
    Joyce Cottongim SHORT et al., Plaintiffs, v. FIRESTONE TIRE & RUBBER COMPANY, Defendant.
    Civ. A. No, 5765.
    United States District Court S. D. Ohio, W. D.
    Oct. 13, 1965.
    Alvin Eugene White, Cincinnati, Ohio, for plaintiffs.
    David N. Gorman and James W. Hengelbrok, Cincinnati, Ohio, for defendant.
   JOHN W. PECK, District Judge.

This action arose out of a vehicular collision, and it has been established by the pleadings, depositions, interrogatories and pretrial statements of the parties that plaintiffs’ automobile was operating on a dedicated public street when it was struck by defendant’s truck, as it entered the street from a private driveway. Defendant contends that its driver’s view was impeded by the presence of a truck owned by a company not a party to this action, and that the driver of that truck motioned to defendant’s driver to enter the street.

The matter is presently under consideration under plaintiffs’ motion for summary judgment on the issue of liability, and defendant concedes that its only defense in connection with this issue arises from the presence of the second truck and the motioning gesture alleged to have been made by its driver.

Both at the pretrial conference and at the oral hearing on the present motion we expressed grave doubts as to the availability of the indicated defense. After a further study of the pleadings and other documents referred to in the light of the scant available authority on the subject, it is here concluded that the operator of a motor vehicle has no right in abrogation of his duty to use due care in the operation of his vehicle to rely upon a motioning gesture or other indication from a volunteer third party that he could proceed with safety. It is further concluded that such reliance itself constitutes a want of ordinary care. In view of defendant’s concession that no other defense is here available to it, the motion for partial summary judgment will be sustained and an entry in conformance herewith may be presented.  