
    Ashdown, Admx., v. Tresise.
    
      Negligence — Contributory negligence assumes existence of negligence — Collision between motorcycle and parked automobile — Charge to jury — Instruction not to consider defendant’s negligence, upon finding contributory negligence, erroneous — Automobile on highway not an obstruction— Requiring motorcycle to be operated so as to stop within range of headlights — Verdict not reversed as not supported by evidence, where evidence conflicting — Evidence —Habits of deceased motorcycle driver during lifetime incompetent.
    
    1. Contributory negligence, while fatal to plaintiff, is a mere incident with respect to question of negligence, and negligence of defendant is the first inquiry of jury, since there can be no contributory negligence unless there is negligence.
    
      2. In action for wrongful death as result of collision of motorcycle with automobile, instruction submitting issue of contributory negligence and authorizing jury, if they found contributory negligence, not to consider defendant’s negligence, held erroneous in that, contributory negligence being a subsidiary element of question of negligence itself, the latter must be considered and determined before there can be intelligent judgment as to whether contributory negligence exists.
    3. In action for death in collision between motorcycle and automobile parked, instruction making it duty of decedent to have kept his machine under control so as to be able to stop it within range of light in case of obstruction in street held erroneous as being misleading, in view of fact that automobile on highway is not an obstruction.
    4. A reviewing court cannot disturb verdict on ground it was not supported by evidence, simply because there exists a conflict therein.
    5. In an action for death in automobile collision, alleged to have resulted when decedent riding motorcycle struck defendant’s car, parked on street, evidence bearing on habits of decedent during his lifetime held properly excluded as incompetent.
    (Decided June 6, 1927.)
    Error: Court of Appeals for Cuyahoga county.
    
      Messrs. Cline & Patterson and Mr. Louis H. Winch, for plaintiff in error.
    
      Messrs. Dustin, McKeehan, Merrick, After & Stewart, for defendant in error.
   Sullivan, P. J.

This cause is here on proceedings in error from the court of common pleas of Cuyahoga county. The action below was for the wrongful death of the decedent of plaintiff in error, as a result of an automobile collision occurring at about 9:30 p. m., October 27, 1924, at East 111th street, in the city of Cleveland.

It appears from the record that the automobile of the defendant in error was parked about one foot from the curb, pointing in a northerly direction, and while so situated, the decedent, while operating a motorcycle, came in contact, in some way, with the parked automobile, as he was found dead, with his motorcycle overturned, some few feet distant from the automobile, parked as noted. There were no eyewitnesses, and consequently the evidence, if it be of a substantive nature, as to the question at least of the proximate cause of the injury, is circumstantial and consists of inferences, deductions, and conclusions arising from the facts and circumstances of the case.

There are four grounds of error, to wit, that the verdict is not supported by the evidence; that there was error in excluding evidence offered by the plaintiff; that the court erred in giving the jury certain requests before argument; and that there was error in the court’s charge.

In substance, the allegations of the petition are that the decedent met his death by the overturning of his motorcycle with a side car attached, while operating it in a northerly direction, on the date in. question, when he collided with the automobile of the defendant, Ralph E. Tresise, which waS parked without proper lights contrary to the ordinances of the city of Cleveland.

It is specifically alleged that Sections 41 and 41-ís of ordinance No. 53569-a of the city of Cleveland, relating to the question of lights on automobiles that are parked on the side of a highway, were violated in that the defendant unlawfully permitted his automobile to stand upon the highway without a red light or a white light upon the rear or front thereof, and without a light visible two hundred feet from the front or rear of the car.

It is further alleged that the defendant failed to give any notice or warning to the traveling public of that situation and condition, and, as a consequence, it is claimed that the death in question resulted.

The answer, while not denying the collision, sets up that it did not occur in the manner set forth in the plaintiff’s petition, and denies any negligence whatsoever as charged in the allegations of the petition. Certain sections of the ordinances of the city of Cleveland were also pleaded in the answer, providing that vehicles, such as motorcycles, shall be driven in a careful manner, with due regard for the safety of pedestrians and of other vehicles, and shall exhibit, while in use, after ce,rtain hours, a white light visible within a reasonable distance in the direction toward which the motorcycle is proceeding, and then it is alleged that the death resulted from decedent’s own negligence and that therefore his administratrix would not be entitled to recover.

Thus it will be seen that in the absence of eyewitnesses the issues raised as to the provisions of the ordinances pleaded, with respect to lights, are to be determined largely from the circumstances surrounding the case immediately after the accident, although there is some evidence of a positive nature as to the lights from witnesses who made observations before the fatality.

As to the accident itself, however, the jury in order to reach a logical conclusion was bound to look to the circumstances and draw deductions from the situation immediately after the accident. Upon all the issues raised there is a strong conflict in the evidence in the entire record as to what actually occurred, because of the absence of any eyewitnesses. Thus we have a case whose outcome peculiarly hung in the balance and required from its very nature that the trial court, in its instructions to the jury, should be plain and specific in stating the issues as they arose from the pleadings and in instructing that tribunal as to its duties in viewing and weighing the evidence as it applied to the structure built by the issues arising from the pleadings and the evidence.

With these duties and obligations resting upon the trial court under the unusual circumstances of the case, we find the plaintiff in error, upon the rendering of a verdict by the jury in favor of the defendant in error, taking exception to certain portions of the charge, and strenuously urging that because they were given to the jury the plaintiff in error was prejudiced thereby, and that therefore a reversal of the judgment should be had.

One of the charges excepted to is as follows:

“Now, ladies and gentlemen, you will proceed with the consideration of all the evidence in this case. As I have said to you before, if from a fair and impartial consideration in this case you find that the plaintiff’s decedent was negligent or that he was guilty of contributory negligence, and that the negligence of the decedent was the proximate cause of this injury or accident, or that his negligence contributed in any manner to his injury or the accident, then I say to you that would end your consideration of the case and your verdict should be for the defendant. But if upon consideration of these issues of the case you should find in favor of the plaintiff, that the plaintiff’s decedent was free from negligence, any negligence that contributed to the accident, then you will pass to the next issue, and that is, Was the defendant negligent as charged in the petition? If you find that the defendant was negligent in violating the provisions of these ordinances and statutes which I have read to you, and that this violation on the part of the defendant was the proximate cause of decedent’s injury, then you should find upon that issue in favor of the plaintiff and against the defendant, and your verdict will be for the defendant. ’ ’

It is urged that the court accentuated and overemphasized the question of contributory negligence, and thus magnified it until the question was beyond those proportions in relation to the question of negligence itself which the law prescribes, so that the result was prejudicial to the plaintiff’s cause, for the reason that its tendency was to create an impression in the minds of the jury as to the attitude of the court, and that, therefore, compliance with orderly procedure in the instructions to a jury was a duty ignored by the court.

In the structure of the ease, appearing from the pleadings, we find a petition, an answer, and a reply.

The allegations of the petition charged negligence against the defendant, and, if that negligence is established and is the proximate cause of the death, the plaintiff is entitled to recover, unless he himself was guilty of contributory negligence, as shown by way of defense in defendant’s proof or from developments arising while plaintiff is mak-. ing ont his case, to the extent at least of raising a presumption that requires rebuttal. This is the order, following the pleadings, upon which the case itself came into court and was submitted to the jury, and under the authority of the Supreme Court, very often set forth, it became the duty of the court to present the issues as they were raised in the pleadings, and in the manner in which they were raised in the pleadings, when the manner and method conform to the law, as in the present case.

Contributory negligence, while fatal to a plaintiff, is a mere incident with respect to the question of negligence. The negligence of the defendant is the first inquiry of the jury, for the reason that there can be no contributory negligence unless there is negligence, and if no such negligence is found there is no need for any inquiry upon the question of contributory negligence. The latter is a contribution to negligence, and that is why it is called contributory negligence. It assumes the existence of negligence. Contributory negligence is a component part and may be a very infinitesimal part of negligence itself. Contributory negligence is the branch, and negligence is the tree itself. Therefore, when the court instructed the jurors that if they should find there was contributory negligence, there was no need to make any further inquiry as to whether there was negligence, because contributory negligence would in and of itself defeat recovery. This structurally, elementally and logically, in our judgment, does violence to the theory of negligence in a personal injury case, because contributory negligence being a subsidiary element of the question of negligence itself, the latter must be considered, analyzed, and determined before there can be an intelligent judgment as to whether contributory negligence exists. This is the orderly procedure.

Thus in addition to what we consider the inherent, structural infirmities of the charge in question, there still remains in this departure from the ordinary rule of the statement of the issues the danger of creating the impression in the jury’s mind that the court had a certain mental attitude •that was favorable to one of the parties of the case and unfavorable to the other, and in the instant case it would be the plaintiff in error that naturally and logically would be affected.

Because of the absence of eyewitnesses the instant case naturally hung upon the weight of a hair, which might turn the scales one way or the other, depending upon the instructions to the jury in a case so unusual and peculiar, which necessitated deductions and inferences in order to reach a verdict which ordinarily is reached from the testimony of living witnesses and circumstances detailed by them in open court. That a proposition of law may be stated inversely, in our judgment, is no ground of error, because a proposition of law does not depend upon the method or manner in which it is stated, but a jury is composed of laymen, and the charge of a court is called “instructions,” and the instructions should follow the line of orderly and logical procedure, especially when to do the contrary, as in the case at bar, would have: a tendency to create wrong impressions in the-jury’s mind and prevent the jury from determining the issue of contributory negligence from the existence of negligence, the very source of contributory negligence.

In a suit to recover on an insurance policy, where the question of waiver as to notice is in issue, the court would scarcely be justified in instructing the jurors that they should first determine the question of waiver, and that, if they decided that there was no waiver of notice, therefore the plaintiff could not recover because no notice had been given. That sort of an instruction would deprive the jury of viewing the entire field in order to gather therefrom whether there was a waiver.

The same illustration grows out of a suit on a promissory note where the note is offered in evidence after the identification of the signature of the maker. There is a presumption of law immediately following that the note was for a consideration and in due course. Now, if the court should instruct the jury in such a case that it should first proceed to determine whether there was any consideration for the note, and if thereupon the plaintiff recovered, that would be depriving the jury of the duty of giving a full consideration to all of the evidence in the case bearing on all the issues, and then and thereupon deciding whether there was any ground for the issue raised as to nonconsideration.

In other words, that method of instruction by which the jury may not be misled, and which obligates that tribunal to consider the whole before it can decide a part, is the method by which substantial justice may be more naturally and logically obtained.

It is the judgment of the majority of the court that in giving the charge above quoted there is prejudicial error.

Another assignment of error is that prejudicial error was committed by the court when he gave the following charge:

“I say to you further that it was the duty of decedent in driving his motorcycle on the public highway on this night to keep it under such control that the car could be stopped within the range of the light produced from the light thereon, and it was the duty of the plaintiff’s decedent to operate his car at such a rate of speed that, if there was an obstruction in the road or street, he could stop within the distance that the obstruction could be seen from the light on his machine.”

In the instant case the machine of defendant,, parked within a foot of the curb, was on a public highway known as East 111th street in the city of Cleveland. The charge above quoted was given the jury as if this automobile built for the public highway, with a right to travel thereon, and to stop thereon at the curb in obedience with the provisions of the ordinance, was an obstruction. We do not; think this is true. If the automobile in question was an obstruction while it was parked under the provisions of the ordinance, if such was a fact, then it would be no less an obstruction when it was traveling upon the streets of the city. There is a difference between an obstruction in a highway and a vehicle which has a perfect right to travel on a highway, and be and remain on the highway, and under the instruction aforesaid given there was laid down before the jury as law the proposition that a vehicle, like the one parked in the instant case, was ap obstruction to the highway, which, being so, involved upon decedent the legal responsibility which applies under the law to obstructions, but 'which does not apply to vehicles that have a right in the highway, and whose exclusive purposes are for the highway alone. Therefore we think the charge was misleading, and burdened the decedent with a responsibility as to the exercise of ordinary care which the law does not impose upon him.

We quote the following authorities to bear out our views upon this question:

“An obstruction is a blocking up; filling with obstacles or impediments; an impeding, embarrassing, or opposing the passage along and over the street, and, to constitute it such, it need not be such as to stop travel. Shade trees from 25 to 40 feet high, and about 12 inches in diameter, standing within the sidewalk, from 8 to 15 inches from the curb, are obstructions.” Chase v. City of Oshkosh, 81 Wis., 313, 319, 51 N. W., 560, 562 (15 L. R. A., 553, 29 Am. St. Rep., 898).

“The word ‘obstruct,’ in its ordinary sense, means to stop up, and wholly prevent travel, upon a road, or render it unfit for travel.” Newburyport Turnpike Corp. v. Eastern Railroad Co., 40 Mass. (23 Pick.), 326, 328.

See, also, Overhouser v. American Cereal Co., 118 Iowa, 417, 92 N. W., 74, 75; Patterson v. Vail, 43 Iowa, 142, 145; Gorham v. Withey, 52 Mich., 50, 17 N. W., 272; Ray v. City of Manchester, 46 N. H., 59, 60, 88 Am. Dec., 192.

While there have been some holdings with regard to an obstruction in a public highway that a driver should be able to stop within the distance of his lights, yet there are no holdings anywhere as to regular vehicular traffic on a public highway to the effect that automobile drivers can go no faster than that speed which will diminish into a dead halt within the distance of the lights.

We think the learned and respected court was in error in giving this charge, and it was prejudicial because it intensified and exaggerated the burden of law resting upon decedent’s shoulders, and all this bore upon the question of the exercise of ordinary care, and the jury might well have come to the conclusion from the upset motorcycle and side car that the decedent was traveling faster with his motorcycle than that speed which would allow him to stop within the distance of the light. The presumption of law is that a jury follows the instructions of the court, and whether the instruction comes by way of direct or indirect method is immaterial providing it makes its impression or tends to make its impression upon the jury. We are of the opinion that this instruction was prejudicial to the rights of the decedent.

As' to the assignment of error that the verdict is not supported by the evidence, that was submitted to the jury, and a reviewing court cannot disturb the verdict on that ground alone, simply because there is a conflict in the evidence.

As to the exclusion of evidence bearing upon the habits of the decedent during his lifetime, in a case where there is an absence of eyewitnesses, while there are many authorities outside of Ohio declaring such evidence competent, we do not feel that it is the doctrine in Ohio, notwithstanding such high authority as Jones on Evidence, which seems to bear out the theory of these decisions foreign to our own state. If there was any ground for admitting such evidence it would be upon the doctrine that such evidence was the best evidence of which the case from its nature was susceptible, but we do not think that that doctrine would apply in the present case. Undoubtedly, as bearing upon this question, evidence could be offered as to tbe age, health, and other similar matters concerning the decedent, and, in addition thereto, the length of time he had driven a motorcycle, and evidence of that nature we are not prepared to say is incompetent, but where it is sought to introduce acts and conduct upon other occasions of a similar nature, in order to prove the contention of the instant case, we are inclined to the opinion that it is contrary to sound legal doctrine as administered in Ohio. We therefore hold there was no error in the holding of the court in this respect.

Holding these views, the judgment of the lower court is hereby reversed, and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Levine, J., concurs.

Vickery, J.,

dissenting. This cause came into this court on a petition in error to the common pleas court of Cuyahoga county, to reverse a judgment in favor of the defendant below.

The error complained of, and the reason given by the majority of the court for its reversal of the case, is error in the charge of the court. I have gone over this charge very carefully, and I have read the analysis that the trial judge made of this charge upon hearing of the motion for a new trial, and I cannot see how this charge could have misled the jury, or have been prejudicial, and I think the case ought to have been affirmed.

The whole question was fairly submitted to the jury ou a charge that I think is free from criticism, and the jury found in favor of the defendant. Now, the truth is that here was an automobile parked properly on the right side of the street close to the curb, and I think the evidence shows conclusively in this case that there were taillights burning and headlights burning, and that the owner of that automobile was guilty of no negligence whatever. He did what every person who drives an automobile does every day. He parked his car on the proper side of the street, in a proper way, close to the curb, and turned on his parking lights, and the parking lights, as the evidence shows in this case, were headlights and taillights, and, so far as it appears, these were burning. True, there is some evidence on the part of the plaintiff below, that, when parties came there, some said they did not see a taillight, but I think the overwhelming proof on that question was the other way, and the jury apparently took that view of it. Now when the car was standing in that position, the plaintiff’s decedent was riding on a motorcycle, equipped with a side car, with no one in it. He was going in the same direction that the automobile was headed; that is, he came up from behind it, and apparently forgot that he had a side car attached to his motorcycle and came too close to the automobile, and the side car struck the automobile standing by the curb. Nobody saw the accident, and they found the plaintiff’s decedent quite , a distance ahead of this parked automobile, underneath his motorcycle. He died immediately, or perhaps was dead when they found him under the motorcycle.

Now, as already said, no one saw this accident, but this was the situation, as afterwards demonstrated. Apparently this man was going at a high rate of speed and misjudged his distance from the curb; perhaps he had forgotten there was a side car to his motorcycle, and the side car struck the left side of the automobile that was parked by the curb and precipitated him violently forward, which resulted in his death.

• Now complaint is made of the charge of the court, and I believe the only fault that the majority of the court find is in the charge of the court. One would think, at first blush, that the court in the charge did dwell considerably upon the negligence of the plaintiff’s decedent, but it must be remembered that there were no eyewitnesses to this accident, and one could only surmise as to the cause of plaintiff’s decedent’s death by the results found after the accident, or rather the condition found after the accident.

Now the question as to whether there was negligence on the part of the defendant was plainly and accurately submitted to the jury, and the jury found there was no negligence. Then it became largely a question of the negligence of the plaintiff’s decedent, not of contributory negligence, but the negligence of the plaintiff’s decedent, which negligence was the proximate cause of this injury. The court, I think, reviewed that question fairly, and fairly presented it to the jury, and the jury was left to draw its inferences from it, and apparently drew them, and that is that there was no negligence on the part of the defendant below, and that there was negligence on the part of the plaintiff’s decedent, and that that negligence was the proximate cause of his injury.

Now, that being the state of this record, I cannot accede to the judgment of the majority of this court. I think the judgment below was right. I think the court in his charge properly analyzed the case, and I am constrained, therefore, to dissent from the majority opinion, for I think this case should have been affirmed.  