I respectfully dissent from the conclusion reached by my associates that final judgment should be entered for the defendant. The record discloses a conflict in the evidence, and a jury issue is presented. However, in my opinion, the verdict and judgment are not sustained by sufficient evidence, and the cause should be remanded for a new trial.
The rule in negligence cases still uniformly recognized is that, in the absence of conflict, no fact issues arise for submission to the jury, and in such case the issues of negligence and *Page 188 contributory negligence, and also the issue of proximate cause, are issues for the determination of the court as matters of law.
On the other hand, where the record discloses a material conflict in the evidence and, upon consideration thereof, reasonable minds may reach different conclusions on one or more issues of fact, a jury question is presented, and the judgment of the court is predicated on the jury's finding. When this procedure is followed, the constitutional right of a litigant to a jury trial is preserved inviolate.
The scintilla rule has been definitely repudiated in this state and in its stead the application of the rule of "reasonable minds" has been recognized as a standard for the guidance of the trial court. Hamden Lodge v. Ohio Fuel Gas Co. (1934), 127 Ohio St. 469, 189 N.E. 246. The court held in theHamden Lodge case that issues of fact are for the jury "where from the evidence reasonable minds may reach different conclusions upon any question of fact."
The application of the rule of reasonable minds was given recognition, in effect, by the Supreme Court in a number of cases prior to the Hamden Lodge case, as appears from the citations found in the court's opinion. We call particular attention to the cases of Jacob Laub Baking Co. v. Middleton (1928), 118 Ohio St. 106,160 N.E. 629, and Painesville Utopia Theatre Co. v.Lautermilch (1928), 118 Ohio St. 167, 160 N.E. 683.
In the Laub Baking Co. case, supra, so far as applicable here, the court held that where, upon the record, the jury, as "fairminded men" should reasonably arrive at one conclusion, it is the duty of the trial court to direct a verdict. This was a malicious prosecution case. The advice of counsel was set up as a special defense by defendant. It was undisputed that counsel who gave the advice was familiar with all the facts, as shown by the record made in previous litigation. Final judgment was entered for plaintiff in error.
On the other hand, as held in the Painesville Utopia Theatrecase, supra, "whenever, from conflicting evidence of the same witness or different witnesses, it becomes necessary to weigh such conflicting evidence * * *" issues of fact thus raised are for the jury. *Page 189
Subsequent to the Hamden Lodge case, it does not appear that the Supreme Court has extended the application of the "rule of reasonable minds." To illustrate, I cite some cases, well known to the profession, wherein the evidence together with reasonable inferences were in conflict, and where the trial court's refusal to direct a verdict and enter judgment was upheld. See:Horwitz v. Eurove (1934), 129 Ohio St. 8, 193 N.E. 644, 96 A.L.R., 782; Smith v. Zone Cabs (1939), 135 Ohio St. 415,21 N.E.2d 336; Glasco v. Mendelman (1944), 143 Ohio St. 649,56 N.E.2d 210; Betras, Admr., v. G. M. McKelvey Co. (1947),148 Ohio St. 523, 76 N.E.2d 280.
The later case of Lawrence v. Toledo Terminal Rd. Co. (1950),154 Ohio St. 335, 96 N.E.2d 7, negatively supports the conclusion already suggested. In its opinion, the court pointed out that there was evidence to support the claim of plaintiff that defendant was negligent in failing to maintain a good and sufficient crossing but held, as a matter of law, on theundisputed evidence, that plaintiff's own negligence was the proximate cause of his injury.
I call attention also to Ziebro, Admx., v. City of Cleveland (1952), 157 Ohio St. 489, 106 N.E.2d 161, a wrongful death case. The trial resulted in a substantial verdict for plaintiff administratrix. Following a remittitur, judgment was entered for plaintiff. The Court of Appeals, being unable to agree that the judgment was manifestly against the weight of the evidence and, finding no other prejudicial error, affirmed the judgment.
On the issue of contributory negligence of plaintiff's decedent, the Supreme Court entered final judgment for defendant. While it appeared that there was some dispute in the evidence, the court said in its opinion, "but all of which, for the purpose of this decision, must be accepted as true." The court held that decedent's presence on the streetcar tracks, without any explanation or reason for his presence there, "was clearly a proximate cause of his injury," and final judgment was entered for defendant.
In the instant case, the evidence and inferences that arise are conflicting in some material respects. It is undisputed, however, that the view of the intersection was practically unobstructed, *Page 190 and that the speed of defendant's motor vehicle, as it approached the intersection, was in excess of 25 miles per hour, prima facie unlawful and negligent.
A conflict is shown respecting the distance of defendant's vehicle from the point near the intersection where plaintiff observed the headlights of defendant's vehicle, which plaintiff thought was about 90 yards distance therefrom, and the claim of plaintiff that he was almost through the intersection when the collision took place. Plaintiff conceded, upon the trial, that he had misjudged the distance that defendant's vehicle was from the intersection.
Defendant's evidence tended to show that his motor vehicle was much closer than plaintiff's estimate of his distance from the intersection when plaintiff mistakenly concluded he could safely proceed through the intersection; that when defendant first saw plaintiff's vehicle he "jammed on his brakes" and brought his vehicle almost to a stop before the impact; that defendant's vehicle was near the center of the street at the time of the impact; that defendant's left front fender came in contact with the bumper and right rear fender of plaintiff's vehicle; and that following the impact defendant's vehicle "didn't move."
The evidence was conflicting as to the place of impact, the position of the vehicles following the collision, the location of the skidmarks made by defendant's vehicle, and in some other respects.
It is inferable from plaintiff's evidence that the motor vehicles collided with considerable force. Such inference does not appear to be raised on defendant's testimony.
The defendant, having lost his preferential right of way by driving his motor vehicle at a speed in excess of 25 miles per hour as he approached the intersection, owed a duty to plaintiff to exercise ordinary care, and plaintiff owed defendant a like duty. If it could be said, as a matter of law, that both plaintiff and defendant were negligent, there remains the further issue of fact whether plaintiff's negligence was a proximate cause of the collision.
In my opinion, it is not an oversimplification, or merely an elementary, abstract rule to point out that in negligence cases *Page 191 where the material facts and reasonable inferences, disclosed on the record, are in conflict, issues of fact are presented, upon which reasonable men, in resolving the facts, may reach different conclusions relative to such issues as negligence, contributory negligence or proximate cause.
When we apply the rule of reasonable minds as a test, the right of trial by jury would ordinarily be preserved where issues of fact arise by reason of conflicting evidence.
In the instant case, on the issues of fact, the jury found for the plaintiff. The record discloses no prejudicial error in the submission of the case. Under these circumstances, the jury's verdict and the judgment thereon, in my opinion, can not be disturbed by this court, unless such finding is considered to be manifestly against the weight of the evidence. As already indicated, I would remand the cause for a new trial.