[This opinion has been published in Ohio Official Reports at
76 Ohio St.3d 389.]
PANGLE, APPELLEE, v. JOYCE ET AL., APPELLANTS.
[Cite as Pangle v. Joyce, 1996-Ohio-381.]
Civil procedure—In ordering new trial on ground that judgment was contrary to
law, trial court impermissibly conducts a weighing of the evidence and an
assessment of the credibility of witnesses, when.
(No. 95-1675—Submitted June 5, 1996—Decided August 21, 1996.)
APPEAL from the Court of Appeals for Van Wert County, No. 15-94-5.
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{¶ 1} This cause involves the jury determination of fault in a serious traffic
accident. A tractor-trailer driven by Doyle Joyce collided with a Jeep Cherokee
driven by Timothy Beyer at the intersection of U.S. Route 127 and State Route 81
in Van Wert County. As a result of the accident, Beyer suffers permanent head
injuries. Beyer’s mother, Virginia Pangle, filed suit against Joyce and Joyce’s
employer, Roundys Lake End Sales, as Beyer’s guardian, claiming that Joyce’s
negligence had caused the accident. The defendants denied Joyce’s negligence and
claimed that the injury had been caused by Beyer’s own negligence.
{¶ 2} At trial, the plaintiff and defendants produced differing accounts of
the events that immediately preceded the collision. According to the plaintiff, both
Beyer and Joyce were traveling in the southbound lane of U.S. Route 127 before
arriving at the intersection of Routes 127 and 81. Beyer’s passengers were directing
him to the location of a stranded vehicle. As Beyer approached Route 81, he
signaled a right-hand turn, but was informed by one of his passengers that he should
turn left and proceed east on Route 81. Plaintiff’s passengers testified that, without
ever completely leaving the southbound lane as marked (i.e., passing over the west
edge line of the lane), Beyer signaled a left-hand turn and began that turn. Before
reaching the eastbound lane of Route 81, Beyer’s Jeep was struck by Joyce’s truck,
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which was now in the northbound lane of Route 127, proceeding in a southerly
direction. Plaintiff’s passengers opined that Joyce had entered the northbound lane
in an attempt to pass Beyer. Plaintiff’s theory was that Joyce’s per se negligence
in failing to maintain an assured clear distance (R.C. 4511.21) or driving on the left
side of the roadway within one hundred feet of an intersection (R.C. 4511.30) had
caused the accident.
{¶ 3} Defendants account for the collision in the manner that follows.
Immediately preceding the accident, Joyce was traveling in the southbound lane of
Route 127. As he approached the intersection of Routes 127 and 81, he was in
radio contact with a truck driven by Gary Yontz. The truck driven by Yontz was
directly in front of Joyce and directly behind Beyer as all three vehicles approached
the intersection. Yontz told Joyce that the vehicle in front of Yontz—Beyer’s
Jeep—was making a right-hand turn onto Route 81. Yontz passed Beyer’s Jeep on
the left well before reaching the intersection. Joyce testified that, upon seeing
Beyer’s Jeep beginning a right-hand turn, Joyce “hugged the center line” in order
to pass Beyer’s Jeep as it completed its right turn. According to Joyce, as he neared
the intersection, Beyer pulled his Jeep off Route 127 onto Route 81, made a U-turn
and reentered the intersection of Routes 127 and 81 traveling in a northeasterly
direction. Joyce claims that he then swerved into the northbound lane of Route 127
in an attempt to avoid colliding with Beyer’s Jeep, but was unsuccessful.
{¶ 4} After trial, a jury returned a general verdict in favor of the defendants
and answered the following interrogatory in the negative: “Was [Joyce] negligent
and did that negligence directly and proximately cause any injury to the plaintiff?”
The court failed to render judgment on the verdict in accordance with Civ.R. 58(A).
{¶ 5} Plaintiff moved for a new trial on grounds that the supposed judgment
was against the manifest weight of the evidence (Civ.R. 59 [A][6]) and contrary to
law (Civ.R. 59[A][7]), and on the basis of misconduct of the prevailing party
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(Civ.R. 59[A][2]).1 The trial court granted plaintiff’s motion, finding that the
judgment was contrary to law.
{¶ 6} The defendants appealed to the Third District Court of Appeals, which
upheld the trial court’s order by a two to one vote. The appellate court also
grounded its reasoning solely on Civ.R. 59(A)(7) (judgment contrary to law).
{¶ 7} The cause is now before the court pursuant to the allowance of a
discretionary appeal.
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Stephen P. Gehres and Martin D. Burchfield, for appellee.
Cooper, Walinski & Cramer, Richard Walinski, J. Michael Vassar and Paul
R. Bonfiglio, for appellants.
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COOK, J.
{¶ 8} In O’Day v. Webb (1972), 29 Ohio St.2d 215,
58 O.O.2d 424,
280
N.E.2d 896, paragraph two of the syllabus, this court held that “[t]he fact that a
question of law involves a consideration of facts or the evidence, does not turn it
into a question of fact or raise a factual issue; nor does that consideration involve
the court in weighing the evidence or passing upon its credibility.” With respect
to questions of law, O’Day requires a court to consider both facts and evidence in
reaching its legal determination and enjoins the court from weighing the evidence
or passing on issues of credibility.
Id. at 218-219,
58 O.O.2d at 426,
280 N.E.2d at
898-899. The central question in this case is whether, in ordering a new trial on the
ground that the judgment was contrary to law, the trial court impermissibly
1. Plaintiff’s argument that the verdict was contrary to law asserted that the jury had failed to follow
the trial court’s charge on assured clear distance (R.C. 4511.21[A]), as evidenced by its answer to
an interrogatory which, according to the plaintiff, demonstrated the jury’s finding that Joyce had not
been negligent in any manner. Plaintiff asserted that the evidence at trial conclusively demonstrated
that Joyce had been negligent as a matter of law in failing to keep an assured clear distance and that
the jury’s finding to the contrary demonstrated that its members had failed to follow the trial court’s
charge.
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conducted a weighing of the evidence and an assessment of the credibility of
witnesses.2 Because we conclude that it did, we reverse the judgment of the
appellate court and reinstate the original jury verdict.
{¶ 9} Central to the dispositions reached by the trial court and court of
appeals is the characterization of defendants’ evidence regarding the extent to
which Beyer initiated a right-hand turn before eventually turning left. Under the
defendants’ theory, Beyer left the marked portion of the southbound lane of Route
127, used Route 81 to make a U-turn, and reentered the intersection crossing
Joyce’s line of travel. The effect of this evidence, if believed by a jury, would be
to demonstrate that Beyer departed Joyce’s line of travel and reentered it suddenly,
thus providing a legal excuse for failing to maintain an assured clear distance
(Erdman v. Mestrovich [1951], 155 Ohio St. 85,
44 O.O. 97,
97 N.E.2d 674) and
for driving on the left side of the roadway within one hundred feet of an
approaching intersection (Satterthwaite v. Morgan [1943],
141 Ohio St. 447,
25
O.O. 581,
48 N.E.2d 653).
{¶ 10} In concluding that the jury verdict was contrary to law, the trial court
grounded its determination on the fact that there was “no credible evidence that
[Beyer’s] vehicle ever completely left the U.S. Route 127 southbound right of way
onto the westbound State Route 81 right of way, and then suddenly entered back
into U.S. Route 127.” (Emphasis added.) In conjunction with its finding, the court
concluded that there remained no legal excuse for Joyce’s failure to keep an assured
clear distance from Beyer’s car (R.C. 4511.21) or his act of driving on the left side
2. We do not consider whether the trial court’s order of a new trial may be supported by Civ.R.
59(A)(6) (weight of the evidence), as both the trial court and court of appeals based their orders on
Civ.R. 59(A)(7) (contrary to law). As stated by this court in O’Day, supra, 29 Ohio St.2d at 218,
58 O.O.2d at 426,
280 N.E.2d at 898, review of a trial court’s ruling on a motion for new trial is
limited to that which the court has specified in writing as the cause for which the new trial was
allowed pursuant to Civ.R. 59.
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of the roadway within one hundred feet of an intersection (R.C. 4511.30[C]) and,
therefore, that Joyce was negligent as a matter of law.
{¶ 11} In reviewing the order for a new trial, the appellate court noted the
determinative nature of the trial court’s finding such a void of evidence, stating that
“if [Beyer] did in fact leave the south bound lane of Rt. 127 he would no longer be
a discernible object in [Joyce’s] path of travel and the assured clear distance ahead
rule would no longer apply.” The appellate court additionally noted that the same
evidence of Beyer’s maneuvering could justify Joyce’s act of driving in the left lane
as an effort to avoid a sudden emergency. Nevertheless, the appellate court upheld
the trial court’s order, concluding that the trial court neither weighed the evidence
nor assessed the witnesses’ credibility, but “merely determined the facts of the case
in order to apply the law of assured clear distance ahead and driving left of center
within 100 feet of an intersection.”
{¶ 12} Initially, we note that the analysis employed by the trial court
contains a faulty legal premise. The trial court would require Beyer’s vehicle to
have passed completely over the right white edge line of Route 127 or a
continuation of it, thereby entirely leaving the marked southbound highway lane,
in order to end Joyce’s duty to keep an assured clear distance ahead. See Kohnle v.
Carey (1946), 80 Ohio App. 23, 27,
35 O.O. 413, 415,
67 N.E.2d 98, 100-101.
However, as made clear by this court in Pallini v. Dankowski (1969),
17 Ohio St.2d
51,
46 O.O.2d 267,
245 N.E.2d 353, paragraph one of the syllabus, “[t]he word
‘ahead,’ as used after ‘assured clear distance’ in the first paragraph of section
4511.21, Revised Code, means to the front of and within the directional line of
travel of a motorist whose conduct allegedly violates such statute.” (Emphasis
added.) Therefore, in determining assured clear distance, the question is whether a
vehicle is in the path or line of travel of a driver of a following vehicle, not whether
the vehicles are in the same lane.
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{¶ 13} As stated by the Pallini court, “[i]f all traffic lanes were the exact
width of the vehicles moving therein, no problem [with the line/lane distinction]
could result. Since such is not the case, however, a discernible object could be
within a motorist’s traffic lane of travel, but not within his directional line of travel,
and the statute would have no application.” Id. at 55,
46 O.O.2d at 269,
245 N.E.2d
at 356. Accordingly, when a lead vehicle departs from a following motorist’s line
or path of travel, only to reenter the line or path of travel suddenly and without the
fault of the following motorist at a forward distance insufficient to allow the
following motorist to avoid collision in the exercise of ordinary care, the following
motorist is not negligent per se for failing to maintain an assured clear distance.
This is true regardless of whether the lead vehicle completely leaves the lane of
traffic in which both the lead and following motorist are traveling.
{¶ 14} Error in the courts’ pronouncement of the law of assured clear
distance was not raised as a proposition of law in this case. Additionally, the
appellant has not specifically pointed to evidence produced at trial that Beyer
departed from Joyce’s line of travel as opposed to his travel lane (i.e., that Beyer
moved partially onto the berm of the southbound lane and that Joyce
simultaneously hugged the center line to a position where Beyer’s Jeep was no
longer in Joyce’s path of travel).3 Accordingly, we will review this case to
determine whether there was evidence before the jury that Beyer’s vehicle
completely left the southbound lane of Route 127 before attempting a left turn.
Such a showing would necessarily demonstrate that Beyer’s Jeep departed from
Joyce’s path of travel, as all accounts of the trial testimony placed Joyce to the east
of the western boundary of Route 127 at all times.
3. The appellate court overruled the defendants’ assignment of error challenging the trial court’s
pronouncement of the assured clear distance rule, holding that “[t]here is no evidence in this record
to show that defendant’s truck could safely get past Tim’s car without leaving the southbound lane
of travel.”
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{¶ 15} Generally, “[w]here conflicting evidence is introduced as to any one
of the elements necessary to constitute a violation of statute, a jury question is
created.” Tomlinson v. Cincinnati (1983), 4 Ohio St.3d 66, 69, 4 OBR 155, 158,
446 N.E.2d 454, 456. It is then within the jury’s province to assess credibility of
the witnesses and determine whose testimony and evidence warrants belief. Upon
Civ.R. 59(A)(7) review, the trial court and court of appeals found a void of evidence
regarding Beyer’s departure from the marked portion of the southbound lane of
Route 127 and therefore determined that no jury question regarding the application
of R.C. 4511.21 or 4511.30 had been raised. In reaching that conclusion, however,
the lower courts impermissibly disregarded key portions of defense witnesses’
testimony based on issues of credibility.
{¶ 16} In reviewing the trial testimony, the appellate court stated, “A close
examination of [Joyce’s] testimony reveals that [Joyce] admitted that he would be
speculating if he testified that [Beyer’s] vehicle had completely left the south bound
lane of Route 127. Thus, he offered no evidence about the location of [Beyer’s
jeep].” At trial, Joyce testified that Beyer’s Jeep did, in fact, completely leave
Route 127, turning onto Route 81 before reentering the intersection. While Joyce
hedged on cross-examination on whether Beyer’s Jeep completely crossed an
imaginary white line (representing a continuation of the white boundary line on the
westernmost edge of the southbound lane of Route 127 through its intersection with
Route 81), it was the province of the jurors to assess whether Joyce had been
successfully impeached on that issue by cross-examination.
{¶ 17} Yontz also testified that the Jeep crossed the white line along the
berm of Route 127 and made a complete turn onto Route 81 before reentering the
intersection. On review, the appellate court stated that “the [trial] court would be
entitled to disregard [Yontz’s testimony] based solely on the opportunity of the
witness to observe the events about which he testified.” While the fact that Yontz
observed these events through his rearview mirror at a distance of a quarter mile
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may have been a basis for a juror not to credit Yontz’s testimony, jurors were
equally free to accept it as credible, as the testimony was admitted and was not
thereafter stricken.
{¶ 18} In order for evidence on a particular issue to be proper for jury
consideration, it must be relevant and based on first-hand knowledge. Evid.R. 402;
Evid.R. 602. “Assessment of the accuracy, as opposed to the existence, of a
witness’s perception is a question of credibility for the trier of fact, and the
factfinder bears the responsibility of considering the adequacy of the witness’s
opportunity for knowing or observing the facts as to which testimony is provided.”
Weissenberger’s Ohio Evidence (1996) 192, Section 602.3; see, also, id. at 215,
Section 607.8.
{¶ 19} Yontz was permitted to testify regarding his perception of the events.
Once he was permitted to testify, the accuracy of his perception was an issue of
credibility for the jury to determine.
{¶ 20} We also conclude that the appellate court erred in resting its
judgment as a matter of law on an exhibit from which the trier of fact could have
drawn various inferences. On cross-examination, Yontz was presented with a
transparency depicting the intersection and asked to show on that diagram with a
paper rectangle, the location of the Jeep as it proceeded into the U-turn. From this
unscaled diagram exhibit, which depicted one corner of Beyer’s Jeep remaining in
the Route 127 right-of-way as it proceeded into its right-hand turn, the appellate
court inferred as a matter of law that Beyer’s Jeep never left Route 127. The
appellate court thereby appears to have dismissed the fact that the diagram showed
only the beginning of a turn and did not demonstrate the Jeep’s attitude as it
proceeded through its U-turn. The appeals court’s legal determination also appears
to ignore Yontz’s testimony on redirect that the diagram’s inaccuracy did not allow
him to place Beyer’s Jeep on the berm of the road as was the case.
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{¶ 21} In support of the plaintiff’s account of events, the trial court and
court of appeals additionally relied on the importance of the point of impact of the
vehicles. The point of impact, as established by a gouge mark in Route 127, was
north of the intersection of Routes 127 and 81, or at least north of the center of the
intersection. The appellate court concluded that, in order to reach the point of
impact after executing the type of turn to which Joyce testified, Beyer’s Jeep would
have had to circle all the way around and travel in a northerly direction. Plaintiff’s
expert opined that this would have resulted in a head-on collision. The appellate
court characterized the physical evidence as demonstrating that the force of impact
was back to front, rather than head-on, and noted that this evidence supported the
trial court’s determination. There was, however, expert testimony admitted
supporting both the plaintiff’s and defendants’ theories.
{¶ 22} Defendants acknowledged that the point of impact was at a location
north of the center of the intersection and produced evidence by way of lay and
expert witness testimony supporting the defendants’ account of the events as
follows. Joyce testified that he swerved into the northbound lane of Route 127 in
an attempt to avoid Beyer’s Jeep. Joyce further testified that he was moving in a
southeasterly direction, across the centerline, when he struck Beyer’s Jeep in the
northbound lane. Joyce also testified that Beyer “oversteered” his vehicle when
executing his exaggerated left turn, which could account for the point of impact
being north of the intersection.
{¶ 23} The defendants’ expert, Peter Cooley, testified that Beyer was
capable of maneuvering his Jeep in a manner consistent with Joyce’s account of the
events and that damage to the vehicles was consistent with a collision of the
vehicles at the angle of impact to which Joyce testified.
{¶ 24} Again, given competing inferences arising from the physical
evidence, it was the jury’s responsibility, as trier of fact, to determine which
account of the events to believe. The trial court permitted both sides to present
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expert testimony to assist the jury in analyzing the physical evidence. Once expert
testimony was admitted, it was the jury’s role to assess the experts’ credibility and
to assign weight to the experts’ testimony and opinions. See State v. Pargeon
(1991), 64 Ohio App.3d 679, 682,
582 N.E.2d 665, 667.
{¶ 25} In reaching its verdict and its answer to the interrogatory, the jury
adopted the defendants’ account of the events. The trial court, in ordering a new
trial under Civ.R. 59(A)(7), disregarded testimony given by defendants’ witnesses
in reaching its conclusion that there was a void of evidence from which the
defendants could have demonstrated a legal excuse for noncompliance with the
assured clear distance rule and the statute prohibiting passing when approaching an
intersection. Therefore, the trial court’s review of the evidence was not limited to
a determination of what evidence was admitted at trial, but necessarily included an
evaluation of the witnesses’ credibility and assignment of weight to the evidence
admitted. By invading the jury’s province as factfinder in determining whether the
judgment was contrary to law within the meaning of Civ.R. 59(A)(7), the trial court
committed legal error. O’Day, supra. Accordingly, we reverse the judgment of the
appellate court and order the trial court to enter judgment in accordance with the
verdict.
Judgment reversed.
MOYER, C.J., DESHLER, RESNICK and STRATTON, JJ., concur.
F.E. SWEENEY and PFEIFER, JJ., dissent and would affirm the judgment of
the court of appeals.
DANA A. DESHLER, JR., J., of the Tenth Appellate District, sitting for
DOUGLAS, J.
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