
    Lehman, Appellee, v. Haynam, Appellant.
    (No. 34416
    Decided February 29, 1956.)
    
      
      Messrs. Mills & Mills and Mr. Frank Lucas, for appellee.
    
      Messrs. Burt, Carson, Vogelgesang & Burt and Mr. Earl C. Sheehan, for appellant.
   Stewart, J.

If defendant was conscious during his driving, up to the point of the collision, he was without question guilty of negligence as a matter of law since lie unquestionably violated a specific safety statute in driving his automobile over onto his wrong side of the road. The only difference between negligence as a matter of law or per se and negligence as a matter of fact is that the former is the violation of a specific requirement of a statute, whereas the latter must be determined by a comparison with the conduct of an ordinarily prudent person under the same or similar circumstances as those from which negligence is claimed.

In the case of negligence per se, the court charges the jury that if it finds that the specific requirement of a statute was violated, it must find negligence, whereas in ordinary negligence the jury must do the comparing with the conduct of an ordinarily prudent person.

In order to base a recovery upon either kind of negligence, it must be shown that it was the proximate cause of the injury, and any contributory negligence directly contributing to such injury will defeat such recovery.

Defendant claims, likewise, that if a person driving an automobile with due care becomes unconscious from an unforeseen cause, and during such unconsciousness his automobile collides with another, causing injury or damage, he is absolved from liability and the burden of proof is upon the one seeking recovery for such injury or damage to show negligence and that the driver was conscious. Furthermore, defendant claims that because his testimony as to his unconscious condition and the corroborating testimony of his witnesses on that point was uncontradicted, he was entitled to a directed verdict; that, therefore, the trial court was guilty of an abuse of discretion in granting plaintiff a new trial; and that the Court of Appeals should have passed upon his motions for judgment instead of remanding them to the Common Pleas Court for consideration.

We are of the opinion that the Common Pleas Court did not abuse its discretion in granting a new trial but that the Court of Appeals could, within its discretion, have passed upon the motions for judgment instead of remanding them.

The Common Pleas Court, in charging the jury, stated as follows:

“However, before I go into these questions, one by one, the court says that the plaintiff in this case, Doris Lehman, has the burden of proof. To state that conversely, there is no obligation upon the defendant, Earl Haynam, to offer evidence to disprove anything until first Doris Lehman has offered such evidence which tends to disprove.
‘ ‘ Doris Lehman has the burden of proof and she must prove her claims by a preponderance of the evidence, that is, the greater weight of the evidence. ’ ’

In its opinion, the Common Pleas Court stated:

“At no point in the charge is that statement as to the burden of proof qualified so that, in fact, the court told the jury that the plaintiff had the burden of proving that the defendant did not suffer a loss of consciousness as the defendant claimed to have. Manifestly, this was incorrect and was prejudicial to the rights of the defendant. ’ ’

Defendant claims that at best the failure of the trial court to charge on the burden of proof as to unconsciousness was a mere omission, and that under the law error can not be predicated upon an omission unless it is brought to the court’s attention and a proper charge requested.

Although we have held in several cases that a mere error of omission or a desire for a fuller charge must be brought to the court’s attention in order to form a basis for a claim of prejudicial error, there was an entire failure upon the part of the trial court in the present case to properly charge upon the burden of proving the unconsciousness of defendant, the only fact which would have exonerated the defendant. In addition, the statement of the court that there was no obligation on defendant to offer evidence to disprove anything until plaintiff had offered evidence which tended to disprove, is dangerously near stating the proposition for which, indeed, defendant contends, to wit, that plaintiff must disprove defendant’s unconsciousness while driving before she can prevail.

In our opinion, such is not the law.

The rule with reference to unconsciousness being a defense against a claim of negligence is well stated as follows in 28 A. L. R. (2d), 35:

“By the great weight of authority, an operator of a motor vehicle who, while driving, becomes suddenly stricken by a fainting spell or loses consciousness from an unforeseen cause, and is unable to control the vehicle, is not chargeable with negligence or gross negligence. Stated differently, fainting or momentary loss of consciousness while driving is a complete defense to an action based on negligence (and a fortiori to an action based on gross negligence) if such loss of consciousness was not foreseeable. ’ ’

Then follow supporting cases from 20 jurisdictions. The cases seem to be somewhat in conflict as to whether plaintiff in such an action has the burden of showing that the driver causing an accident is conscious, or whether the burden is upon the driver claiming unforeseen unconsciousness to prove it.

In our opinion the latter rule is the most salutary.

It would be difficult, if not impossible, for a plaintiff to prove a defendant conscious, and particularly to prove that if he were unconscious whether such condition was foreseeable, such as sleepiness or an intoxicated condition, or resulted from an unforeseen cause.

In our opinion, if one was guilty of what would be negligence as to a conscious person and claims not to have been negligent because of an unforeseen unconsciousness, he should have the burden of proving his condition by the preponderance of the evidence.

We approve the rule stated as follows in the headnotes, and corroborated in the opinion, in the case of Driver v. Brooks, 176 Va., 317, 10 S. E. (2d), 887:

“Where the driver of an automobile is suddenly stricken by an illness which he has no reason to anticipate and which renders it impossible for him to control the car, he is not chargeable with negligence.”

The case holds further that irregular movements of a car, evidencing negligent action of its driver and being the sole cause of a collision, are actionable “unless it were shown that a sudden unforeseen illness caused him to lose control of the car,” “and the burden of such proof, in explanation of his conduct, rested upon the defendants.”

From what we have said, we are of the opinion that the trial court did not abuse its discretion in granting a new trial, and that the Court of Appeals was not in error in dismissing the appeal, on the ground that there is no final order.

With reference to defendant’s motion for judgment on the pleadings, we have heretofore decided that, where a case is tried as though all issues were controverted and no attention is given to the fact that no reply was filed to the answer of the defendant, and where no motion is made for judgment on the pleádings or to the introduction of evidence because a reply-had not been filed, the filing of a reply is waived and such failure is not available on review. Totten v. Estate of Miller, 139 Ohio St., 29, 37 N. E. (2d), 961.

The present case was tried under such circumstances.

If a motion for judgment oh the pleadings is filed prior to a retrial of the present cause, doubtless the trial court will grant leave to plaintiff to file a reply.

As to the three motions for final judgment for defendant, which were remanded by the Court of Appeals to the Common Pleas Court for consideration, we have said that in our opinion the Court of Appeals could, within its discretion, have disposed of them, and by the same reasoning this court, in its discretion, may so do.

We find such motions not well taken.

The burden is upon defendant to prove his defense of unforeseen unconsciousness, and, although no one contradicted in haec verba defendant’s testimony that he blacked out from an unforeseen cause, nevertheless, his claim was hotly disputed. There were bits of evidence from which the jury might have found that it had a basis for not believing defendant or that his unconsciousness was due to drowsiness.

It would be an unrealistic situation if a driver claiming that he blacked out must be believed as a matter of law, because another driver could not positively say that the first driver did not black out.

In our opinion a jury question is squarely presented in the present case, and we, as the Court of Appeals could have done and as the Common Pleas Court should have done, overrule the motions of defendant for judgment.

It can be considered that in dismissing such motions the Common Pleas Court did so, even though for an incorrect reason.

The judgment of the Court of Appeals is modified and, as modified, affirmed, and the cause is remanded to the Court of Common Pleas for a new trial.

Judgment modified and, as modified, affirmed and cause remanded.

Weygandt, C. J., Matthias, Hart, Zimmerman, Bell and Taft, JJ., concur.

Taft, J.,

concurring. After determining as it has that each of the various motions of defendant for judgment should have been overruled, this court, in following Green v. Acacia Mutual Life Ins. Co., 156 Ohio St., 1, 100 N. E. (2d), 211, should have determined only whether the trial court abused its discretion in granting plaintiff’s motion for new trial. Johnson v. O’Hara, 156 Ohio St., 117, 100 N. E. (2d), 223; Mele v. Mason, 156 Ohio St., 118, 100 N. E. (2d), 224. The journal entry of the trial court specifically discloses that that motion was granted for error in the general charge by failure to charge that the burden of proof rested upon defendant to show that he was unconscious at the time of his alleged negligence. In considering whether the trial court erred in granting a new trial on that ground, the majority opinion has apparently recognized by inference that an order, granting a new trial for a supposed error of law which did not amount to an error, would represent an abuse of discretion and thus be reviewable on appeal.

This appears to be a departure from at least one of the decisions which followed Green v. Acacia Mutual Life Ins. Co., supra, and in which the opinion, unlike the majority opinion in the instant ease, gave no consideration whatever to whether the supposed error, specified as the reason for granting a new trial, was or was not an error. See Lawrence v. Moore, 156 Ohio St., 375, 102 N. E. (2d), 595. Heretofore, it had been stated by this court that “the term ‘abuse of discretion,’ as it relates to an order granting a motion for a new trial, connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on tbe part of tbe court in granting such motion.” Klever v. Reid Bros. Express, Inc., 154 Ohio St., 491, 96 N. E. (2d), 781; Steiner v. Custer, 137 Ohio St., 448, 31 N. E. (2d), 855. Some support for such a departure may be found in ■what was said in the nest to the last paragraph of the opinion of Heidtman v. City of Shaker Heights, 163 Ohio St., 109, 121, 126 N. E. (2d), 138, relative to a “technical abuse of discretion.”

Unlike in Green v. Acacia Mutual Life Ins. Co., supra, it does not appear from the journal entry of the trial court in the instant case that the motion for new trial might have been based upon a matter wholly within the discretion of the trial court, such as the weight of the evidence. See also Schaible v. City of Cincinnati, 157 Ohio St., 512, 106 N. E. (2d), 81; Schwer, Admx., v. New York, Chicago & St. Louis Rd. Co., 156 Ohio St., 115, 100 N. E. (2d), 197. Perhaps therefore the law as announced in Green v. Acacia Mutual Life Ins. Co., supra, now applies only where the journal entry of the Common' Pleas Court is such as to indicate that the motion for new trial might have been granted for some reason wholly within the discretion of the trial court. In' other words, where, as here, the journal entry indicates that the motion for new trial was granted only for errors of law and could not have been granted for any matter wholly within the discretion of the trial court, the order granting such motion for new trial may be a final order which can be reviewed by an appellate court (or perhaps such order, if based wholly upon supposed errors of law which do not amount to errors, may represent an “abuse of discretion”); and an appellate court may by its judgment set aside such order where it determines that the supposed errors of law, specified as grounds for granting the new trial, do not amount to errors of law.

As stated in the annotation at 28 A. L. E. (2d), 12, 40, “the position has been taken that the unforeseeable loss of consciousness does not constitute a defense if the driver at the time of the accident was violating a statutory duty. ’ ’

Ordinarily a defendant’s failure to have his vehicle driven upon the right half of the roadway would amount to a violation of Section 4511.25, Eevised Code, and thereby be negligence per se. Brandt v. Mansfield Rapid Transit, Inc., 153 Ohio St., 429, 92 N. E. (2d), 1. However, this court has held that one “who has failed to comply with a safety statute regulating the operation of motor vehicles may excuse such failure and avoid the legal imputation of negligence arising therefrom by establishing that, without his fault and because of circumstances over which he had no control, compliance with the statute was rendered impossible.” Satterthwaite v. Morgan, 141 Ohio St., 447 (paragraph two of syllabus), 48 N. E. (2d), 653. See also Bush, Admr., v. Harvey Transfer Co., 146 Ohio St., 657 (paragraph two of syllabus), 67 N. E. (2d), 851, and Kormos v. Cleveland Retail Credit Men’s Co., 131 Ohio St., 471 (paragraph four of syllabus), 3 N. E. (2d), 427.

It would appear therefore that the trial court should have charged that the burden was on defendant to establish that his loss of consciousness made it impossible to prevent his automobile going onto the wrong side of the road, and that he was not at fault in and had no reason to anticipate or foresee such loss of consciousness.

Apparently plaintiff made no request for any such charge'. If the trial court had refused to grant a new trial for failure to give such a charge, the Court of Appeals should have and this court undoubtedly would have held that such refusal was not reversible error. Rhoades v. City of Cleveland, 157 Ohio St., 107, 105 N. E. (2d), 2; State v. Tudor, 154 Ohio St., 249, 95 N. E. (2d), 385. However, the trial court undoubtedly still has considerable discretion in determining whether to grant a new trial for one of its errors of omission, even though it was not requested by counsel to rectify such error of omission when it occurred and prior to the time of a motion for new trial.  