Opinion
No. 22239
Decided April 15, 1931.
Negligence — Directed verdict — Contributory negligence — Jury cannot guess or speculate on proximate cause of accident — Defendant entitled to verdict when evidence in equipoise.
1. Where it appears that, at the close of the plaintiff's testimony or at the close of the entire evidence, there is no reasonable presumption other than that plaintiff's negligence proximately contributed to his injury, it becomes the duty of the court to sustain motions in defendant's favor for a directed verdict, unless the defendant's conduct amounts to wantonness or wilfulness.
2. While the jury may indulge in reasonable presumptions in regard to the proximate causes of an accident, it cannot guess or speculate in respect to such causes. Where the issue presented to it is, whether the negligence proximately causing the accident was that of the defendant or of the plaintiff, or of both combined, and the evidence in that respect, including such presumptions, stands in equipoise or is more favorable to the defendant, it becomes the jury's duty to return a verdict for the defendant.
ERROR to the Court of Appeals of Summit county.
This is an action for personal injuries brought by Albert J. Michalec, administrator of the estate of Peter Blonariz, deceased, against John Hutchison in the common pleas court of Summit county. Upon the trial, the defendant moved for a directed verdict in his favor at the close of the plaintiff's testimony, and renewed his motion at the close of the entire evidence. Both motions were overruled by the trial court. Upon submission of the case to the jury, that body unanimously returned a general verdict for the defendant, and judgment was rendered thereon in his favor. On error to the Court of Appeals, that court affirmed the judgment, whereupon the administrator instituted proceedings in error in this court seeking a reversal of the lower courts.
It appears from the record that shortly after midnight on December 24, 1927, Hutchison and a young lady by the name of McGowan, both students at the University of Akron, were driving to that city in a five-passenger Buick sedan. There were no eyewitnesses to the accident complained of, unless Hutchison and his lady companion can be said to have been eyewitnesses; but both deny knowledge of the fact that the automobile in which they were riding had struck any one upon this occasion. Those two were riding on the front seat of the automobile, the young lady sitting on the right, and the defendant at the left drive of the car. Their testimony touching the circumstances surrounding the accident is substantially alike. The accident occurred near the intersection of Howard street and Charles street, at which point there is about a 10 per cent. down grade in Howard street. The occupants of the car testified that, while descending North Howard street in a southerly direction at a speed of from twenty to twenty-five miles an hour, with lights on and brakes lightly used for the down grade, at a point about one hundred feet from the Charles street intersection, they observed a man at the east curb of Howard street, stepping from the curb and proceeding westerly. About fifteen feet from the intersection they again saw him, both testifying that he had then stopped in the center of Howard street or a little east of that point. They testified that the defendant's automobile was going southwardly on Howard street on the right side of the street, and about three or four feet west of its center line; that just as they were passing Blonariz something struck the window glass in the front door of the automobile, crashing the glass inwardly, and in such manner as to throw the glass into the car over its occupants, gashing defendant's head in several places. Hutchison further testified that, thinking it was a holdup or robbery, and that some one had thrown a brick or something through the window, and not knowing or surmising that he had injured any one, he drove to the McGowan residence about a mile away, and had his head bound up by the McGowan family. The next day Hutchison and his father reported the incident to the police, and the defendant claims that the first knowledge he had of the fatality was obtained at the police station.
Although there were minor discrepancies in their evidence, these two witnesses, Hutchison and Miss McGowan, substantially corroborated one another. Testimony was given by one Barbee, who was called by the plaintiff. This witness lived on Howard street about 250 to 300 feet south of the intersection where the accident occurred. He testified that about the time of its occurrence he heard a crash of glass, and that immediately thereafter, while the car was passing under a street light and going at the rate of forty to fifty miles an hour southwardly on North Howard street, he recognized it as a Buick sedan with two occupants on the front seat.
The next day the condition of the car was examined, and there was then found a broken front left window, blood upon the sill of the window and the fender beneath it, and a dent on the frame between the front and rear windows, about five feet above the street level. The defendant testified that the blood came from the gashes in his head caused by the broken window glass.
Messrs. May May and Mr. Clayton E. Crafts, for plaintiff in error.
Messrs. Waters, Andress, Hagelbarger, Wise Maxon, for defendant in error.
This is an unusual case. Counsel for plaintiff in error frankly admit "that the plaintiff's case is based largely upon circumstantial evidence." Plaintiff below produced no eyewitness to the accident, save the defendant, who was called for the purpose of cross-examination. The only evidence offered that might give rise to an inference of actionable negligence on the part of the defendant was that of the witness Barbee, who testified that after the crash he saw a Buick sedan going southwardly at the rate of forty or fifty miles per hour. The defendant and Miss McGowan both testified that the rate of speed did not exceed between twenty and twenty-five miles per hour. However, should the testimony of Barbee be taken as true on the question of speed, and that of the two occupants of the car disregarded, we find other proven facts in the record that furnish reasonable inferences that the decedent's conduct may have proximately and directly caused his injuries. If the occupants of the car saw the deceased, as they testified they did, before they reached the crossing, so also could the deceased have seen the approaching lighted car before and at the time he was struck by it. The facts proven without dispute are that no marks appeared upon any of the front part of the car or upon the front fender, and that the decedent was struck as he collided with the left side of the passing car. The fact that the left front window glass was shattered and a dent made in the frame, together with the fact that the coroner testified that the right side of the decedent's face and head were gashed, give rise to strong inferences that the decedent either walked or stumbled into the side of the sedan. If his negligence produced the injury, or if the negligence of both defendant and plaintiff combined to produce the injury, the plaintiff cannot recover. No testimony was offered tending to rebut or explain the presumption of decedent's negligence, arising at the conclusion of plaintiff's testimony and also at the close of the entire evidence. It therefore became the duty of the court to sustain the motions of the defendant below for a directed verdict in his favor. Baltimore Ohio Rd. Co. v. Whitacre, 35 Ohio St. 627; Baltimore O. Rd. Co. v. McClellan, Admx., 69 Ohio St. 142, 68 N.E. 816; Maddox v. Columber, 114 Ohio St. 178,151 N.E. 56.
While the jury may indulge in reasonable presumptions in regard to the proximate causes of an accident, it cannot guess or speculate in respect to such causes. Where the issue presented to it is whether the negligence proximately causing the accident was that of the defendant or of the plaintiff, or of both combined, and the evidence in that respect, including such presumptions, stands in equipoise, or is more favorable to the defendant, it becomes the jury's duty to return a verdict for the defendant. Here are presented much stronger features necessitating a directed verdict than those in Youngstown Suburban Ry. Co. v. Faulk, 118 Ohio St. 480, 161 N.E. 530. In this case, as in that, there was no evidence justifying the jury in returning a verdict against the defendant for wanton or willful negligence.
The jury returned a general verdict for the defendant. Since the case made by the plaintiff failed for lack of proof, and as we hold that the verdict should have been directed for the defendant, no prejudicial error intervened in respect to the charges of the court. The judgment of the Court of Appeals will be affirmed.
Judgment affirmed.
MARSHALL, C.J., MATTHIAS, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.