Westervelt v. Rooker

447 N.E.2d 1307, 4 Ohio St. 3d 146, 4 Ohio B. 390, 1983 Ohio LEXIS 683

• Court: Ohio Supreme Court
• Decided: April 20, 1983
• Docket: No. 82-300
• Status: Published

Opinions

Kerns, J.

Although the evidence in this case is impressed with serious conflicts and inconsistencies, a jury could find therefrom that Westervelt had the right-of-way and was proceeding in a westerly direction on his son’s motorbike on a two-lane street which measured about twenty-nine or thirty-five feet in width. As he approached an intersection, he slowed down, moved toward the centerline, and finally came to a “rolling stop” as eastbound traffic passed to the left of his vehicle. At about the same time, Rooker attempted to pass the motorbike on the right, but as she did so, Westervelt veered to the right and into the left front fender of the Rooker automobile.

This factual pattern brought into play the provisions of R.C. 4511.28 which grants permission to pass another vehicle on the right, and states as follows:

“(A) The driver of a vehicle or trackless trolley may overtake and pass upon the right of another vehicle or trackless trolley only under the following conditions:

“(1) When the vehicle or trackless trolley overtaken is making or about to make a left turn;

“(2) Upon a roadway with unobstructed pavement of sufficient width for two or more lines of vehicles moving lawfully in the direction being traveled by the overtaking vehicle.

“(B) The driver of a vehicle or trackless trolley may overtake and pass another vehicle or trackless trolley only under conditions permitting such movement in safety. The movement shall not be made by driving off the roadway.” (Emphasis added.)

With respect to this statute, the trial court instructed the jury, in part, as follows:

“With regard to the first legal condition for overtaking and passing another vehicle upon the right, that is, that it may be done when the vehicle overtaken is making or about to make a left turn, it would be sufficient if the defendant proves by a preponderance of the evidence that under all the facts and circumstances of this case a reasonably prudent operator of an overtaking vehicle, under the same circumstances, could reasonably infer or reasonably assume that the operator of the vehicle overtaken intended to make or was about to make a left turn.”

In the appellate court, the Westervelts argued that R.C. 4511.28 does not permit a driver to pass on the right with impunity even where such driver reasonably could have inferred from the surrounding circumstances that the driver ahead intended to make a left turn. And in reversing the judgment of the trial court, the appellate court expressly found “that a driver, passing another vehicle on the right, makes any assumptions concerning the intentions of the driver ahead at his own risk.” Thus the issue presented for the determination of this court is whether the applicable statute merely prescribes a rule of conduct which is dependent upon all of the attending facts and circumstances or whether the statute imposes an absolute standard of care as a matter of law.

In Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367 [53 O.O. 274], this court discussed the controlling issue in the present case at some length before making the following observations at pages 372-373:

“The view that the violation of a legislative enactment may constitute actionable negligence is predicated upon the principle that when an act is forbidden by express provisions of law, an absolute standard of conduct is set up, and one who commits the prohibited act resulting in injury will be deemed to be liable regardless of whether the injury might have been foreseen by a reasonably prudent person. * * *

“However, a legislative enactment which does not purport to define a civil liability but merely makes provisions to secure the safety or welfare of the public is not to be construed as establishing such a liability. In such cases, no standard of care other than the common-law standard of due care under the circumstances is fixed by the enactment, and the standard of due care is that exercised by a reasonably prudent person under the circumstances of the particular case.”

In the particular case before us, the applicable statute does not allude to the commission or omission of any specific act. On the contrary, under the provisions of R.C. 4511.28, the driver of a vehicle may overtake and pass upon the right of another vehicle when the vehicle overtaken is making or about to make a left turn, only under conditions permitting such movement, in safety. Thus, the permission to pass is conditioned solely upon what the stranger ahead intends to do, and intent, being a subjective matter, necessarily depends upon an evaluation of multiple facts and circumstances. Surely, the approaching motorist, in the usual course of events, is not required to stop in a hazardous position on the thoroughfare and await some providential sign that the vehicle ahead is definitely “about to make a left turn.”

In concluding from the statute that the passing driver “makes any assumptions concerning the intentions of the driver ahead at his own risk,” the appellate court has held, in effect, that the mere happening of an accident under the facts of this case shows negligence as a matter of law, but the enactment itself does not rest the license to overtake and pass upon any such absolute standards, and indeed, if such was the case, the statute would serve no purpose or have any practical use on the streets and highways. Hence, R.C. 4511.28 prescribes a rule of conduct, and the issue of whether the movement contemplated by the statute can be made in safety is for jury determination from all of the attending facts and circumstances as shown by the evidence.

In support of their position, the Westervelts have placed considerable emphasis upon the evidentiary fact that the motorbike gave no mechanical signal of an intention to turn to the left, but this fact, while probably of some importance during deliberations, was only one of a number of variable facts and circumstances which were presented to the jury, and parenthetically, we might add that the operation of a turn signal on the motorbike at the time of the unfortunate accident in this case would not have removed the “risk” incident to passing on the right under the theory of strict liability proposed herein by the Westervelts. Hence, we are of the opinion that the court of common pleas properly construed the language of R.C. 4511.28, and that its instructions fairly apprised the jury of its duty in this case.

Rooker also contends that the appellate court erred in reversing a trial court ruling upon certain evidence. During cross-examination, Rooker was permitted to ask Westervelt about a conversation with his attorney during a recess concerning the placement of an “x” in the wrong place on an aerial photograph of the particular location where the collision occurred on East Main Street. The court of appeals disapproved of the ruling of the court of common pleas for the alleged reason that such cross-examination was in violation of the attorney-client privilege. However, previous pronouncements of this court have held "that where a party testifies in any trial, such party may be cross-examined by the opposing party concerning communication with his attorney on any subject pertinent to his claim or defense, even though the fact of communications that have passed between them has not been referred to by such party in direct examination. See Spitzer v. Stillings (1924), 109 Ohio St. 297, paragraph one of the syllabus; King v. Barrett (1860), 11 Ohio St. 261. Therefore, we conclude that the trial court properly permitted the cross-examination.

Accordingly, the judgment of the court of appeals is reversed.

Judgment reversed.

W. Brown, Locher and Holmes, JJ., concur. Celebrezze, C.J., concurs in judgment only. Sweeney and C. Brown, JJ., dissent. Kerns, J., of the Second Appellate District, sitting by assignment.