
    Wiley v. The Green Cab Co. et al.
    (Decided December 7, 1931.)
    
      Mr. Alexander II. Martin, for plaintiff in error.
    
      Messrs. McConnell, Lind, BlacJcmore, Cory & Griffith, for defendants in error.
   Levine, P. J.

Error proceedings are prosecuted to this court from a judgment rendered in the common pleas court in favor of the defendants.

It appears that the plaintiff filed a petition, making the Green Cab Company, an Ohio corporation, and one Herman Krantz, parties defendant, and seeking a recovery on the ground that Herman Krantz, the driver of a taxicab, was negligent in its operation, and that the injuries resulting to the plaintiff were proximately caused by said negligence.

The Green Cab Company is engaged in the taxicab business in Cleveland, Ohio, and operates under some arrangement with the drivers a fleet of taxicabs in and upon the streets of Cleveland. Herman Krantz drove the particular taxicab in question.

It is unnecessary to enter into a detailed discussion of the arrangement made by and between the Green Cab Company and the drivers and operators of the various taxicabs. The most that could be claimed for the detailed arrangement is that the driver of the taxicab and the Green Cab Company are engaged in a joint enterprise.

The plaintiff became a passenger for hire and engaged the taxicab to carry her from Bast Fourteenth street to East Fifty-Fifth street and Central avenue, on July 14,1929, at about 11 p. m. Herman Krantz, the driver and operator of the taxicab, drove easterly on Central avenue.

There is evidence in the record that he operated at a speed of from forty to fifty miles an hour. When he reached East Twenty-Second street he disregarded the traffic light. The plaintiff then requested him to drive more slowly and carefully. Instead of giving heed to the request of his passenger, he continued to drive at great speed across East Thirtieth street while the traffic light was against him, and then and there ran into a Peerless roadster, which was being driven westerly at about fifty feet easterly from the intersection of Central avenue and East Thirtieth street.

The answer of the defendants denied any negligence in the operation of the taxicab by Herman Krantz, and asserted that the collision was due to the manner in which the Peerless roadster was operated by one Barnett, who was then driving and operating the same.

Before the case was submitted to the jury, the plaintiff made an election to proceed against the driver, Herman Krantz. The court accordingly dismissed the Gfreen Cab Company from the case, and the matter proceedéd as a trial between Beatrice Wiley and Herman Krantz only. The jury returned a verdict in favor of the defendant Herman Krantz.

Various assignments of error are set forth which we'do not consider of importance. The one assignment of error which we deem of utmost importance in this case is an exception by plaintiff to the charge of the court eliminating from the case the allegation that the injuries complained of were caused by the wanton, wilful, and criminal conduct of the defendant Herman Krantz.

The court instructed the jury to disregard the allegations in the petition which relate to the wilful, wanton and intentional conduct of Herman Krantz, and to consider the case as a case of ordinary negligence only. The trial court apparently was of the opinion that there was no evidence tending to support the allegation of wanton, wilful and intentional negligence on the part of Herman Krantz.

It is not necessary to confine our attention to the mere fact that it was contended by the plaintiff that Herman Krantz violated the law in disregarding traffic lights, as there is evidence in the record that when the defendant Herman Krantz disregarded the traffic light at East Twenty-Second and Central he was requested by the plaintiff, his passenger, to drive more slowly and carefully, that he gave no heed to the request and continued at a rapid rate of speed, and that, despite the request of his passenger, he sped across East Thirtieth street in disregard of the traffic light, which was against him.

The court instructed the jury to disregard the allegation of the plaintiff’s petition as to wanton and wilful negligence on the part of Herman Krantz. We think the court erred in this, as it was within the province of the jury to consider this element of the ease as an issue arising from the pleadings and supported by some evidence.

The distinction between an “intentional injury” and “wilful and wanton negligence” is found to be as follows: An “intentional injury” usually implies a purpose to injure a particular person or persons; “wanton and wilful negligence” is a reckless disregard of the safety of others without any particular intention to do injury to any one.

When a passenger engages a taxicab for hire, the driver is within reasonable limits subject to the instructions of such passenger. It has accordingly been held that, when a passenger of a taxicab discovers that the driver is operating in a careless manner, a duty devolves upon the passenger to remonstrate and to demand more care in the operation of the taxicab.

When the plaintiff in this case demanded of Herman Krantz that he drive more slowly and carefully, she did so in the exercise of a duty imposed upon her by law. It likewise became his duty to give heed to the instruction of the passenger who hired his taxicab. If he fails to give heed to such reasonable request, and instead continues at a rapid rate of speed, and also continues to disregard the traffic regulations imposed by law, he is unquestionably guilty of negligence. When the trial court eliminated the allegation of wanton and wilful negligence from this case, he in effect said to the jury that the request of the plaintiff of the driver to drive more slowly and carefully was not material to this case, and that they might disregard this evidence even if it were true. This, in our opinion, affected the substantial rights of the plaintiff, because if the court had permitted the jury to consider this element of the case, the jury would have been justified in finding that, were it not for the heedlessness on the part of the driver of the reasonable instruction given to him by his passenger to drive more carefully and slowly, the collision between the Green Cab Company car, which was going east, and the Peerless car, which was going west, would not have occurred.

Both sides quote from the opinion of the Supreme Court in Payne, Director General, v. Vance, 103 Ohio St., 59, 133 N. E., 85, 88. We shall quote from this opinion, at page 69, language pertinent to our discussion, as follows:

“It is of course not necessary that the defendant should have knowledge of the peril of any particular person, or that he should have intended to do injury to some particular person, but, on the other hand, any general knowledge or information that other persons are placed in a position of peril by his reckless and heedless conduct would amount to a legal wilful tort. This doctrine is based upon the well-known principle that a person is presumed to intend the natural and logical consequences of his acts. An illustration of this statement would be that of a person who would ride a wild and highly excited horse into a crowded street on a public festival day.”

The judgment of the common pleas court will be reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Weygandt and Vickery, JJ., concur.  