
    Cook v. Hunter.
    (Decided July 10, 1935.)
    
      Mr. E. Guy Hammond, for plaintiff in error.
    
      Messrs. Naef & McIntosh, for defendant in error.
   Nichols, J.,

of the Seventh Appellate District, sitting by designation in place of Washburn, J., of the Ninth Appellate District. John C. Cook brought his action in the Court of Common Pleas of Summit county against Frank J. Hunter for damages for personal injuries received by plaintiff when the automobiles of plaintiff and defendant collided in the center of the intersection of two improved highways at West Richfield, an unincorporated hamlet in that county.

The defendant was approaching said intersection from the right of plaintiff, and the highway upon which the defendant was then operating his automobile was a main market and intercounty highway, the highway upon which plaintiff was proceeding not being a main thoroughfare, and it therefore follows that the defendant had the right of way over plaintiff at this intersection, provided defendant was then operating his motor vehicle in a lawful manner. Sections 6310-28, 6310-28a> and 6310-31, General Code.

The plaintiff in his petition charged the defendant with negligence as follows:

“1. At the time of and immediately prior to said accident the defendant operated his said motor vehicle upon said highway at a speed greater than was reasonable and proper, having due regard to the traffic, the surface and width of the highway, and other conditions then and there existing, to-wit, at a speed of fifty miles per hour.

“2. Defendant operated his motor vehicle at the time of and immediately prior to said accident at a speed greater than would permit him to stop within the assured clear distance ahead.

“3. In driving his said motor vehicle upon said highway, and in approaching the point of collision aforesaid, the defendant failed to guide his said vehicle to the right or to the left, as in the exercise of ordinary care he could have done, so as to avoid collision with plaintiff’s car.

“4. In operating his said vehicle upon the highway approaching said intersection and the point of collision as aforesaid, defendant failed to have the same under control.

“5. Plaintiff being within the intersection under favor of the green light, defendant sought to pass through without giving plaintiff opportunity to clear the intersection after change of the light.

“6. Defendant operated his motor vehicle on the highway at the time and place of said accident without due regard for the safety and rights of drivers and occupants of other vehicles, and so as to endanger the life, limb and property of other persons while in the lawful use of said highway.”

The answer admitted the location and direction of said highways, the location of the traffic light, the collision, and that plaintiff received some injuries, but denied the extent thereof, denied the .negligence of defendant, alleged that defendant had the right of way because approaching from the right on a main thoroughfare, and alleged that the collision and plaintiff’s injuries were caused wholly and solely by the negligence of plaintiff, in that he drove his automobile into the intersection when the traffic light showed red against him; in that he failed to yield the right of way, to which defendant was entitled; in not keeping a proper lookout; in not having his ear under control; in not stopping his car before entering the path of defendant’s vehicle; and in not stopping or changing the course of his automobile so as to avoid the collision, which plaintiff knew, or in the exercise of ordinary care should have known, would likely result if he continued in his course.

The reply denied the negligence of plaintiff.

The cause came on for trial to the court and jury, and at the conclusion of the plaintiff’s evidence, the court sustained a motion then made by defendant for a directed verdict in defendant’s favor, on the ground that the minds of reasonable men, on this evidence, could not differ as to whether or not the plaintiff was negligent in the operation of his automobile, and that the plaintiff, upon the evidence, was guilty of negligence that directly and proximately contributed to the collision and his injury.

Error is prosecuted to this court upon the sole ground that the trial court erred in sustaining the motion of defendant for a directed verdict, that being the only ground alleged in plaintiff’s motion for a new trial.

It must be conceded that if, from plaintiff’s evidence, reasonable minds can reach no conclusion except in favor of the defendant, it is error for the trial court to overrule the defendant’s motion for a directed verdict. Metropolitan Life Ins. Co. v. Huff, 128 Ohio St., 469, 191 N. E., 761 (Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246, approved and followed).

In determining whether the motion of defendant for a directed verdict in his favor, at the conclusion of plaintiff’s evidence, should have been sustained, this evidence must be given that construction most favorable to the plaintiff. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246.

It is contended here by defendant in error that, in construing this evidence, the trial court was required to disregard the fact that a traffic light was located at the intersection of these two roads, because -the plaintiff failed to offer proof that s,uch light was erected and maintained by and with the consent and approval of the director of highways, as provided in Section 6906, General Code, and we are cited to the decision of this Court of Appeals in the case of Fred W. Albrecht Grocery Co. v. Overfield, 32 Ohio App., 512, 168 N. E., 386, wherein this court, on page 518, speaking with reference to certain stop signs erected at street intersections in the city of Akron, in the absence of a municipal ordinance or resolution establishing additional main thoroughfares, used the following language:

“Signs so erected do not have any legal effect whatever, and no one is required to pay any attention to them.”

We are now constrained to assert that this quoted language was unfortunate. It has always been permissible to show all the conditions, facts and circumstances surrounding the location of-a collision of this character, in determining whether the respective parties, in view of these conditions, facts and circumstances, acted as ordinarily prudent persons would act under like conditions, facts and circumstances, and were therefore guilty of negligence or contributory negligence, directly and proximately producing the collision and injury, although a criminal conviction could not be based upon a failure to observe a stop sign or traffic light not erected and maintained by authority of law. The warning effect of the traffic signal erected at the intersection of the roads where the collision occurred which gives rise to the instant action, was in no way lessened or increased by the obtaining or failing to obtain the consent and approval of the highway director to erect and maintain the same. We expressly disapprove that portion of the language used by this court on page 518 in the opinion in the ease of Fred W. Albrecht Grocery Co. v. Overfield, supra, to-wit: “and no one is required to pay any attention to them.”

However, in the instant case we may well assume that the traffic light in question was a legal traffic light, and that the plaintiff was not required to offer proof that the highway director had consented to the erection and maintenance thereof, for the reason that the answer of the defendant specifically admitted “that at said intersection there is a traffic light showing green and red, as signals to control traffic” (Italics ours), and at the trial no objection was made by defendant to evidence of the location and operation of this traffic light. It being thus admitted by defendant that this traffic light was there showing red and green as signals to control traffic, it was the duty of the trial court, in disposing of the motion for a directed verdict, to give to the evidence of plaintiff, and the admissions of defendant, the construction most favorable to plaintiff, in determining the action of the parties with reference to this traffic light, as well as all other facts and circumstances properly admitted on behalf of plaintiff.

A construction of this evidence most favorable to plaintiff would, however, require the court to find that the defendant, at the time and place, was entitled to the right of way over plaintiff, providing defendant was then operating his motor vehicle in a lawful manner. Morris v. Bloomgren, 127 Ohio St., 147, 187 N. E., 2, 89 A. L. R., 831.

If defendant’s vehicle was “not proceeding in a lawful manner in approaching or crossing the intersection, but is proceeding in violation of a law or ordinance, such vehicle loses its preferential status and the relative obligations of the drivers of the converging vehicles are governed by the rules of the common law.” Morris v. Bloomgren, supra.

In determining the question here involved, we must, then, determine first whether the defendant actually had the right of way, or had forfeited it by operating his vehicle in an unlawful manner.

A speed exceeding 45 miles an hour is presumptively unlawful. Giving plaintiff’s evidence the construction most favorable to him, we must conclude that the defendant forfeited his right of way by operating his vehicle at a speed of 50 miles an hour as he approached the intersection, and therefore the drivers of the converging vehicles were governed by the rules of the common law. Further giving to plaintiff’s evidence the construction most favorable to him, it must be concluded that the plaintiff entered the intersection under favor of the green signal of traffic light; that plaintiff entered the intersection before the defendant entered it; that the traffic light was red against defendant when he entered the intersection; and that the plaintiff was driving at a lawful rate of speed, to-wit, 15 miles an hour.

The plaintiff’s evidence being to the effect that the defendant’s car skidded on the dry road a distance of 78 feet before it collided with plaintiff’s vehicle, and that defendant’s car skidded the further distance of 33 feet after striking plaintiff’s automobile, pushing plaintiff’s Ford ahead of it, reasonable minds might conclude that defendant, at the time and place, did not have his automobile under reasonable control and was driving the same at a very high and dangerous rate of speed, without regard for the s'afety of others lawfully using the highway, and without having the same under such control that he could stop within the assured clear distance ahead.

Giving to plaintiff’s evidence the construction required, we believe that reasonable minds could conclude that plaintiff was not guilty of negligence causing or contributing directly and proximately to his injury.

The plaintiff below was not required to anticipate that defendant, in approaching this intersection, would violate the law. Clearly, we hold, this was not a situation where reasonable minds/could come to but one conclusion, and that adverse to the plaintiff. The evidence in this case construed most favorably to plaintiff presents a much stronger case than shown in the ease of Trentman v. Cox, 118 Ohio St., 247, 160 N. E., 715, to which we refer.

“2. It is prejudicial error for a trial court to direct a verdict in favor of the defendant at the conclusion of the plaintiff’s evidence when reasonable minds might conclude that such evidence establishes all the essential elements of the plaintiff’s case.” Leonard, D. B. A. Akron & Buffalo Fast Freight Co., v. Kreider, a Minor, 128 Ohio St., 267, 190 N. E., 634.

It therefore follows that the trial court erred in directing a verdict for the defendant at the conclusion of plaintiff’s evidence, to the prejudice of the plaintiff, and that the judgment of the trial court must "be reversed and this cause remanded to the Common Pleas Court for further proceedings according to law.

Judgment reversed and cause remanded.

Stevens, J., concurs.

Funk, P. J.,

concurring in judgment: I concur in the reversal of the judgment herein, but believe that it is unnecessary to either approve or disapprove certain language used in the case of Fred W. Albrecht Grocery Co. v. Overfield, 32 Ohio App., 512, 168 N. E., 386, in arriving at a decision in the instant case.

It will be noted that the answer not only admits there was a traffic light at the intersection “showing green and red, as signals to control traffic,” but that it contains no allegation that the traffic light was not duly authorized at such intersection, ’ and that it also sets up the defense of sole negligence of plaintiff, and as a part of such defense alleges that plaintiff’s injuries “were caused wholly and solely by the negligence of plaintiff, in that he” did not obey the signals of the traffic light and “drove his automobile into the intersection when the traffic light showed red” against him.

Under such allegations in the answer, and in the absence of any evidence on the subject, I believe it must be assumed that the traffic light was legally erected; at least, defendant surely cannot allege negligence on the part of plaintiff for not obeying the signals of such light, and then claim that defendant was not required to obey such signals, because there was no proof that the light was legally erected, and that plaintiff should fail because he did not adduce evidence to show that it was legally erected.

It is thus apparent that the situation in the instant case is entirely different than was the situation in the Albrecht Grocery Co. case, supra; and that is the reason why I believe it is unnecessary in the instant case to consider the approval or disapproval of any language used in the Albrecht Grocery Co. case.  