Pisel v. ITT Continental Baking Co.

399 N.E.2d 1243, 61 Ohio St. 2d 142, 15 Ohio Op. 3d 175, 1980 Ohio LEXIS 628

Opinions

Per Curiam.

Appellants’ major challenge in the cause at bar stems from the trial court’s refusal to grant their motion for a directed verdict. Appellants argue that the trial court erred when it submitted the instant cause to the jury on the question of whether Brubaker’s (hereinafter “appellant”) behavior amounted to wanton misconduct.

A perusal of the evidence in the manner required by Civ. R. 50(A)(4)

Footnotes

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* demonstrates that on November 1, 1973, at about 7:15 p.m., after darkness had descended, David Pisel (hereinafter “appellee”) was operating his motorcycle westerly on U. S. Route 30 in Mansfield, Ohio. Route 30 is an unlighted four-lane highway separated by a concrete barrier. Appellee was traveling in the left lane, and was wearing a helmet with an amber-tinted face mask. Appellee testified that the mask had the effect of “darkening” lights when he wore it at night. His speed was approximately 50 miles per hour and his lights were on. As appellee approached his intended exit, he glanced backward over his shoulder in order to move into the right lane. He was unable, however, to change lanes due to the traffic in that lane. "When he again focused his vision forward, appellee observed a truck resting sideways in his lane. Unable to stop in time, appellee crashed into the truck and sustained injuries which resulted in the amputation of his left leg.

During trial, the evidence demonstrated that approximately ten to fifteen minutes prior to appellee’s collision, appellant’s truck had been involved in an accident with an automobile. Although the truck was operable, appellant did not remove it from the westbound, left lane of travel. Both vehicles were left in the highway until the police could arrive to prepare an accident report. After the collision, however, the truck’s headlights, tailights, and clearance lights were left on by appellant. When a witness arrived at the scene, appellant requested that the police be summoned. While awaiting arrival of the authorities, appellant remained with the vehicles and began to direct the flow of traffic around the wreckage. The evidence is in dispute with respect to whether appellant was using a flashlight to direct other travelers as appellee arrived at the scene. When appellant observed appellee’s motorcycle approaching, he began waiving his arms in an attempt to warn him of the obstruction.

“Wanton misconduct” has most recently been discussed by this court in Hawkins v. Ivy (1977), 50 Ohio St. 2d 114, 363 N.E. 2d 367, wherein the syllabus states:

“Where the driver of an automobile fails to exercise any care whatsoever toward those to whom he owes a duty of care, and his failure occurs under circumstances in which there is great probability that harm will result, such failure constitutes wanton misconduct.***” (Emphasis added.)

Applying this rule to the facts at bar, it is clear that appellant’s actions did not amount to “wanton misconduct.” The defendant in Hawkins failed to exercise any care whatsoever. In the instant cause, appellant acted to protect other motorists from the potential danger of the blocked thoroughfare. Baab v. Shockling (1980), 61 Ohio St. 2d 55, 399 N. E. 2d 87.

The judgment of the Court of Appeals is reversed and final judgment is entered for appellants.

Judgment reversed.

Herbert, Locher and Holmes, JJ., concur. P. Brown, J., concurs in the judgment. Celebrezze, C. J., W. Brown and Lynch, JJ., dissent. Lynch, J., of the Seventh Appellate District, sitting for Sweeney, J.

Civ. R. 50(A)(4) provides:

“(A) Motion for directed verdict. * * *

“(4) When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any deter minative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.”