OpenJurist › Volume 135 › Ohio St. › Page 415 135 Ohio St. 415
21 N.E.2d 336
14 OhioOp. 316
Smith v. Zone Cabs Ohio Supreme Court · decided 1939-05-24
Good law ✅ — No negative treatment on record how we know
Decided 1939-05-24
How this case has been cited Cited by 14 later decisions — most recently October 2007
2 federal appellate · 12 state decisions
4 0 1939 1940 1950 1960 1970 1980 1990 2000 decided Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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Matthias, J.,
¶1
dissenting. I regret the necessity of expressing a dissent from the judgment of reversal. The Court of Appeals unanimously found that the violation of the ordinance of the city by the plaintiff constituted negligence
per se,
which contributed proximately to cause the injury sustained by plaintiff. That
*424
conclusion is amply supported ‘by the record. The facts emphasized in the majority opinion manifest an indication improperly to impose the rule of comparative negligence, -which, of course, has no application here'.
Weygandt, C. J., and Hart, .1., concur in the foregoing dissenting opinion.
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Case posture Posture CERTIFIED by the Court of Appeals of Trumbull county.
This is an action for damages for personal injuries sustained by appellant, plaintiff below, when struck by appellees' taxicab. The petition charged appellees with negligence in operating their taxicab at an unlawful rate of speed, with failure to keep a proper lookout, and with failure to divert the course of the taxicab or to stop to avoid striking appellant. The answer made certain admissions, but denied that the collision occurred in the manner alleged in the petition, and by way of affirmative defense averred that if appellees be found to have been negligent in one or more respects, the injuries sustained by appellant were nevertheless proximately caused by his own negligence, first, in violating the state laws by walking on the vehicular travelled portion of the highway at a point other than a crosswalk; second, in violating the city ordinance which provided that persons crossing the streets at
points other than a crosswalk must yield the right of way to vehicles; third, in stepping out in front of appellees' vehicle without observing its approach, and without exercising due care for his own safety; and, fourth, in stepping out from behind parked vehicles without exercising due care for his own safety.
The record discloses that at the time and on the date mentioned above, appellant alighted from the right-hand side of an automobile which was parked diagonally, as were other automobiles, on the west side of South Main street, about 115 feet north of Franklin street, or about two-thirds of the way down the block from Market street; that he stepped off the curb and proceeded between the parked cars to the rear of the automobile, to a point in the street where he could observe the flow of traffic; that he stopped, looked to the north and to the south before attempting to cross; that he observed the lights of the taxicab approaching from the north approximately 285 feet away; that, thinking he had time to cross with safety, lie proceeded to do so without again looking to the north, and after he had walked a distance of several feet he was struck by appellees' taxicab and hurled a distance of 80 to 85 feet. The taxicab, although equipped with hydraulic, four-wheel brakes, which were relined that very day, traveled a distance of approximately 115 feet after striking appellant, and skidded on a dry pavement a distance of 50 to 75 feet. The point at which he attempted to cross was between street intersections in an admittedly congested district of the city of Warren.
Appellees introduced into evidence an ordinance adopted by the city of Warren in 1925, which made it unlawful for pedestrians to cross between intersections in the congested district. Appellees also introduced an ordinance of the city of Warren, adopted in 1929, which provided:
Every pedestrian crossing a roadway at any point
other than within a marked or unmarked crosswalk shall yield the right of way to vehicles upon the roadway, provided that this provision shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of pedestrians.
There is testimony in the record to the effect that just before the impact the taxicab was operated at a speed of at least 45 miles per hour.
At the conclusion of appellant's evidence, and again at the conclusion of all the evidence, appellees moved for a directed verdict, which motions were overruled. The jury returned a verdict for appellant for the sum of $7,000. The trial court overruled appellees' motion for a judgment notwithstanding the verdict and their motion for a new trial and rendered judgment upon the verdict. The judgment was reversed by the Court of Appeals of Trumbull county, which court rendered final judgment for defendant for the reason that the undisputed evidence showed plaintiff was guilty of contributory negligence as a matter of law. That court certified the cause to this court on the ground that its judgment was in conflict with that of the Court of Appeals of Muskingum county in the case of Mansperger v. Ehrnfield , 59 Ohio App. 74 , 17 N.E.2d 271 . Source: CourtListener
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