
    Feiss v. Hensch.
    (Decided October 31, 1927.)
    
      
      Messrs. Davis, Young & Vrooman, for plaintiff in error.
    
      Mr. Charles Savage, for defendant in error.
   Lloyd, J.

Plaintiff in error, Paul L. Feiss, was defendant in the court of common pleas, and defendant in error, Marjorie Hensch, was plaintiff, and they will be so designated here. By these proceedings in error defendant seeks to reverse a judgment of $2,000 rendered against him as damages for personal injuries claimed to have been occasioned to plaintiff by certain alleged negligence of the defendant.

The undisputed facts are that, on the morning of November 16,1925, plaintiff, with three other ladies, Was a passenger in an automobile owned and driven by her husband. She was sitting in the rear seat between two of the other women. They were proceeding northerly on East Fortieth street, in the city of Cleveland, and at about 8:15 a. m. had reached Prospect avenue, where traffic on East Fortieth street was stopped by the signal of a police officer directing traffic at the intersection of these two streets. While so standing there, and after the lapse-of at least twenty seconds, this automobile was bumped from the rear by an automobile owned by defendant and driven by his chauffeur, he being a passenger therein, as a result of which plaintiff claims she was thrown forward in, but not from, the seat where she was sitting, and injured; there being no evidence, however, that any part of her body came in contact with any other object. The record contains no other facts as to the manner in which the collision occurred, and plaintiff was' the only witness testifying thereto. There were but two other witnesses, both physicians, one called by the plaintiff and the other by the defendant; their testimony relating solely to the nature and extent of the injuries sustained by plaintiff.

Plaintiff alleges in her amended petition the facts above narrated, and that defendant, acting through his agent, who was driving his automobile, failed at the time and place in question “to keep a proper lookout and to operate his automobile in a reasonable and proper manner and with due regard to the rights of pedestrians and other vehicles then and there in the lawful and proper use of said street.” At the close of plaintiff’s evidence, defendant moved the court for a directed verdict, and renewed the motion at the close of all of the evidence. Defendant alleges as error the failufe of the court to direct a verdict in his behalf, and also claims that the amount of the verdict is manifestly too large.

As to the first alleged error, we are of the opinion that the facts shown by the evidence, uncontradicted and unexplained, are sufficient to warrant the inference that the collision and resulting injury were caused by the negligence of the defendant in th'e operation of his automobile. An automobile in. and of itself is not to be considered as a dangerous instrumentality. It has become a common and necessary vehicle of transportation, both of passengers and freight, and becomes dangerous only because allowed to be out of repair or because of negligent operation. In the absence of evidence to the contrary, it must be presumed that defendant’s automobile was not in any respect defective, which leaves the almost necessary inference, if plaintiff’s story of the facts is to be believed, that defendant’s car, at the time and place in question, was being negligently operated: otherwise it would not probably have collided with another automobile in front of it, and which had been standing at the street intersection in obedience to the signal of a traffic officer for fully twenty seconds before the collision occurred, especially when it was the duty of the driver of the colliding automobile also to watch for and obey the signal of the officer commanding approaching vehicles to stop.

The streets and highways are being used more and more by automobiles, and it is becoming increasingly essential that the drivers thereof shall at all times exercise the degree of care which the law imposes, and under facts and circumstances such as these narrated by plaintiff the owner of an automobile may not avoid the effect of the inference which a jury may deduce therefrom, by refraining from disclosing the cause of the collision.

As to the second alleged error, this court is of the opinion that the amount of the verdict is manifestly against the weight of the evidence. We have examined the evidence contained in the record relating to the nature and extent of the injuries to plaintiff, and are clearly of the opinion that a remittitur should be allowed. Since there may be a retrial of the action, we refrain from commenting upon the evidence and giving in detail the reasons inducing this conclusion.

If defendant in error will remit $800 as of the date of the judgment, the judgment will be modified accordingly, and will be affirmed as modified. Otherwise it will be reversed, and the action remanded for a new trial.

Judgment accordingly.

Richards and Williams, JJ., concur.

Judges of the Sixth Appellate District sitting in place of Judges Sullivan, Vickery and Levine of the Eighth Appellate District.  