
    McINTIRE, Co-Admr., et al. v. PATRICK et al. 
    Court of Common Pleas of Ohio, Butler County.
    No. CV95-06-0981.
    Decided April 1, 1997.
    
      
      John D. Smith, for plaintiffs.
    
      Thomas R. Schoenfeld and Lawrence E. Barbiere, for defendants.
   ANTHONY Valen, Judge.

Defendants, Isaac Patrick, Willie Crawford, and Green Lines Transportation, Inc., moved this court to set aside the verdict entered in the case herein on November 21, 1996, and the judgment entered in the case herein on December 2, 1996, and to enter judgment in favor of the defendants. Alternatively, the defendants moved this court for a new trial pursuant to Civ.R. 59. Plaintiffs responded to the motion. The motion is submitted pursuant to Loc.R. 3.06.

Defendants’ motion for judgment notwithstanding the verdict (hereinafter “JNOV”) contends that (1) the evidence adduced at trial demonstrated that defendant Isaac Patrick (hereinafter “Patrick”) lawfully parked, under Ohio law, his tractor-trailer on the entirety of the shoulder on State Route 63 on June 28, 1993; and (2) the Federal Motor Carrier Safety Regulations (hereinafter “Federal Regulations”) expressly permits the driver of a commercial motor vehicle a ten-minute window period before the obligation to place either fusees or reflective triangles and that (a) no evidence had been presented at trial suggesting that the vehicle driven by Patrick had been reposed at the site of the accident for ten minutes or more at the time of the accident in question and (b) insufficient evidence had been presented at trial suggesting that the failure to place either fusees or reflective triangles behind the defendants’ vehicle proximately caused Justin Mclntire’s death.

Defendants’ motion for new trial contends that (1) the judgment is not sustained by the weight of the evidence; (2) the judgment is contrary to law; and (3) the jury awarded excessive damages, appearing to have been given under the influence of passion or prejudice.

APPLICABLE LAW

Civ.R. 50(B) provides the applicable rule of law concerning a motion for judgment notwithstanding the verdict. Civ.R. 50(B) provides:

‘Whether or not a motion to direct a verdict has been made or overruled and not later than fourteen days after entry of judgment, a party may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion[.] A motion for new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment. If the judgment is reopened, the court shall either order a new trial or direct the entry of judgment, but no judgment shall be rendered by the court on the ground that the verdict is against the weight of the evidence.* * *”

Further, the Ohio Supreme Court has consistently held that in ruling on a motion for judgment notwithstanding the verdict a trial court is to apply the same test as that used in ruling on a motion for a directed verdict. Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 318, 662 N.E.2d 287, 293-294; citing Posin v. A.B.C. Motor Court Hotel, Inc. (1976), 45 Ohio St.2d 271, 275, 74 O.O.2d 427, 430, 344 N.E.2d 334, 338. McNees v. Cincinnati Street Ry. Co. (1949), 152 Ohio St. 269, 40 O.O. 318, 89 N.E.2d 138. “The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied.” Id. Therefore, in ruling on the motion for judgment notwithstanding the verdict, this court may consider neither the weight of the evidence nor the credibility of the witnesses. Id.

Civ.R. 59(A) provides the grounds on which a new trial may be granted. Specifically,-Civ.R. 59(A)(1) provides:

“(A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds:
“ * * *(4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice;
“(6) The judgment is not sustained by the weight of the evidence;
“(7) The judgment is contrary to law[.]”

DISCUSSION: MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

1. Stopping on the berm

The basis for the defendants’ argument that it lawfully parked on the berm of State Route 63 concerns the correct interpretation of R.C. 4511.66. Generally, this section deals with the prohibition against parking on highways and provides, in part:

“Upon any highway outside a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway if it is practicable to stop, park, or so leave such vehicle off the paved or main traveled part of said highway.”

Defendants contend that the phrase “paved or main traveled part of the highway” in R.C. 4511.66 must be read disjunctively, as opposed to conjunctively. Under a disjunctive interpretation of R.C. 4511.66 defendants argue that reasonable minds can come to only one conclusion: that, under Ohio law, defendant Patrick parked his vehicle legally.

According to Black’s Law Dictionary, the term “conjunctive” means “[c]onnect-ing in a manner denoting union.” Black’s Law Dictionary (5 Ed.1979) 274. “[T]he word ‘and’ is [considered] a ‘conjunctive.’ ” Id. A “disjunctive” term, on the other hand, is “[o]ne which is placed between two contraries, by the affirming of one of which the other is taken away; it is usually expressed by the word 'or/ ” Id. at 421.

However, this does not mean that a “disjunctive” term can never be read conjunctively. “In some usages, the word 'or’ creates a multiple rather than an alternative obligation; where necessary in interpreting an instrument ‘or’ may be construed to mean ‘and.’ ” Id. at 987; citing Atchison v. Englewood (1977), 193 Colo. 867, 373, 568 P.2d 13, 18. Therefore, this court must determine whether the term “or,” as it appears in the R.C. 4511.66 phrase “paved or main traveled part of the highway,” is to be read either disjunctively or conjunctively.

According to the defendants, the minimum requirement of R.C. 4511.66 is that an individual leave his vehicle off the main traveled part of the highway. The fact that the berm or shoulder of the highway is paved, defendants contend, is irrelevant to the question of whether an individual has at least parked off the main traveled part of the highway in compliance with R.C. 4511.66. Consequently, defendants argue that a disjunctive reading of R.C. 4511.66 would provide that an individual complies with this section if he stops his vehicle on the paved shoulder of the highway, but off the main traveled portion of the highway, as the statute does not require compliance with both alternatives.

Plaintiffs contend, however, that R.C. 4511.66 provides a prohibition against parking on any portion of the highway that is paved, regardless of whether the pavement encompasses an area larger than the main traveled portion of the highway, i.e., the shoulder or berm. The only exception to this prohibition, plaintiffs argue, is whether it is practicable to leave a vehicle off the paved or main traveled part of the highway. Consequently, a conjunctive reading of R.C. 4511.66 would provide that an individual complies with R.C. 4511.66 only if he stops his vehicle off both the main and the paved portion of the highway. Thus, the term “or,” as used in R.C. 4511.66, would be read to mean “and,” thereby denoting a union of the two terms “paved” and “main.”

Under a conjunctive determination, the only remaining issue is that of practicability.

In order to provide the parties with a clearer understanding of this court’s decision as to the correct interpretation of R.C. 4511.66, this court will divide the first sentence of R.C. 4511.66 into two parts. Part one will provide as follows: “Upon any highway * * * no person shall stop, park, or leave standing any vehicle * * * upon the paved or main traveled part of the highway.” Part two will provide as follows: “if it is practicable to stop, park, or so leave such vehicle off the paved or main traveled part of said highway.”

After a careful review of R.C. 4511.66, this court finds that part one of R.C. 4511.66 must be read conjunctively and part two must be read disjunctively, as R.C. 4511.66 provides for mutually exclusive applications of the phrase “paved or main traveled part of the highway.”

Part One of R.C. 4511.66

Part one of R.C. 4511.66 must be read conjunctively, meaning that no vehicle shall be stopped on the paved portion of the highway and no vehicle shall be stopped on the main portion of the highway. There can be no other interpretation of part one of R.C. 4511.66. Thus, part one of R.C. 4511.66 provides for a direct prohibition, i.e., “no person shall stop * * * upon the paved or main traveled part of the highway.” It does not provide an individual with an option to park on either one or the other.

Further, it is impossible for this court to read an exception into part one, for instance, that “no person shall stop * * * upon the paved [part of the highway, unless he has already stopped off the] main traveled part of the highway.” Therefore, as to the correct interpretation of part one of R.C. 4511.66, this court finds that no vehicle shall be parked on the paved portion of the highway and no vehicle shall be parked on the main portion of the highway.

This interpretation, however, does not end this court’s analysis of R.C. 4511.66.

Part two of R.C. 4511.66

As part two to R.C. 4511.66 establishes, part one is not absolute. The exception, however, is whether “it is practicable to stop, park, or so leave such vehicle off the paved or main traveled part of said highway.” (Emphasis added.) Therefore, this court finds that part two of R.C. 4511.66 must be read disjunctively, meaning that compliance with R.C. 4511.66 may still be achieved if an individual stops his vehicle off the main traveled part of the highway, but leaves it on the paved part of the highway.

However, practicability is a factual issue. Consequently, if it is practicable for an individual to stop his vehicle off both the paved shoulder of the highway and the main traveled part of the highway, he must do so. On the other hand, if it is practicable only for an individual to stop his vehicle off the main traveled part of the highway, his vehicle may remain on the paved shoulder of the highway, as that is all the statute requires. Therefore, this court finds that part two of R.C. 4511.66 must be read disjunctively and that compliance with R.C. 4511.66 is a question for the trier o' fact.

This court further finds that there was sufficient evidence in the record for the jury to determine the extent of defendant Patrick’s negligence, if any, namely, whether defendant Patrick’s act of parking on the shoulder of State Route 63 was practicable. This court also finds that it was not error to submit to the jury either the issue of the legality of defendant Patrick’s act of parking on the shoulder of State Route 63 or the issue of defendant Patrick’s use of ordinary care in so parking his vehicle. Therefore, the defendants’ Motion for JNOV as to the application of R.C. 4511.66 must be denied.

Prior to this court’s discussion of the next section concerning the Federal Motor Carrier Safety Regulations, and although the issue has not been raised, the court notes that the application of the preceding section concerning R.C. 4511.66 does not unduly burden the federal government’s regulation of interstate commerce. If it had, R.C. 4511.66 would be inapplicable to the case herein.

“As a general rule the regulation of interstate commerce is left to the federal government by the United States Constitution.” Panhandle E. Pipe Line Co. v. Pub. Util. Comm. (1978), 56 Ohio St.2d 334, 339, 10 O.O.3d 452, 454, 383 N.E.2d 1163 However, a state may impose local regulations affecting interstate commerce as long as such regulations do not impose “an undue burden on the flow of that commerce.” Id. Consequently, a “[regulation rises to the level of an undue burden if it may seriously interfere with or ‘impede substantially’ the free flow of commerce between the states.” Id., citing, S. Pacific Co. v. Arizona (1945), 325 U.S. 761, 767, 65 S.Ct. 1515, 1519, 89 L.Ed. 1915, 1923. This court finds that R.C. 4511.66’s prohibition against stopping on the paved or main traveled part of a highway does not substantially interfere with the Federal Motor Carrier Safety Regulations.

A more thorough analysis of the Federal Regulations follows in Section 2.

2. Federal Motor Carrier Safety Regulations

Defendants also argue that the Federal Regulations expressly permits the driver of a commercial motor vehicle a ten-minute window before the obligation to place either fusees or reflective triangles attaches and that (a) no evidence had been presented at trial suggesting that the ■ chicle driven by Patrick had been stopped at the site of the accident for ten minutes or more prior to the accident in question and (b) insufficient evidence had been presented at trial suggesting that the failure to place either fusees or reflective triangles behind the vehicle proximately caused Justin Mclntire’s death.

The relevant provision of the Federal Regulations, Section 392.22(b)(2)(ii), provides, in part:

“[DJuring the period lighted lamps are not required, three bidirectional reflective triangles, or three lighted fusees or liquid-burning flares shall be placed as specified in paragraph (b)(1) of this section within a time of 10 minutes.”

Therefore, the obligation to place triangles or fusees in accord with Section 392.22(b)(1) does not attach until a period of ten minutes has elapsed.

As the record in this case reflects, defendant Patrick did testify that he had not left his vehicle for more than ten minutes. However, the weight that this testimony has in determining the extent of Patrick’s negligence, if any, and the extent of Patrick’s credibility as a witness are for the jury to decide, not this court. Therefore, it was not error to submit this question to the jury for their determination.

Further, because this is a motion for JNOV, this court may consider neither the weight of the evidence nor the credibility of the witnesses. Gladon, 75 Ohio St.3d at 318, 662 N.E.2d at 294; citing, Posin, 45 Ohio St.2d at 275, 74 O.O.2d at 430, 344 N.E.2d at 338; McNees, 152 Ohio St. 269, 40 O.O. 318, 89 N.E.2d 138. These are matters for the trier of fact to decide. Therefore, the defendants’ motion for JNOV as to the issue of the federal regulations must be denied.

DISCUSSION: MOTION FOR NEW TRIAL

1. Whether the judgment is not sustained by the weight of the evidence

In support of their motion for new trial and their contention that the judgment is not sustained by the weight of the evidence, defendants argue that, putting aside the emotional element of a wrongful death case, there can be no question that the accident in question was caused by Justin Mclntire’s own negligence. To further support this contention, defendants point to certain facts of this case which they argue clearly establishes this contention. Further, defendants argue that if there was any negligence at all on the part of the defendants, Justin Mclntire’s own negligence clearly exceeded any negligence on the part of the defendants themselves.

Despite the defendants’ contentions, this court notes that the issue of the decedent’s own negligence for driving on the berm had been established and that the jury was instructed as to that negligence. Thus, there is no dispute that Justin Mclntire was, in fact, negligent.

As a result, the only remaining issues were whether the decedent failed to maintain an assured clear distance, thereby resulting in his own negligence, and whether the defendants were also negligent, as a result of defendant Patrick’s actions, in causing the death of the decedent.

As to the issue of assured clear distance, which this court will discuss further in the following section concerning the defendants’ claim that the judgment is contrary to law, this court simply notes that the issue of Justin Mclntire’s own negligence rests on a factual issue, namely whether the defendants’ vehicle represented a reasonably discernible object. Because that factual issue existed, this court was unable to instruct the jury that Justin Mclntire failed, if at all, to maintain an assured clear distance as a matter of law. Therefore, this court finds that there were genuine issues of material fact posed to the jury concerning the assured clear distance claim and the issue of a reasonably discernible object. This court further finds that the judgment of the jury, with respect to these issues, can be sustained by the weight of the evidence.

As to the defendants’ own negligence, this court finds that there were genuine issues of material fact posed to the jury as to whether the defendants’ violated R.C. 4511.66 and the federal regulations.

This court further finds that there were genuine issues of material fact presented in this case through which the jury could reasonably rely upon in determining the relative apportionment of fault of each party and that the judgment is sustained by the weight of the evidence. Therefore, the defendants motion for new trial must be denied as to the contention that the judgment is not sustained by the weight of the evidence.

2. Whether the judgment is contrary to law

In support of their motion for new trial and their contention that the judgment is contrary to law, the defendants argue that a new trial must be granted as this court declined to instruct the jury that it must find, as a matter of law, that the defendants’ tractor-trailer represented a reasonably discernible object, as a matter of law, and that Justin Mclntire violated the Ohio assured clear distance statute. To further support this contention, defendants’ cite paragraph two of the syllabus in Smiddy v. The Wedding Party (1987), 30 Ohio St.3d 35, 30 OBR 78, 506 N.E.2d 212, which held that “[a]n automobile, van, or truck stopped on a highway in a driver’s path during daylight hours is, in the absence of extraordinary weather conditions, a reasonably discernible object as a matter of law.” Defendants also contend that the refusal of this court to allow Officer Bowling to testify concerning whether, based upon the officer’s observations, the defendant Patrick had violated any provision of Ohio law concerning the parking of his vehicle was contrary to law. This court sustained an objection to this question on the grounds that it was an ultimate question for the jury to decide.

As to the decision in Smiddy, this court finds that the decision is distinguishable from the case herein. It is undisputed that the accident in this case occurred on the afternoon of a clear and dry summer day, much like the facts in Smiddy. However, in this case, unlike Smiddy, there were other extraneous circumstances, other than extraordinary weather conditions, which established a genuine issue of material fact as to whether the defendants’ vehicle constituted a “reasonably discernible object as a matter of law.” Specifically, evidence was presented to the effect that the highway upon which this accident occurred contained a slight curve and downgrade, or hill. In addition, evidence was presented that the discernibility of defendants’ vehicle would be restricted because of the existence of foliage in the background of the defendants’ vehicle. Therefore, the jury could not be instructed as to the discernibility of defendants’ vehicle simply on the basis of a standard of law presented in Smiddy and premised on distinguishable fact patterns. Smiddy is fact-specific and not fact-specific to the case herein.

To support this court’s contention that Smiddy was not intended to apply in all daylight driving condition cases, irrespective of the specific facts of each case, this court directs the parties’ attention to the Ohio Supreme Court’s decision in Sharp v. Norfolk & W. Ry. Co. (1988), 36 Ohio St.3d 172, 174, 522 N.E.2d 528, 530, which held “ ‘The the discernibility of an object, regardless of its size, should be a jury question where the evidence of discernibility is sufficient to make reasonable persons disagree is supported by policy reasons and the holdings of other jurisdictions as well. To begin with, the goals of the tort system are probably better served by a jury determination of the facts than by judge-made determinations of law.’ ” Citing Blair v. Goff-Kirby Co. (1976), 49 Ohio St.2d 5, 6, 3 O.O.3d 4, 4, 358 N.E.2d 634, 635.

The court in Sharp also held that “[especially in cases involving the assured-clear-distance statute, which, by definition, require evaluation of the conduct of the driver in light of the fact surrounding the collision, the judgment of a jury is more likely to achieve a fair result than is a judge-made rule of law.” Id.; citing, Junge v. Brothers (1985), 16 Ohio St.3d 1, 16 OBR 254, 475 N.E.2d 477. Thus, irrespective of the standard established in Smiddy, it still remains that the Ohio Supreme Court intends that the facts of each case will control judgment determinations when reasonable persons may disagree as to the liability of each party.

Nevertheless, the decision in Sharp is also distinguishable from the case herein in that the accident in Sharp occurred during nighttime driving conditions. Consequently, the court in Sharp distinguished its opinion from that which it established one year prior in Smiddy.

However, in distinguishing Smiddy, and with respect to the issue of reasonable discernability during daylight hours, the court in Sharp specifically stated that “[wjhile reasonable discernibility is rarely an issue in this vein, common sense dictates that discernibility of an object on a highway will most likely be an issue for the jury to resolve when an accident occurs during the nighttime hours.” (Emphasis added.) Id., 36 Ohio St.3d at 176, 522 N.E.2d at 531. In recognizing that reasonable discernability may “rarely” be an issue in cases occurring in daylight hours, this court believes that the Supreme Court recognized that the standard in Smiddy could not be read as an exhaustive determination of reasonable discernibility. Thus, instead of providing an absolute rule as to reasonable discernibility, the holding in Smiddy merely provides a standard by which courts are to follow. This case, however, is distinguishable. Therefore, the failure of this court to instruct the jury that the defendants’ vehicle represented a reasonably discernible object as a matter of law was not contrary to law.

As to the issue of assured clear distance and the instruction which this court gave the jury, Ohio Jury Instructions provides:

“A driver must not operate a vehicle at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead. The assured clear distance ahead is the distance between the vehicle he is operating and a reasonably discernible object in his path of travel. It constantly changes and is measured at any moment by the distance between the driver and any reasonably discernible object ahead of him in his path of travel.” 2 Ohio Jury Instructions, Section 225.21(5).

As is clear from this language, violation of the assured clear distance rule requires a determination of a reasonably discernible object. As this court previously stated, the determination of a reasonably discernible object in this case was for the trier of fact. Therefore, the failure of this court to instruct the jury that the decedent violated the assured clear distance rule as a matter of law was not contrary to law.

The next issue raised by the defendants is this court’s refusal to allow Officer Bowling to testify, based upon the offieér’s observations, whether the defendant Patrick violated any provision of Ohio law concerning the parking of his vehicle. Defendants argue that this decision is contrary to Evid.R. 704, which provides that “[testimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact.”

However, Evid.R. 704 must be read in conjunction with Evid.R. 701 and 702, each of which requires that opinion testimony be helpful to, or assist, the trier of fact in determining a factual issue.

Further, as the Ohio Supreme Court held in paragraph three of the syllabus in Bostic v. Connor (1988), 37 Ohio St.3d 144, 524 N.E.2d 881:

“While testimony on an ultimate issue to be decided by the trier of fact is not per se inadmissible in Ohio, it is within the sound discretion of a trial court to refuse to admit the testimony of an expert witness on an ultimate issue where such testimony is not essential to the jury’s understanding of the issue and the jury is capable of coming to a correct conclusion without it.”

Therefore, pursuant to Bostic, and as being within the sound discretion of this court, the exclusion of the testimony of Officer Bowling was not contrary to law.

3. Whether the jury awarded excessive damages, appearing to have been given under the influence of passion or prejudice

In support of their motion for new trial and their contention that the jury awarded excessive damages, appearing to have been given under the influence of passion or prejudice, the defendants argue that (1) realistically speaking, the loss to the McIntire family was no greater than would be the case with the loss of any child, certainly as profound a loss as one can endure; (2) common experience reflects that the amount of damages awarded in this case exceeds those found in other cases involving unemancipated minors without persons to support; (3) the members of the jury in the case herein were out to send a message; (4) the principal defendants in this action were African-Americans and the jury was entirely Caucasian, resulting in the possibility of influence; (5) the six o’clock news on the evening of the jury’s first day of deliberations carried a story that an automobile/tractor-trailer multiple fatality in Brookville, Indiana, involving teenagers had occurred; and (6) the plaintiffs’ economist, John Burke, Jr. should not have been permitted to testify as to the “reasonably expected earning capacity” of Justin Mclntire because Justin’s parents had testified that they had no expectation of future support.

As to all of the defendants’ arguments, this court finds that the jury did not award excessive damages. In making this finding, this court notes that the defendants’ arguments are based on broad generalizations without any type of legal or factual support. As to the testimony of John Burke, Jr., this court directs the defendants’ attention to the transcript of proceedings in this case and specifically to the testimony of the decedent’s parents, who did not testify that they had no expectation of future support. This evidence is not in the record and cannot be a foundation upon which this court will rule that the jury award is excessive. Without proper support for any of their contentions, this court cannot find that the jury’s award was excessive or that it was made under the influence of passion or prejudice.

CONCLUSION

It is the judgment of this court that the defendants’ motion for judgment notwithstanding the verdict is not well taken and is hereby OVERRULED.

It is the judgment of this court that the defendants’ motion for new trial is not well taken and is hereby OVERRULED.

Motions overruled. 
      
      . This finding is contrary to the finding in Campbell v. Daniels Motor Freight, Inc. (1966), 8 Ohio App.2d 244, 37 O.O.2d 240, 221 N.E.2d 470, which was offered by the defendants in this case and which held that "a vehicle may be legally parked, though not disabled, either when it is parked off the paved part of the highway or when it is parked off the main traveled part of the highway.” Id. at 251, 37 O.O.2d at 244, 221 N.E.2d at 475. With respect to Campbell, this court believes that such a general holding is impracticable to the proper interpretation of R.C. 4511.66 as it does not account for the issue of practicability, which is a factual issue, and one which cannot be dispositive in every case. Further, Campbell is not binding on this court.
     
      
      . Defendants cite the Ohio Supreme Court decision in Thompson v. Ford (1955), 164 Ohio St. 74, 57 O.O. 96, 128 N.E.2d 111, syllabus, as authority for the proposition that compliance with a statute removes the issue of ordinary care from juror consideration. However, in Thompson the court found that the defendant complied with the statute as a matter of law. Compliance with the statute herein was a question of fact. Therefore, we find that Thompson is distinguishable from the case herein and that it was not error to submit the issue of ordinary care to the jury because defendant Patrick’s compliance with the statute was a question of fact, not a question of law.
     
      
      . The genuine issues of material fact which existed as to the issue of a reasonably discernible object are discussed in further detail in defendants’ motion for new trial, concerning whether the judgment is contrary to law.
     