
    The Ohio Oil Co. v. Liles.
    (Decided November 29, 1935.)
    
      Messrs. Hamilton, Kramer $ Wiles, Mr. Edward Stoddard and Messrs. Flory <& Flory, for plaintiff in error.
    
      Messrs. Fiizgibbon, Elaclc & Fitzgibbon and Mr. Wayne Collier, for defendant in error.
   Lemert, P. J.

The plaintiff in error, The Ohio Oil Company, is an Ohio corporation, engaged in the business of selling motor oil, gasoline, and so forth. The defendant in error, William Liles, is a resident of Illinois, engaged in contract long-distance hauling.

On July 3, 1933, The Ohio Oil Company, hereinafter referred to as the plaintiff in error, was, by its agent, driving a truck north on Route 13 in Licking county, Ohio. This was a gasoline truck, loaded with approximately 800 gallons.

In the village or town of Jacksontown, Ohio, Route 13 runs in a northerly and southerly direction, and intersects State Route 40, running in an easterly and westerly direction. At or about the center of this intersection, and above it, there is an electrically operated traffic signal. This signal changes from time to time as vehicles traveling* north or south on Route 13 cross over traps, which have been located by the Highway Department at appropriate distances' from state Route 40. A vehicle going over the trap north or the trap south causes the traffic light heretofore showing green on Route 40 to change from green to amber and then to red. ■ The light for traffic on Route 13 changes from red to green abruptly — that is, there is no intermediate amber change. The defendant in error was driving his tractor truck and trailer west on Route 40, loaded with glassware, and weighing in the aggregate 12% tons. The vehicles collided in the center of the intersection. The Ohio Oil truck turned around and continued off the highway to the north. After the collision the truck driven by Liles continued straight ahead west on Route 40, approximately 150 feet, then turned over on its side and slid on the concrete pavement approximately 90 feet. The defendant in error, William Liles, was either thrown or jumped from the cab of his motor tractor, as a result of which he sustained serious personal injuries, as described in his petition.

This case was presented to this court by well-prepared briefs, and in oral argument, and the plaintiff in error’s main contention is that the court below should have sustained the motion made after plaintiff had rested, and should have directed a verdict, and, further, that the court should have sustained the motion when it was renewed after the completion of all the evidence. The plaintiff in error further complains of the charge of the court. We note from a reading of the evidence that in the trial of this case in the court below there were very few exceptions taken to the rulings of the court during the trial of the action.

This was a personal injury case. Liles, the plaintiff below, was badly injured. His complaint was that his truck, which he was driving westwardly along the National Pike at Jacksontown, was run into by a truck belonging to defendant below, and that the operator of the truck was negligent in a number of particulars.

Route 40 was the National Pike, and runs in a general easterly and westerly direction at that place, and intersects Route 13, which runs in a northerly and southerly direction'. The two highways intersect at right angles. There was at the time of the accident a traffic light at the intersection, as hereinbefore described, so with the foregoing statement we direct our attention to the case of Cleveland Ry. Co. v. Goldman, 122 Ohio St., 73, 170 N. E., 641, holding to the effect that where both parties are at the intersection, and both with the green light in their favor, they should govern themselves, so far as they are able, to protect and avoid injury to one another. The syllabus in that case is as follows:

“When the ‘go’ signal changes before a person entering the intersection with such signal has an opportunity to emerge from such intersection, and a person from a cross' street has entered such intersection with the ‘go’ signal in his favor, neither is wrongfully there, and their rights are equal, subject to the qualification that, for his own and the safety of the other, each must regulate his conduct with reference to his own arid such other person’s ability, or lack of ability, to stop or deviate from his course.”

From a careful reading of the record in this case, and particularly that of the drivers of the trucks that were in the collision, and of the eye witnesses who claim to have seen the. accident, the evidence strikes us "as tending to prove that the true theory of this lawsuit was and is that the driver of the oil truck came up to this intersection paying no attention to anything other than the light — paying no attention whatever to traffic on Route 40. The evidence shows that the driver of the truck was familiar with the traffic light, and knew he had run over the trap. He says that the “light changed and turned in his favor and without regard to any one else on the highway he started forward,” with the result that the collision occurred.

So that, from his own, testimony, as well as that of the witness Griffith, and other witnesses who saw the accident, his' truck was barely moving and he had it under such, control that he could have stopped it within a very short distance, and could have thereby avoided the injury to the plaintiff below.

We note the testimony of one William Gallagher, as found in the record, as follows :

“A. Well, I would say I was about fifteen feet from the pike when I stopped, or just practically stopped there, when it changed to green.

“Q. Bid you stop, or didn’t you stop? A. I might have stopped.

“Q. You don’t know? A. I know I was barely moving.

“Q. You don’t know whether you stopped, or didn’t stop — that is the size of it, isn’t it? A. Well, I wouldn’t say that I stopped still, but—

“Q. (Interrupting): You are—

“By Mr. Flory (Interrupting): Let him finish.

“By Mr. Fitzgibbon. Go ahead. A. As I said before, I was just practically moving when the light changed to green.

“Q. You further said you stopped, didn’t you— which was it, did you stop, or didn’t you? A. I said I might have stopped, but the wheels were barely moving.

“Q. The fact of the matter is, you don’t know whether you stopped, or not?. A. No.

“Q. The fact further is, that you were looking at the light and not paying any attention to anything else? A. I would naturally look at the light.

“Q. And you started across as soon as the light changed? A. As soon as the light changed, I started.

“Q. Where was this Chicago truck, as we will call it, at that time, if you know? A. Well, as I say, as' I started the truck, it seemed like it was quite a ways up the road, and I didn’t think he would come through the red light.

“Q. You say it was quite a ways, how far was it— was it two hundred yards? A. Yes, it might have been.

“Q. Was it three hundred yards? A. Well, it might have been.

“Q. Was it four hundred yards? A. No, it wasli’t.”

So that it is easy to understand that the jury, hearing all this evidence of the driver of the oil truck and the other eye witnesses, concluded — and we believe rightfully so — that the driver of the oil truck, as he himself testified, was not paying any attention to other travelers lawfully on the highway. This being so, the court below was' right in refusing to direct a verdict after plaintiff rested, and the court was right in refusing to direct a verdict at the completion of all the testimony.

We have carefully examined the charge of the court, and are of the opinion that it could be improved upon; yet, after carefully considering the complaints made against it, by reason of omission or commission, we find no prejudicial error therein.

Plaintiff in error assails this charge from all angles', complaint being made that the court did not charge on contributory negligence, because the court failed to use the word “want” in defining negligence as want of ordinary care. We note that it is true, as shown by the record, that when the court first mentioned contributory negligence the word “want” was lacking, but immediately following, and in two separate sentences following, the word was used in connection with the definition. The court below used the following language:

“Arising in this case is' the defense known as contributory negligence. Contributory negligence may be defined to you in this way: It is such an act or omission on the part of the plaintiff amounting to ordinary care, as concurring or cooperating with some negligence of the defendant is the proximate cause of the injuries complained of. It is the legal duty of all persons to exercise • ordinary care to avoid injury. Therefore, if you find the defendant in s'ome respect, or respects, negligent in causing plaintiff’s injuries, if any, as charged in the petition, and also find any want of ordinary care, even in any degree, on the part of the plaintiff, which want of ordinary care by plaintiff directly and proximately contributed to the injuries, the plaintiff in such case cannot recover.”

We are of the opinion that there is nothing prejudicial in the above charge for which the plaintiff in error has right to complain.

We further note that the court charged as follows: “If the plaintiff, Liles, drove his truck into the intersection while the traffic light was red as to him, then you are charged, the plaintiff, Liles, was guilty of contributory negligence, and your verdict should be for the defendant, The Ohio Oil Co.”

We further note that there were submitted to the court below three separate, distinct charges, which the plaintiff in error asked the court to charge, and that they were charged as given.

It is further noted that when the trial judge finished his charge he said to counsel, “Is there anything I have omitted?” And he was answered by Mr. Flory: “Also the special charges.” None of these matters of which counsel now' complain were mentioned or called to the court’s attention.

In the case of State v. Driscoll, 106 Ohio St., 33, page 38, 138 N. E., 376, the Supreme Court said:

“The language of Section 11561, General Code, is so clear that it does not admit of judicial interpretation, and yet, as pointed out by Donahue, J., in the McCoy case [88 Ohio St., 447], and by Price, J., in the case of Columbus Ry. Co. v. Ritter, supra [67 Ohio St., 53], it is the duty of counsel in order to bring about full and complete justice to aid the court by calling attention to any omitted matters and by making specific request for further instructions, and any other rule would be a hindrance to the administration of justice. ^ ^

“Any other rule would relieve counsel from any duty or responsibility to the court and place the entire responsibility upon the trial court to give faultless instructions upon every possible feature of the case, thereby disregarding entirely the true relation of court and counsel which enjoins upon counsel the duty to exercise diligence and to aid the court rather than by silence mislead the court into commission of error.”

In the case of Adams v. State, 25 Ohio St., 584, the Supreme Court said:

“These rules, it is said, have their foundation in a just regard to the fair administration of justice, which requires that when an error is supposed to have been committed there should be an opportunity to correct it at once, before it has' had any consequences; and does not permit the party to lie by, without stating the ground of his objection, and take the chances of success on the grounds .on which the judge has placed the cause, and then, if he fails to succeed, avail himself of an objection which, if it had been stated, might have been removed.”

We have carefully examined the record as to the nature and extent of plaintiff’s injuries and we can not say that the amount awarded by the jury was excessive. It therefore follows that the judgment of the court below will be and the same, is hereby affirmed.

Judgment affirmed.

Montgomery and Sherick, JJ., concur.  