
    Peaney v. Davis.
    
      Negligence — Charge to jury erroneous — Court, not jury, determines whether state or municipal traffic law effective— Court to harmonize or reject conflicting statutes and ordinances — Two conflicting charges upon exercise of care —Exercise of ordinary care and exercise of reasonably practicable care — Court accepts as true, admission in pleading that street main thoroughfare — Verdict of ‡15,000 for personal injury excessive.
    
    1. In action for personal injuries' sustained in automobile collision, instruction that violation of traffic laws (Sections 6310-26, 6310-28os, 6310-30 to 6310-32, General Code) and ordinances read to jury was negligence per se, and that, if jury found such laws and ordinances were in force and effect at time of accident, and if defendant violated same, defendant was negligent, and that, where state law and city ordinance are in conflict, state law prevails, held prejudicial error, since it is for court to say what the law was, and whether statutes and ordinances were in full force and effect, and to submit to and instruct jury only as to statutes and ordinances which had application to issues involved.
    2. In action for damages for personal injuries sustained in automobile collision, instruction that, if defendant motorist exercised all care and foresight that was reasonably practicable, there was no negligence on his part, and that in determining issue as to negligence question was whether defendant exercised ordinary care, that is, that degree of care that man of ordinary care and prudence would have exercised under same or similar circumstances, held prejudicial error, since court imposed on defendant exercise of different degree of care than law imposed, and instruction gave two conflicting rules for jury’s guidance.
    3. Court of Appeals is bound to accept as true admission made in pleadings that street on which defendant motorist was traveling before collision was main thoroughfare.
    (Decided April 4, 1927.)
    Error: Court of Appeals for Lucas county.
    
      
      Mr. George H. Lewis, Mr. W. L. Smith, and Mr. Wm. H. McLellan, Jr., for plaintiff in error.
    
      Messrs. Miller, Brady ds Yager, for defendant in error.
   Lloyd, J.

Defendant in error, Oleo Davis, as plaintiff, commenced an action in the court of common pleas to recover of plaintiff in error, Newton J. Peaney, as defendant, the sum of $50,000 for personal injuries claimed to have been sustained by her in an automobile collision occurring at the intersection of Superior and Washington streets, in Toledo. The trial resulted in a verdict in her favor for $20,000, upon which judgment for $15,000 was entered, a remittitur of $5,000 having been ordered by the court, to which she consented.

By these proceedings in error the defendant seeks a reversal of this judgment, and bases his right thereto upon alleged errors in the charge of the trial judge, and upon the claim that the verdict is excessive in amount, and is against the weight of the evidence.

The facts, as shown by the pleadings and the evidence, in substance, are that Superior and Washington streets extend in a general northerly and southerly, and general easterly and westerly, direction, respectively, and intersect at right angles. By the pleadings it is admitted that Superior street is a main thoroughfare, and the evidence shows that Washington street is not a main thoroughfare. About 6 p. m., on November 19, 1925, the plaintiff, Cleo Davis, was seated at the right of the driver, Henry Steiner, in a Ford touring ear which was proceeding easterly on Washington street; Amos Steiner, the father of Henry, being seated on the rear seat thereof. The defendant, Peaney, alone in a Sterling-Knight sedan, was proceeding southerly on Superior street, both of said automobiles so driven being but a short distance from, and approaching, such intersection. In the center of the intersection was a signal tower, mechanically operated, alternately flashing by electricity toward each of these streets a green ,and red light, the one a signal for traffic to proceed, the other to stop.

"Witnesses testified that, as these automobiles approached this intersection, the green light was displayed toward Washington and the red toward Superior street. Both automobiles proceeded across the intersection, a collision resulting approximately in the center thereof, a little distance from the signal tower. Whether the tower was then in operation is disputed, the plaintiff claiming that it was, the defendant saying that the lights were not showing as he approached. The plaintiff claims to have been seriously injured, in that she sustained a dislocated left shoulder, the character of which is such that she has permanently lost the use of, and feeling in, her left arm, which now hangs limp at her side, and over which she has no control. She also claims, and witnesses testified, that in time it will atrophy and wither. This latter condition, however, did not exist on December 10, 1926, the date of the trial, when the circumference of this arm about the biceps muscles measured one-eighth of an inch less than the corresponding portion of the right arm, which measured 11 inches. She claims also to have since been nervous, and to have suffered much mental and physical pain. The defendant in his answer admits the collision, and that plaintiff was injured to some extent. Other than these, and as pleaded by plaintiff in her petition, that Superior street was a main thoroughfare, defendant ' denies all of the alleged claims of the plaintiff.

The plaintiff also in her petition pleaded portions of five ordinances of the city of Toledo, claiming them to be applicable to the facts in issue, and which she claims were violated by defendant at the time and place in question. These ordinances were offered and received in evidence.

The trial judge in his charge to the jury submitted all of these ordinance provisions, and also read to the jury Sections 6310-26, 6310-28a, 6310-30,. 6310-31, and 6310-32 of the General Code. There was pronounced conflict of contention as to whether or not some of these ordinances and statutory provisions were consistent, and whether they were applicable to the issues involved in the case.

After directing the attention of the jurors to these ordinances, and reading to them the above-mentioned statutory provisions, he said to the jury:

“Now, it is a provision of law that the violation of state laws, and also the violation of city ordinances, passed in the interests of public safety, as these laws and these ordinances which have been introduced in evidence were passed, is negligence, their violation is negligence per se. So, if you find that such laws and ordinances were in full force and effect at the time of the occurrence in question, and you further find that the defendant violated the provisions of such ordinances or laws, then I say to you that the defendant was guilty of negligence. * * * Where a state law and a city ordinance are in conflict, the state law prevails.”

This court is of the opinion that in so charging the jury the trial court erred to the prejudice of the defendant. It was for the court to say what the law was, and whether these statutes and ordinances, or any of them, “were in full force and effect,” and to submit to and instruct the jury only as to the statutes and ordinances, either or both, which had application to the issues involved. It was no part of the jury’s right or province to determine what the law was, and to harmonize or reject, as the case might be, conflicting statutes and ordinances.

As to the measure of care required of the defendant, the court charged the jury:

“If the defendant Peaney, exercised all the care and foresight that was reasonably practicable, then there was no negligence on his part, and in determining the issue as to any negligence on his part, submitted to you in these instructions, you are instructed that, if there was exercised all the care that was reasonably practicable, then there was no negligence, and, if you should so find, you will return your verdict for the defendant. The question is, Did the defendant exercise ordinary care; that is, that degree of care that a man of ordinary care and prudence would have exercised under the same or similar circumstances; that is the test; if the defendant did so exercise ordinary care, then the plaintiff cannot recover in this case.”

A majority of the court are of the opinion that in thus charging the jury the trial judge also erred to the prejudice of the defendant, because thereby he imposed upon the defendant the exercise of a quite different degree of care than the law imposed. The converse of this statement of the court to the jury would be that, if the defendant failed to exercise “all the care and foresight that was reasonably practicable,” then the defendant was negligent. “The care and foresight that was reasonably practicable” might be more or less than ordinary care, accordingly as differently minded persons might understand and apply it. The court gave to the jurors two conflicting rules for their guidance, whereby to determine whether or not the defendant was negligent. Which one of them the jury followed, it is impossible to say.

In argument, it was stated that Superior street was not in fact a main thoroughfare. If this be so, we assume that the court of common pleas, if requested so to do, will permit such amendment of the petition as will conform to the truth. This court, however, is bound to accept as true the admission thus made in the pleadings. Fisher v. Tryon, 15 C. C., 541; Trepanier v. T. & O. C. Rd. Co., 102 Ohio St., 69, 130 N. E., 558.

A majority of this court believe that the verdict of the jury is excessive, and, so far as relates to the amount awarded, is .manifestly against the weight of the evidence, and a majority of the court also are of the opinion that none of the alleged errors except those to which attention has been called is prejudicial to the defendant.

For the reasons given, the judgment of the court of common pleas is reversed, and the cause remanded to that court for further proceedings according to law.

Judgment reversed and cause remanded.

Richards and Williams, JJ., concur.  