
    Pugh, Appellee, v. Akron-Chicago Transportation Co., Appellant.
    
      (Decided March 2, 1940.)
    
      Messrs. Gorm, Stroup & Spahr and Mr. Walter S. Jackson, for appellee.
    
      Messrs. Gable <& Gable, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Allen county, Ohio, in an action pending therein wherein Alice Pugh was plaintiff and Akron-Chicago Transportation Company was defendant.

The action is one for damages for personal injuries alleged tó have been sustained by plaintiff through the negligence of the defendant while plaintiff was riding as a guest in an automobile driven by her husband, in a collision between the automobile and a tractor-trailer truck operated by the defendant under a certificate issued by the Public Utilities Commission of Ohio, the tractor-trailer at the time of the collision being parked upon a public highway in Allen county, Ohio.

The case was tried to a jury which returned a verdict in favor of the plaintiff in the sum of $4,350, and it is from the judgment entered on this verdict that this appeal is taken.

The facts of the case necessary to a consideration of the appeal as they appear from the record are as follows:

Between two and two-thirty o’clock on Sunday morning, March 6, 1938, J. D. Cable, a driver employed by and operating a tractor-trailer for defendant, Akron-Chicago Transportation Company, the holder of a certificate as a motor freight carrier issued by the Public Utilities Commission of Ohio, was proceeding easterly with such truck on U. S. route No. 30 N, in Allen county, when a puncture occurred in one of the dual tires on the right rear of the tractor. The driver being unaware of the fact that the puncture had occurred continued to drive the truck for some distance in an easterly direction after the occurrence, with the result that a blowout occurred in the other dual tire on the right rear of the tractor, presumably caused by the additional weight this tire was subjected to by reason of the puncture in the other dual tire. When the blowout occurred the driver parked the truck at a point 1.8 miles west of Beaverdam, Allen county, on route 30 N which is the main east and west thoroughfare in this part of the county.

At the point where the driver parked the truck the highway is paved with concrete to a width of eighteen or twenty-two feet with an almost level berm approximately eleven feet in width on the south side of the pavement. There was a farm driveway some two or three hundred feet west on the north side, a similar driveway thirteen hundred and fifty feet east on the south side, and a paved crossroad four hundred and ninety-five feet east of the place where the truck was parked;

The truck was parked on the pavement with the left wheels six inches south of the center line.

There were two sizes of tires on the equipment. The tires on the tractor were 7.50’s and the tires on the four dual wheels of the trailer were 9.75’s. But one spar© tire (disputed) for each of these sizes was being carried.

It being necessary to operate the equipment with dual tires, the driver placed flares (disputed) and caught a ride back to the Dutch Mill ábout seven miles east of Van Wert and twenty-five miles west of the place where the truck was parked, for the purpose of securing a new tire. He left the truck in charge of a helper of one day’s employment who went to sleep in the cab. The driver arrived at the Dutch Mill at about four o’clock a. m. and remained there for seven and a half hours, the tractor-trailer standing on the highway a total of approximately nine hours before the collision hereinafter mentioned, and eight hours thereafter.

It being Sunday it was difficult to obtain a tire of the 7.50 type and the driver endeavored to locate the size tire he needed, from other tractors and trailers stopping at the Dutch Mill, and by telephoning to different localities, but was unable to obtain a tire of the size that he required, up to about ten-thirty in the morning, when he received a telephone call from the Lewis farm adjacent to the highway at the place the truck was parked to the effect that there had been an accident. He proceeded at once to the point where the tractor-trailer was parked, and, according to his testimony, as he approached the scene of the accident from the west he observed a burning flare which he had placed west of the truck, and pushed it off the pavement and onto the berm.

There was some controversy concerning the fact that any flags or flares had been placed as required by the rules and regulations of the Public Utilities Commission, and also some question as to whether the driver could have proceeded on his “flats” to the driveways and road mentioned, and there parked his equipment. There is also a dispute as to whether the berm of the road at the place he parked his equipment was hard enough to be used for the parking of the equipment.

The plaintiff Alice Pugh and her husband Max Pugh and plaintiff’s mother Mrs. Cleland that morning had decided to go from Van Wert to Ada, Ohio, to attend a birthday dinner for Max Pugh and another relative. They proceeded easterly along U. S. route 30 N from Van Wert and when at a point about a half mile from the place where the tractor-trailer was parked, Max Pugh, the driver, noticed the tractor-trailer and as he came to within about a quarter of a mile of this point, near the Lewis farm, he could see the tractor-trailer was parked on the highway. It was broad daylight, between eleven and eleven-thirty a. m., and one witness testified it was a bright sunny day.

As the Pugh car came closer to the parked equipment another car passed the Pugh car also going east and traveling at a rate of about sixty miles an hour. It proceeded at the same speed in passing the tractor-trailer and was out of sight when Max Pugh driving his Chevrolet sedan with his wife in the front seat and Mrs. Cleland in the back seat slowed down in front of the Lewis farm and stopped forty feet behind the trailer-tractor to allow traffic going in a westerly direction to pass the tractor-trailer, before attempting to go around the place where the equipment was parked.

Pugh, after he slowed down and stopped at a point forty feet back of the trailer, threw out the clutch of his car, then threw the car out of gear, let the clutch back in, took his foot off the brake, then reached up to his mouth and took a pipe he was smoking out of his mouth and laid it down on the seat between himself and his wife, and then pushed in the clutch preparatory to starting up after the traffic passed to the west.

A very short period after Pugh had stopped, estimated by one witness as ten seconds, and while the Pugh car was waiting as above mentioned, one Hugh Ragland driving in an easterly direction presumably at a high rate of speed failed to slow down and stop his ear as Max Pugh had done, but instead forcibly and violently crashed his car into the rear end of the Pugh car which impact from the rear forced the Pugh car (Pugh not having his foot on the brake) east and into the back end of the trailer, and as a result of the excessive force of this collision the plaintiff sustained a very badly fractured and dislocated left ankle and a very, badly sprained right ankle and some cuts and bruises by reason of her head being thrown into the windshield when the Pugh ear hit the trailer.

By reason of these injuries the plaintiff was confined to the hospital for eighteen days and on account of the dislocation of the fractured ankle it was necessary for her to undergo an open operation to set the dislocation, about eight days after the accident, and from that time on for a period of 73 days the ankle was in a cast. Due to an exostosis flowing from the fractured part during the time it was knitting, a bony substance was formed which has caused a permanent disability in- the flexion of the foot. Plaintiff was compelled to have a housemaid for 12 months at a cost of four dollars per week, plus board and room; lost nine hundred dollars in earnings up to the time she returned to part time work, and expended more than $387.50 for medical, surgical and hospital services. She was on crutches for five months and on a cane four months.

The collision happened in March 1938 and in the fall of that year the plaintiff obtained employment at the Marsh Foundation at Van Wert, Ohio, teaching dramatics and other prescribed courses and also teaching music at her home, and although handicapped by reason of the condition of her injured ankle was able to earn more money than previous to her injury.

The defendant assigns errors in the following particulars which will be considered in the order mentioned :

1. The judgment of the Court of Common Pleas is contrary to law and against the weight of the evidence.

2. There-was error in overruling the motion of defendant for a directed verdict in its favor after the plaintiff rested her case and also at the close of all the evidence.

3. It was error for the trial court to refuse to grant judgment notwithstanding the verdict on motion of the defendant.

4. There was prejudicial error in the admission of testimony offered by plaintiff.

5. There was prejudicial error in the exclusion of evidence offered by defendant.

6. There was error in submitting to the jury plaintiff’s request to charge No. 2.

7. There was error in refusing to charge the jury defendant’s requests to charge before argument Nos. 1, 2 and 8.

8. There was error prejudicial to defendant in the charge of the court.

9. The verdict is excessive, due to passion and prejudice.

The assignments of error that the judgment is contrary to law and is against the weight of the evidence, that there was error in the overruling of defendant’s motion for a directed verdict, and that there was error in refusing to grant the motion of defendant for judgment notwithstanding the verdict, are based solely on the contention that in the event the. evidence tends to prove negligence on defendant’s part, such negligence was not the proximate cause of the collision between the tractor-trailer operated by it and the automobile in which the plaintiff was riding or the injuries resulting therefrom to plaintiff, but was either no cause or a cause so remote to any negligence that could be attributed to the defendant that the plaintiff’s injuries were not a result thereof; and that if there was any negligence of the defendant the evidence clearly shows that there was a proximate definite intervening cause which the defendant could not have reasonably anticipated under any circumstances, to wit: That Hugh Ragland would be so operating his car in a negligent manner along the highway as to run into and collide with a parked car on the highway after this car had been parked in such position more than ten seconds and drive such parked car forward a distance of forty feet, from which rear-end collision the damages' and injuries to the plaintiff were sustained.

The rule applicable to defendant’s contention has been stated substantially as follows:

To relieve a person from the consequences of his negligence it.is not enough that the negligent act or omission of another was nearest in the order of events to the injury, nor that without it the injury would not have occurred; to have this effect it must have been the efficient, independent, and self-producing cause, disconnected from the negligence of the first person. Pennsylvania Rd. Co. v. Snyder, 55 Ohio St., 342, 359, 45 N. E., 559, 60 Am. St. Rep., 700. The causal connection is not broken “if the intervening event is one which might, in the natural and ordinary course of things, be anticipated as not entirely improbable, and the defendant’s negligence is an essential link in the chain of causation.” Shearman and Redfield on Negligence (6 Ed.), 66, Section 32.

A more modern and accurate statement of the rule is set forth in 2 Restatement of the Law of Torts, 1196, Section 447, as follows:

“The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about,- if

“ (a) the actor at the time of his negligent conduct should have realized that a third person might so act, or

“(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or

“(c) the intervening act is a normal response to a situátion created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.”

Negligent acts of drivers of motor vehicles, of the same character as the negligent act of Hugh Ragland, in causing the motor vehicles driven by them to collide with other motor vehicles stopped ahead of them on the highway because of the obstruction of the highway by cars stopped ahead, forcing ahead the motor vehicles with which they have collided so that they in turn collide with the motor vehicles stopped ahead of them, are as a matter of common knowledge of common occurrence.

It therefore cannot be held as a matter of law that the negligent act of the driver Ragland was one which might not in the natural course of things have been anticipated as not entirely improbable; nor that the driver of defendant’s truck in stopping as he stopped should not have realized that a third'person might so act; nor that a reasonable man knowing the situation existing when the act of the third person was done would regard it as highly extraordinary that the third person had so acted; nor that the intervening act was not a normal response to á situation created by the actor’s conduct and the manner in which it was done was extraordinarily negligent.

For the reasons mentioned the question as to whether Ragland’s negligence was the proximate cause of the collision between the automobile in which the plaintiff was riding, and the trailer-tractor operated by the defendant, was a question for the jury and not for the court.

There is competent, credible and substantial evidence tending to prove negligence on the part of the defendant as charged in the petition, of such a character as in law to constitute a substantial factor in causing plaintiff’s injuries and also to constitute an essential link in the chain of causation. Whether such negligence existed and whether it constituted a proximate 'cause of plaintiff’s injuries were questions of fact for determination of the jury. The question of the contributory negligence of plaintiff was also a question for the jury.

The judgment therefore is not contrary to law and the court did not err in overruling defendant’s motion for directed verdict and in overruling defendant’s motion for judgment notwithstanding the verdict; and the judgment is not against the weight of the evidence.

Under the assignment of prejudicial error in the admission of testimony offered by plaintiff, the defendant claims error in the admission of the testimony of Max Pugh one of the plaintiff’s witnesses, relating to a conversation had by him with the helper on defendant’s truck, immediately following the collision, and a conversation between the helper and a state patrolman occurring some time after the collision.

One of the defendant’s objections to the testimony of the conversation between Max Pugh and the helper, is that there is no evidence tending to prove that either the driver or the helper were employees or agents of the defendant. This objection is without basis as there is in evidence certified photostatie copies of the Public Utilities Commission’s certificate issued to defendant as a motor transportation company under the laws of Ohio, restricted to interstate commerce, bearing the-same numbers carried by the truck at the time of the collision. There is also the testimony of one J. D. Cable that he was employed by defendant as the driver of the truck at and preceding the,time of the collision and that the helper who accompanied him and whom he left in charge of the truck after the collision, was also so employed.

The fact of agency may he established on trial by the testimony of the agent himself. 1 Ohio Jurisprudence, 638, Section 13.

The evidence mentioned therefore tended to prove the employment of both the driver and the helper.

Defendant’s other objections to the testimony as to the conversations mentioned, are that admissions of the helper, if an employee or agent of the defendant, are not binding on the defendant, and that the admission of such testimony violated the hearsay rule. These objections are well taken if anything appears in the testimony relating to the conversations, prejudicial to defendant.

An examination of the testimony as to the conversation between Pugh and the helper discloses that it relates to facts which are otherwise in evidence and not in dispute, and consequently the admission of this testimony was in no way prejudicial to defendant and its admission did not constitute error warranting reversal of the judgment.

An examination of the testimony as to the conversation between the state patrolman and the helper discloses that it occurred some time after the collision and relates to the patrolman directing the helper to get warnings out, to get flags, flares, and warnings out right away.

From other uncontroverted evidence in the record it appears that no flags had been put out until after the collision. There is a direct conflict in the evidence as to whether lighted flares were in position at and preceding the collision. There is no evidence that warnings of any other type were put out at and preceding the collisioii.

The conversation between the patrolman and the helper occurred some time after the collision and must be considered in connection with conditions as they existed at the time the conversation occurred.

The claim on the part of plaintiff, of negligence on the part of the defendant in failing, to put out flares, flags and other warnings, related to the time preceding the collision. The direction given by the patrolman, above mentioned, was given subsequent to the collision and consequently did not reflect on conditions as they existed at and preceding the collision.

Furthermore as shown by the undisputed evidence in the case, the driver of the automobile in which plaintiff was riding, at and preceding the collision in which plaintiff sustained her injuries, saw the trailer-truck of defendant when he was at a distance of half a mile from it, and when he came within about a quarter of a mile of it could see that it was parked on the highway, and thereafter stopped his automobile forty feet behind it. Upon this state of facts the neglect, if any, of the defendant in not putting out flares did not affect the conduct of the plaintiff or of the driver of the automobile in which plaintiff was riding and therefore did not in law constitute a proximate cause of plaintiff’s injuries. Whether such neglect, if any, affected the conduct of the driver of the automobile, which collided with the automobile in which plaintiff was riding, is not material insofar as the liability of the defendant is concerned, as irrespective of whether his conduct was affected by such neglect the defendant was liable to plaintiff by reason of its negligence in the other respects charged in the petition and supported by the evidence.

The testimony as to the conversation therefore did not bring into evidence any fact upon which the liability of the defendant is dependent, and considering the record as a whole the admission of the testimony did not constitute error prejudicial to the defendant, warranting the reversal of the judgment.

Under the assignment of prejudicial error in the exclusion of evidence offered by defendant, the defendant cites objections sustained to certain questions in the cross-examination of the witness Max Pugh.

An examination of these questions discloses that each and all of the questions called for answers of conclusions of ultimate facts which it was the sole function of the jury to determine, and consequently the court did not err in sustaining the objections to the questions, and excluding the evidence.

The sixth error assigned is in submitting to the jury, plaintiff’s special request to charge No. 2. The request mentioned is as follows:

“Ladies and gentlemen of the jury: I charge you, as a matter of law, that it is not essential to the liability of the defendant that its.negligence should be the sole cause of the injuries to the plaintiff, but if the injuries of the plaintiff were produced by the negligence of the defendant and one or more other parties, any one of the parties contributing a necessary condition to the result which produced the injuries can be held responsible at the election of the party injured and the party which the plaintiff elects to hold responsible cannot claim exoneration on account of the fault of another.”

This request to charge is taken almost verbatim from 29 Ohio Jurisprudence, 491, Section 73, and is based on a sentence in the opinion in the case of Pennsylvania Rd. Co. v. Snyder, supra, which is almost identical in phraseology.

The objection to this request to charge is that it is not conditioned on the negligence of any of the parties named in the charge being a proximate cause of the accident.

As used in the charge, the phrase “but if the injuries of the plaintiff were produced by the negligence of the defendant and one or more other parties, any one of the parties contributing a necessary condition to the result which produced the injuries can be held responsible at the election of the party injured, ’ ’ means identically the same as the more modern phrase “but if the injuries of the plaintiff were proximately caused by the negligence of the defendant and one or more other parties, any one of the parties contributing a negligent proximate causal factor to the result which produced the injuries can be held responsible at the election of the party injured. ’ ’

The request to charge was therefore correct and the court did not err in submitting it.

The seventh assignment of error relates to the action of the trial court in refusing to charge defendant’s requests to charge before argument Nos. 1, 3 and 8.

Defendant’s request to charge, No. 1, is as follows:

“Members of the jury: I charge you that the General Code of Ohio, Section 6310-27, is as follows: ‘No vehicle shall stop on any road or highway, except with front and rear right wheels within one foot of the right hand side of the improved portion of the road, nor in any such way as to obstruct a free passage of the road; provided that nothing in this section shall be held to apply whenever a driver of a vehicle is compelled or permitted to stop by reason of other lawful regulations, or emergency,’ and if you find that the driver of the defendant’s tractor and trailer stopped the vehicle on the pavement with its right wheels within one foot of the right and south edge of the pavement, then I charge you that such stopping and parking is lawful, and defendant is therefore not chargeable with any negligence by reason of such parking.”

In order to determine the correctness of this charge it is necessary to consider the proper construction to be placed on the provisions of the section mentioned.

Broken down, the section contains two separate and independent prohibitions each of which constitutes a specific requirement of law the violation of which constitutes neglegence per se, to wit: First: No vehicle shall stop on any road or highway except with the front and rear wheels within one foot of the right hand side of the improved portion of the road. Second: No vehicle shall stop in any such way as to obstruct a free passage of the road.. This section further contains a proviso excluding motor vehicles from the operation of these prohibitions under circumstances prescribed therein, the proviso being as follows: “Provided that nothing in this section shall be held to apply whenever a driver of a vehicle is compelled or permitted to stop by reason of other lawful regulations, or emergency.”

The first prohibition is so clear and explicit as not to require definition or construction.

Free passage of the road, in the sense it is used in the second prohibition, means free passage of vehicles in the ordinary course of traffic on the improved portion of the road, that is, the unconfined and unrestrained passage of vehicles moving in one direction past vehicles moving in the same or in an opposite direction on the improved portion of the road, and this prohibition contemplates a sufficient width of the improved portion of the road being left unobstructed to permit the free passage of motor vehicles in separate adjacent lanes of traffic.

Consequently where there is not sufficient room on the improved portion of a highway to permit the stopping of vehicles in the manner provided in the first general prohibition, and in such a manner as not to obstruct the free passage of the road, as above defined, as prescribed in the second prohibition, vehicles, by the provision of the section, are prohibited from stopping except under the circumstances prescribed in the proviso.

The “other lawful regulations” referred to in the proviso by reason of which a motor vehicle is compelled or permitted to stop are the regulations adopted pursuant to law by the Public Utilities Commission of Ohio relating to public and private motor vehicle carriers.

The word “emergency” as used in the proviso is not defined so it must be considered as used in its ordinary sense, as an unforeseen combination of circumstances which calls for immediate action, also, less properly, an exigency.

An emergency is transitory in character and when the emergency ceases the stopping of a vehicle upon the highway comes within the prohibitions of the section and the proviso ceases to be applicable, and when under all the facts and circumstances of the case a reasonable time has elapsed to overcome the emergency compelling or permitting the stopping, the emergency will be considered in law as having ceased and the prohibitions, not the proviso, of the ^section are then applicable.

The undisputed evidence of the instant case shows that the width of the improved highway was such that the defendant’s tractor-trailer could not be parked on it except in violation of the second prohibition mentioned, and consequently any right the defendant had to stop it on the highway in the manner in which it was stopped, is entirely dependent upon whether such stopping comes within the proviso of the section.

That part of the request to charge following the quoted section of the General Code is therefore not correct because not predicated on the jury finding that the driver of defendant’s tractor-trailer was compelled or permitted to stop by reason of other lawful regulations or emergency, and the court did not err in refusing to give it.

With reference to the refusal of the trial court to charge numbers 1, 2 and 8 of defendant’s special requests to charge before argument, the bill of exceptions shows that the defendant by -its counsel “presented to the court, in writing, the following special requests and asked that the same be given to the jury, before argument, in its behalf.” Following this recital appear the eight special, instructions requested, including number one above mentioned, and numbers two and eight which were refused. No other or different request on behalf of the defendant to submit special instructions appears in the record.

Where the record does not disclose whether a request for certain instructions to be given before argument was that such instructions be given as a whole or separate, error cannot be predicated on the refusal to give them if, taken as a whole, they are improper in form and some of them are improper in substance. Greene v. Wilson Sand & Supply Co., 6 Ohio Law Abs., 294.

“There is a presumption that several special requests for instructions, when not offered as several and independent propositions of law, are offered as a series, and if one of them fails to state a correct proposition of law applicable to the facts of the case, it is not error for the court to refuse all of them.” Kalamazoo Stove Co. v. May, 16 Ohio Law Abs., 498. See, also, 2 Ohio Jurisprudence, 1008, Section 797.

' As the above quoted No. 1 request to charge was incorrect, the court, irrespective of whether the other instructions were correct or not, did not, under the rules above mentioned, err in not submitting the other instructions, the refusal to submit which is complained of, as such requests were not offered as several and independent propositions of law.

The next assignment is error prejudicial to the defendant in the charge of the court.

Under this assignment the defendant claims error in the court charging the provisions of Sections 6310-22 and 6310-27, General Code, the charge on the provisions of Section 6310-27 following the charge on the provisions of Section 6310-22, General Code.

Section 6310-22, General Code, is applicable to the conduct of the driver of the automobile in which the plaintiff was riding as a guest, and also applicable to the contributory negligence of the plaintiff, if any.

The provisions of Section 6310-27, General Code, are applicable to the conduct of the defendant in stopping his car upon the highway.

In other parts of the charge the application of these sections is accurately stated, and taking the charge as a whole the instruction complained of is not erroneous.

The defendant further contends that the court erred in charging that violations of both of the sections mentioned are negligence per se, when, as the defendant contends, the violation of Section 6310-27, General Code, is not negligence per se under the conditions as they exist in the record in the case.

As we have already stated in this opinion, Section 6310-27, General Code, contains two specific requirements the violation of which constitutes negligence per se, and a proviso excluding vehicles from the operation of the statute under circumstances therein prescribed.

It was for the jury to determine whether the proviso • was applicable to the circumstances of this case. If applicable, the defendant had not violated the provisions. On the other hand, if the proviso was inapplicable the violation of the provisions of the section constituted negligence per se as charged by the court, and the court’s charge in this respect was not erroneous.

The defendant further contends that the trial court placed an unwarranted burden on the defendant in giving most particular emphasis to the Public Utilities Commission regulations and upon a failure of the defendant to comply therewith.

We have examined this portion of the charge and find it is accurate, and no undue emphasis is given in the particulars complained of.

The ninth assignment is that the verdict is excessive, due to passion and prejudice.

The evidence as to the extent of plaintiff’s injuries fully supports the amount of the verdict and it does not appear that the same is excessive.

For the reasons mentioned, we find no error in any of the particulars assigned and argued in the brief of the defendant, and the judgment will therefore be affirmed at its costs.

The conclusion which we have reached with reference to the construction to be placed on the prohibitory provisions of this section is in direct conflict with a judgment pronounced upon the same question by the Court of Appeals of the Ninth Appellate District, in the case of Hileman v. Portage Lakes Transportation Co., decided July 25, 1938, reported in 30 Ohio Law Abs., 207, issue of February 17, 1940, and for this reason this case will be certified to the Supreme Court of Ohio for review and final determination.

Judgment affirmed.

- Crow, P. J., and Klinger, J., concur.  