consider such an omission fatal to plaintiff’s case when all of plaintiff’s evidence is given due consideration. While it is true that in cases where the evidence discloses that the distance between a claimant’s automobile as he drives or skids out of control upon the tracks of an on-coming street car, is so short that men’s common experience will not be sufficient to form a reliable judgment as to whether or not the street car could, by the exercise of ordinary care be stopped in time to avoid the collision, then and in that event expert testimony is desirable and perhaps necessary to fix the distance within which a street car can be stopped under the circumstances then existing, to establish that the collision could have been avoided in the exercise of ordinary care in the control of such street car.

But where there is evidence disclosing such a long distance between a motor vehicle obviously skidding and out of control or stalled on the street car track of an approaching street car, that man’s common experiences are sufficient upon which to found a sound judgment as to whether or not by the exercise of ordinary care the street car could have been stopped in such distance when operated under a given speed and under like conditions, then under these circumstances the absence of expert, testimony is not fatal to plaintiff’s' case.

In considering the question as to whether the verdict is manifestly against the weight of the evidence or that there is an entire lack of evidence upon any material part' of plaintiff’s claim, we must consider the record in its most favorable light to the plaintiff. The facts suoport^d by some credible evidence as above indicated, are as follows: That the automobile of plaintiff started to skid when the street car was from 400 to 500 feet away; that the' plaintiff’s automobile moved forward about 50 feet in the skid; that about two or three seconds elapsed between the beginning and the ending of the skid; that a moment or two after the skid had ended, the street car was from 100 to 150 feet away; that the street car was then proceeding at about 35 miles per hour and that the street was well lighted.

It is a fact of mathematical determination that a vehicle moving at the rate of 35 miles per hour is traveling about 52 feet per second. It is a matter of common knowledge also that the so-called reaction time of the average man (that is the time elapsing from the moment one sees danger until the moment when he can actually get into action to avoid it) is about three-quarters of a second. Considering the evidence as above outlined, in the light of the surrounding circumstances therefore, the jury could have found within the realm of reasonable probability that the motorman could and should have observed the skidding automobile of plaintiff which was then out of control, when he was 300 feet or more to the west of it and that such distance, when judged from a man’s daily observation and experience, was sufficient to have avoided the collision by the exercise of ordinary care.

We do not contend that all these facts as herein outlined are absolutely established by the evidence, but there is certainly evidence supporting each of them which required that the case be submitted to the jury under proper instructions from the court.

It is a well recognized rule of law that the fact that the plaintiff’s car skidded while traveling on a slippery pavement does not in itself establish negligence on the part of the driver. Skidding while driving on such a road is not so uncommon that unexplained-it furnishes' evidence of failure to exercise ordinary care under the circumstances.

Glenny v Wright, 53 Oh Ap 1. Syllabus 3:

“The skidding automobile upon a highway is not of itself evidence of negligent operation.”

American Jurisprudence, Volume 5, page 654:

“Skidding, at least on a slippery pavement, is not necessarily due to negligence. The mere fact, therefore, that an automobile skidded does not of itself constitute evidence of negligence upon the driver’s part, so as to render the doctrine of res ipsa loquitur applicable. Such skidding is not an occurrence of such uncommon and unusual character that unexplained it furnishes evidence of the driver’s negligence.”

The question, therefore, of the plaintiff’s conduct in the management of his automobile becomes one for the- jury, unless there is evidence in addition to the fact of skidding which, as a matter of law, could be said to establish negligence on the part of tne plaintiff causing or contributing proximately to the cause of the collision. This is equally true on the question as to whether or not the plaintiff could have abandoned his automobile before the collision, and in time to have avoided injury to himself. Certainly the evidence upon this point would not permit a court to say, as a matter of law, that the plaintiff was negligent and that-such negligence was the sole cause or a proximate contributing cause of, the injuries of which he complains.

We, therefore, find that' at the conclusion of the plaintiff’s ease, all of the elements required to be established by the plaintiff . were supported by some evidence and that the court properly refused- to direct a verdict at that point in the trial and that, at the conclusion of the entire testimony the evidence was in such shape so as to require, its. submission to the jury.

We cannot say, as a matter of law, that the verdict is not sustained by sufficient evidence.

The judgment is therefore affirmed. Exceptions may be noted.

MORGAN, J., concurs. LIEGHLEY, PJ., dissents.