
    The Martin Baking Co. v. Tompkinson.
    
      (Decided December 5, 1927.)
    
      Messrs. Dustin, McKeehan, Merrick, Arter é Stewart, for plaintiff in error:
    
      Mr. S. M. Young, for defendant in error.
   Sullivan, P. J.

This cause is here on error from the court of common pleas of Cuyahoga county, and it is sought to reverse a judgment for personal injuries in the sum of $3,000, rendered in the court below in favor of the plaintiff, Olive Tompkinson, and against the defendant, the Martin Baking Company, and the grounds of error are that, under the record, the plaintiff was guilty of contributory negligence as a matter of law, and hence that there was no liability against the defendant, and that the court committed prejudicial error in refusing to charge the jury, as requested at the close of the general instructions, upon the question of contributory negligence, as defined by our Supreme Court in the case of Chesrown v. Bevier, 101 Ohio St., 282, 128 N. E., 94

On September 21,1925, in tbe middle of tbe afternoon, while the plaintiff was attempting to cross from tbe south side of Euclid avenue, near Sixth street, to a safety zone, for tbe purpose of taking an east-bound street car, she was struck, between tbe curb and tbe zone, by an automobile truck owned and operated by tbe defendant, which was going in an easterly direction on tbe south side of Euclid avenue in the same direction as tbe car which plaintiff intended to take as a passenger.

It appears unchallenged in tbe record that tbe plaintiff left tbe curb to cross Euclid avenue to the safety zone at a time when tbe automobile truck, in conformity to tbe traffic signal, was proceeding towards her in an easterly direction, and distant but a very few feet from her. One of tbe claims of tbe plaintiff is that tbe driver of tbe truck was guilty of careless driving, under tbe ordinances of tbe city, and was presumptively going at an excessive rate of speed, but there is no conflict whatsoever on tbe point that plaintiff proceeded across tbe street towards tbe safety zone while the truck, in her immediate vicinity, was proceeding, comparatively alone, toward her as she was attempting to reach tbe street car.

If there were any conflict as to tbe evidence upon this essential point, it would be tbe duty of tbe court to submit to tbe judgment of tbe lower court and the verdict of tbe jury, because it would be a question of fact in conflict, of which that tribunal would be tbe final judge; but, inasmuch as it is not disputed, and tbe plaintiff herein admits that, while tbe truck was in sight, she did not see it, this court is bound to follow not only its own view of tbe law, under the record in this case, bnt the decisions of this very court upon a similar state of facts, not only by the appellate court of this district, but by the circuit court of Hamilton county, which immediately preceded the organization of the Court of Appeals under the Constitution of 1912.

In the case of MacDiarmid Candy Co. v. Schwartz, 11 Ohio App., 303, in an opinion by Lieghley, J., concurred in by Grant and Carpenter, JJ., there was a reversal and a remanding of the cause. The first paragraph of the syllabus reads:

“One who alights from a street car, passes behind the same, and thence into the pathway of an approaching automobile, is as a matter of law guilty of contributory negligence, which prevents a recovery of damages, by failing to look before crossing the street, or by looking and failing to see the automobile, or by proceeding across the street in front of such approaching machine after seeing the same. ’ ’

It will be noticed that the court makes three divisions, either one of which determines what is contributory negligence as a matter of law in cases like the one at bar, which would prevent a recovery:

First: “By failing to look before crossing the street.”

Second: “By looking and failing to see the automobile.”

Third: “By proceeding across the street in front of such approaching machine after seeing the same.”

To affirm the judgment in the instant case would be in direct conflict with the law as laid down in the MacDiarmid case, supra.

In the case of Shott, Adm’r., v. Korn, 17 C. C. (N. S.), 393, decided July 23, 1913, by the Hamilton county circuit court,, Swing, Jones, and Jones, judges, we find the same question arising, and the court in the syllabus of the case holds as follows: “It is not error to instruct a verdict for the defendant owner of an automobile in an action for the death of a pedestrian, where it appears that the deceased attempted to cross a well-lighted street in front of the approaching machine, which was in full view with its lamps burning. ’

Again, in the Shott case, at page 394, appears the following:

“Prom the evidence it seems clear to us that Shott was guilty of contributory negligence, and that his death was caused by it. The machine was in plain view for quite a distance before he started to cross the street. There was nothing to obstruct his view, and there was nothing to distract his mind or prevent him from exercising the prudence which he should have exercised in looking for approaching vehicles when about to cross the street. He seems to have deliberately walked in front of the approaching machine. And under the evidence, we think, the court was justified in directing the jury to return a verdict for the defendants.”

In Schmidt v. Schalm, 2 Ohio App., 268, we find the same principle upheld, as will be seen by the following language of the syllabus:

“A woman who attempts to cross a street in front of an approaching automobile in broad daylight, and is struck and injured, is not entitled to a verdict for damages against the owner of the machine, for the reason that she was manifestly guilty of con-tributary negligence, either in failing to look in the direction from which vehicles might be expected, or in stepping in front of the machine notwithstanding the evident peril in so doing.”

We are clearly of the opinion that these authorities, together with the decisions of our Supreme Court, make this doctrine under consideration the well-settled law of Ohio, and there are plenty of authorities in the decisions of our own Supreme Court which establish this doctrine as the settled law in this state with respect to the doctrine of contributory negligence in cases like the one at bar.

Therefore, in view of these authorities and their applicability to the record in this case, we hold that there was error of law in the judgment and verdict below.

At the conclusion of the court’s instructions to the jury, a specific request was made that, in addition thereto, the court instruct the jury as follows:

“If the jury find that the plaintiff was negligent and that her negligence directly contributed in the slightest degree to cause her injuries, that the jury’s verdict must be for the defendant, and this is true although the jury should also find that the defendant was negligent. ’ ’

The court refused this charge on the ground that it was an undetermined question, so we are told by counsel, and, further, for the reason that the language, “contributed in the slightest degree,” was employed.

It is contended that the court did not commit error in this respect, because it substantially charged the law of contributory negligence to the jury before the request was made. The court, in its general charge, used the language, “any act of negligence,” and the language of the request, as above noted, is “contributed in the slightest degree. ’ ’

Now, it might be said that the view which the court, took below as to the similarity and significance of expression was well taken, had not the Supreme Court decided, in Chesrown v. Bevier, 101 Ohio St., 282, 128 N. E., 94, that the language, “contributed in the slightest degree,” was a correct statement of the law in Ohio with respect to the acts of contributory negligence by a person suing for recovery. The court distinguished between the use of the word “any” and the word “slightest,” and because of this the significance in the difference between the use of the two expressions is acknowledged and noted, otherwise it might be said that the language used by the trial court, “any act of negligence,” made it unnecessary to grant the request of the defendant below to use the words ‘ ‘ contributed in the slightest degree.”

The language of the opinion of the Supreme Court infers that the word “any” was preferable to that tribunal, but the court added that “contributing in the slightest degree ’ ’ was a correct statement of the law, and this pronouncement was made for the purpose of distinguishing the. difference between the two phrases, and pronouncing judgment' upon the phrase with the word “slightest” in it as the one which represented a correct statement of the law.

In the absence of this analysis by the Supreme Court, we would be loath to hold that there was any prejudicial error because of the refusal to give the instruction requested, but in the light of the language of the Supreme Court in analyzing the distinetion and difference in the phrases it is onr judgment, that, notwithstanding what the court had already said in its general charge, it was prejudicial error to refuse to give the instruction requested.

Inasmuch as the doctrine of last chance was not an issue in this case, under the present state of the record, we do not render final judgment for the plaintiff in error, but with these views the judgment of the lower court is hereby reversed for error of law, and the cause remanded for further proceedings under the statute.

Judgment reversed and cause remanded.

Levine and Vickery, JJ., concur.  