Community Trac. Co. v. Reno , 30 Ohio App. 143 ( 1928 )

The Community Traction Company was defendant and Pearl Reno was plaintiff in an action commenced by the latter in the court of common pleas.

On February 26, 1927, the plaintiff, a passenger on a street car of the defendant known as a Bancroft Belt car proceeding easterly on Adams street, alighted therefrom at the corner of Adams and Superior streets, which are intersecting streets. The route of the street car was easterly on Adams street and then southerly on Superior street. After alighting from the street car, plaintiff went to the Superior street side of the southwesterly corner of Adams and Superior streets and waited at the curb until the traffic officer stationed at this street intersection gave the signal for pedestrians and traffic on Adams street to proceed easterly across Superior street. This signal also permitted the street car to proceed on its way from Adams street to and upon Superior street. The signal to proceed having been given, the plaintiff walking, and the street car operated by the motorman thereon, proceeded — the one to cross Superior street, the other to turn from Adams onto Superior street. While so crossing Superior street, plaintiff was struck by the fender of the car and seriously injured. She sustained an oblique fracture of the right thigh bone about six or seven inches long, and as a consequence thereof was confined in bed at St. Vincent's Hospital for about 23 weeks. It was necessary to place casts on both of her legs, one entirely covering the right leg and one to below the knee on the other leg. At the time of the trial the right leg was about three-fourths of an inch shorter than the left. She appears to have sustained some bruises, and testified, also, that her back was injured and still hurts her, and that she suffers intense pain. She further testified that she has not been able to walk without crutches, and that at the time of the trial, November 8, 1927, she still suffered pain from her injuries, and has many sleepless nights by reason thereof.

Judgment was entered by the trial court upon a verdict in favor of the plaintiff for $5,000, and defendant seeks by these proceedings in error to reverse this judgment.

The evidence is in conflict as to where the street car was when plaintiff stepped upon the track upon which the car was proceeding, the motorman and at least one other witness testifying that plaintiff stepped directly in front of the car as it rounded the curve. Another witness, a passenger in the street car, testified that when she first saw plaintiff the latter "was just right in front of the car * * * between the tracks." Another of defendant's witnesses testified that when she saw plaintiff "they were just picking her up" to the left of the front of the car. This would be on the side of Superior street toward the east, in which direction plaintiff was desiring to proceed. Plaintiff testified that she looked both ways on Superior street before starting to cross, that the way was clear, that the street car from which she had alighted was "standing still" when she started across Superior street, and that she had but one step to go to be over the last rail of the track when the car hit her. The traffic officer testified that other people were crossing Superior street ahead of the street car at the time Mrs. Reno was crossing, that some had passed over, and that others were proceeding easterly across Superior street, "but the car stopped them by going that way." He stated also that plaintiff had crossed the track and was about a foot and a half therefrom when hit by the left front fender of the car as it swung easterly from the track about two feet in making the turn. The specific acts of negligence alleged in the amended petition are that: "Said defendant carelessly and negligently operated said street car from said southerly track on Adams street upon and over said curved portion of track onto said westerly track in said Superior street without having said car under control and without keeping a lookout ahead and without sounding a gong or signal of the approach of said car to plaintiff at said time, and at a high and dangerous rate of speed, to wit: About fifteen (15) miles per hour and without slackening the speed of said car or bringing said car to a stop onto and against plaintiff bringing the left front part of said car against plaintiff inflicting the injuries hereinafter described."

There is no evidence in the record that the speed of the car in rounding the curve from Adams to Superior street was more than five or six miles an hour, but even that speed, under the facts and circumstances in evidence, might have been found by the jury to have been a failure to exercise ordinary care, and it may be that the jury found that the circumstances were such as to have required the motorman, in the exercise of ordinary care, to have stopped the car and waited until plaintiff had crossed the track upon which it was being operated. Neither the operators of street cars nor of automobiles, in turning from one street to another, have any preferential right over pedestrians who, in conformity to a proper signal authorizing and directing them so to do, are crossing the street; and they have not the right, under any and all circumstances, to proceed around the corner from one street to another without stopping, anticipating, or expecting that pedestrians will run, or jump backwards or forwards, as the case may be, to avoid injury. Ordinary care may require that the street car or automobile be stopped, and that it wait for the pedestrian, or that the pedestrian stop and wait for the street car or other vehicle to pass. What either should do in the exercise of ordinary care depends entirely upon the facts and circumstances of the particular case. In the instant case there is evidence that the plaintiff was across the track and was hit by the fender of the car as it swung around the curve onto Superior street, and if the jury believed this testimony, then it might very well have found that the motorman did not exercise the care which the law imposes, and that his negligence was the proximate cause of the injury sustained by the plaintiff. The law of Ohio provides that: "Pedestrians shall not step into or upon a public road or highway without looking in both directions to see what is approaching."

If it be claimed that this statutory provision applies to the facts and circumstances of the instant case, or that the exercise of ordinary care would so require, plaintiff testified that she did so look before proceeding to cross Superior street, that the street car was "standing still," and that the way was clear. Having done this, as the jury may have found she did, and the traffic signal permitting her lawfully to proceed, in our judgment she was not required at every step to be looking in every direction to see whether or not she was in danger. It was for the jury to say whether or not the defendant was negligent, and whether or not, if negligent, such negligence was the proximate cause of plaintiff's injuries, and also it was for the jury to say whether or not the plaintiff was guilty of negligence proximately contributing to her injuries. We have no hesitancy in concluding that the court did not err in refusing to direct a verdict for the defendant, and that the verdict and judgment are not manifestly against the weight of the evidence.

We are likewise of the opinion that the trial judge did not err to the prejudice of defendant in refusing to give to the jury before argument the written instructions requested by defendant.

At the conclusion of plaintiff's case it was stipulated between counsel for the respective parties that "the fair and reasonable value of the services of the doctors in this case is $700.00 and that the fair and reasonable charge for services at the hospital is $440.00." The plaintiff is, and at the time of the trial was, a married woman, and no evidence was offered as to the medical and hospital expenses other than this stipulation. On the question as to what damages were recoverable by plaintiff, if she was entitled to a verdict in her favor, the court charged the jury: "You may take into consideration the amount of plaintiff's doctor bill and hospital bill which may have been charged against her, whether paid or not — if the charge was made against her you may take that into consideration, if you should find the plaintiff was entitled to recover damages." The defendant claims that to so charge the jury was reversible error, and that in any event there should be a remittitur in the sum of $1,140 from the judgment, the amount of the medical and hospital expenses referred to in the stipulation, for the reason that there is no evidence in the record that plaintiff was chargeable with or obligated for any part of the expenses incurred in her treatment and care. The plaintiff being a married woman, it is claimed that, in the absence of evidence to the contrary, her husband is primarily obligated for their payment. In view of the character of the stipulation, we think it plain that the trial judge in his charge to the jury used the word "chargeable" in the sense of obligation or liability, and that the jury so understood. The verdict of the jury was a general verdict, and it is not possible to say upon what basis the amount thereof was determined, but it is to be presumed that the jury followed the instructions of the court. In effect the court advised the jury that only such medical and hospital bills as were charged against plaintiff might be considered in any verdict found for the plaintiff. Since there was no evidence offered upon this subject, we must assume that the jury disregarded and did not include in the verdict any sum for such expenses. Plaintiff in error made no objection, other than a general exception, to the charge of the court, nor was there any request to make more specific any part thereof. The amount of the verdict is not excessive for the injuries sustained, and we are of the opinion, therefore, that the court did not err to the prejudice of plaintiff in error in the instructions so given to the jury.

Finding no errors in the record prejudicial to the plaintiff in error, the judgment is affirmed.

Judgment affirmed.

RICHARDS and WILLIAMS, JJ., concur.