Opinion
No. A200835
Decided January 31, 1967.
Court procedure — Opening statement — Right to supplement — Negligence — Motor vehicles — Reasonable and proper speed a jury question.
1. After the sufficiency of an opening statement has been challenged by opposing counsel, counsel is entitled to supplement the opening statement with additional facts that he expects to prove, and the denial of his request to supplement his opening statement constitutes prejudicial error.
2. Whether a person operated a motor vehicle at a speed which was reasonable and proper under the circumstances and conditions existing at the time, even though his speed was less than the prima facie speed limit, is a question of fact for the jury to determine, and it is error for the court to withhold the question from the jury, to find such person not negligent as a matter of law, and to direct a verdict in favor of such person.
Messrs. McIntosh McIntosh, and Mr. Arthur T. Knabe, for appellees.
Mr. C. R. Beirne and Mr. Robert E. Manley, for appellant.
This is an appeal on questions of law from the Municipal Court of Cincinnati.
The errors assigned by counsel for defendant-appellant are first, that the trial court erred to the prejudice of the defendant by granting a motion for judgment as to the negligence of the defendant on the basis of the pleadings and opening statement of counsel for the defendant without giving him an opportunity to amend the opening statement after it was challenged by counsel for plaintiffs-appellees. Secondly, that the court erred to the prejudice of the defendant in failing to submit the question of negligence on the part of the plaintiff David G. Goltra in failing to exercise reasonable care in the operation of his automobile under the facts and circumstances immediately preceding and up to the time of the collision of the automobiles. Thirdly, that the court erred to the prejudice of the defendant-appellant in directing a verdict against the defendant when there were judiciable questions of fact for determination by the jury.
At the conclusion of the opening statement, counsel for plaintiff moved for a judgment for the plaintiff on defendant's cross-petition. During the arguments on plaintiff's motion, counsel for the defendant on several occasions asked leave of court to supplement his opening statement by additional facts which he expected to prove. Before denying defense counsel such opportunity, the court advised counsel for defendant that he had admitted contributory negligence in his opening statement; that he was not ruling as a matter of law that the defendant was negligent as far as the petition was concerned but that she was contributorily negligent and therefore could not recover on her cross-petition. Thereupon the court ordered the case to proceed upon the plaintiff's petition, defendant's answer, and plaintiff's reply.
At the close of all the evidence in the case, counsel for plaintiff moved that the case be withdrawn from the jury and that a verdict be directed in favor of the plaintiff. Thereupon, after stating that there was no negligence on the part of the plaintiff, the court directed a verdict for the plaintiff for the stipulated sum of $329.02 on his petition and he also directed a verdict for the plaintiff on defendant's cross-petition.
The law is well settled in this state that after the sufficiency of an opening statement has been challenged by opposing counsel, counsel is entitled to supplement the opening statement with additional facts that he expected to prove, and that the denial of a request to supplement an opening statement constitutes prejudicial error. 52 Ohio Jurisprudence 2d pages 679 and 680; Pociey v. Pierrot, 17 Ohio App. 175.
Section 4511.20, Revised Code, provides that:
"No person shall operate a vehicle, * * * without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, * * * so as to endanger the life, limb, or property of any person while in the lawful use of the streets or highways."
The provisions of this cardinal statutory enactment applied to the plaintiff and the defendant alike.
Section 4511.65, Revised Code, required the defendant to stop her car before entering Elm Street which was a through highway.
Section 4511.01 (SS), Revised Code, reads:
"`Right of way' means the right of a vehicle * * * to proceed uninterruptedly in a lawful manner in the direction in which it * * * is moving in preference to another vehicle, * * * approaching from a different direction into its * * * path." (Emphasis added.)
This section gave the right of way to the plaintiff, Goltra, to proceed uninterruptedly northwardly on Elm Street provided that he did so in a "lawful manner."
The defendant testified that she had stopped at the stop sign before proceeding across Elm Street. Margaret Stewart was a passenger in the defendant's automobile and she was called by the defendant as a witness. She testified that she and Mrs. Phillips were coming through from Shillito Place going over toward George Street and that the defendant was driving very slowly through the three lanes when she approached the fourth lane. Mrs. Phillips also testified that when Mr. Goltra's car hit her she "was just easing — I can't say I was stationary, because I was just coming into that intersection."
David Goltra testified that at the time of the impact he was going between 15 and 20 miles an hour. Mrs. Phillips testified that after the accident happened, he said to her "why did it have to happen today, when I was in a hurry?", that he had a six o'clock appointment at the Y. M. C. A., a very important one to meet someone there and they were to drive him to the airport. Plaintiff admitted having made such remarks. The total which plaintiff prayed for was for damage only to plaintiff's automobile. Defendant's exhibit 6, which is in evidence, indicates that the two automobiles after the collision came to rest at the northwest corner of the intersection of Elm Street and George Street. The evidence also discloses that the general neighborhood was in the twenty-five mile an hour zone.
Section 4511.21, Revised Code, provides that it shall be prima facie lawful for the operator of a motor vehicle to operate it at a speed not exceeding twenty-five miles per hour in the zone in which the collision occurred. However, the first paragraph of that section further provides:
"No person shall operate a motor vehicle, * * * in and upon the streets and highways at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, * * *"
The plaintiff had the right to proceed uninterruptedly provided he did so in a lawful manner. Whether or not, under the evidence above reviewed and all the evidence in the case, Mr. Galtra was traveling at a speed greater than was reasonable and proper during the rush hour and under the circumstances and conditions existing at the time, was a question for the jury to determine, under proper instructions from the court.
If the jury had found that his speed, even though less than twenty-five miles an hour, was not reasonable and proper having due regard to the traffic, surface, and width of the street and other conditions existing there at the time, such speed would not have been lawful and he would have lost the preferential right of way. Under such circumstances the relative obligations of the plaintiff and the defendant would have been governed by the rules of common law, Morris v. Bloomgren, 127 Ohio St. 147.
In conclusion, I find that the court erred in denying counsel for defendant's requests to supplement his opening statement after it had been challenged by plaintiff's counsel; that the court erred in removing the case from the consideration of the jury and rendering judgment for the plaintiff upon his petition, and that the court erred in rendering judgment for the plaintiff on defendant's cross-petition.
The two judgments for the plaintiffs on the petition and the cross-petition respectively should therefore be set aside and vacated and the causes remanded to the Municipal Court of Cincinnati for a retrial, and the clerk issue such mandate to the Municipal Court.
Judgments vacated.