This was originally an appeal on questions of law and fact. However, counsel filed briefs and bill of exceptions and treated it as an appeal on questions of law, and in this opinion I will so consider it. I will refer to the parties in this opinion as they were designated in the court below, to wit, Rose Masterana, plaintiff, and Thomas D. Cashner, defendant.
Plaintiff filed her petition in the Common Pleas Court and alleged that on the night of January 14, 1955, she was riding as a passenger in the front seat of an automobile traveling in an easterly direction on 12th Street N.W. and the defendant was driving his automobile in a westerly direction on 12th Street N.W. and without any signal or warning he caused his automobile *Page 386 to be driven and operated from the westbound lane of travel over into the eastbound lane of travel, causing a collision; and plaintiff alleged negligence on the part of the defendant. Plaintiff further says that by reason of the two car collision she suffered injuries and suffered headaches, and she prayed for damages in the sum of $25,495.20.
To this petition the defendant filed an answer and denies that the collision and any resulting injuries to plaintiff were due to any negligence on his part, and he says that the collision was the result of an unavoidable accident and was no fault of his.
Thereafter the cause came on for hearing before the court and jury, and the jury rendered a verdict in favor of the defendant, all twelve jurors signing the verdict. Thereafter, plaintiff appealed to this court and for her assignments of error says:
"1. The trial court erred in his general charge to the jury by repetitiously and unnecessarily charging the plaintiff with the burden of proof, so as to prejudice plaintiff-appellant's evidence and case.
"2. The trial court erred in charging the jury on the proposition of unavoidable accident when the same did not arise or exist under the evidence of the defendant appellee in the case.
"3. The trial court erred in his charge to the jury in charging that the plaintiff appellant had the burden to prove proximate cause, when there was no issue of proximate cause in the lawsuit under the statements of counsel and the evidence.
"4. The trial court erroneously charged on unavoidable accident when the same was not proper in this cause, but even so, charged improperly and erroneously on the law of unavoidable accident.
"5. The finding of the jury and the judgment in favor of the defendant-appellee is contrary to law and against the weight of the evidence, and is not supported by any evidence.
"6. Error upon the part of the trial court in failing to direct a verdict in favor of the plaintiff-appellant and to leave the question of the amount of damages only for the jury's determination.
"7. Refusal on the part of the trial court to instruct the jury in his general charge that the burden of proving unavoidable accident was upon the defendant."
The evidence in this case briefly is as follows: Serpentine *Page 387 Road in Canton is an extension of 12th Street N.W. and on the evening of January 14, 1955, the defendant had left his place of business, driving to a meeting which he attended, and later, at about 11 p. m., he picked up his young lady friend at the Canton Recreation Bowling Alley located at 12th and Market Streets. At no time as he drove in the city did he notice any slippery condition on the streets, and he stopped for numerous traffic lights. There was some snow on the ground and he was traveling at a speed of from 20 to 25 miles per hour up the hill on Serpentine Road and had reached the straight portion of the highway at the top of the hill, when suddenly and without warning his car went into a skid. He applied his brakes and attempted to turn his front wheels in the direction of the skid, without success, and his car unavoidably and unexpectedly drifted to the left and came in contact with the car in which the plaintiff was riding. There is no evidence of negligence in the record on the part of the defendant. He simply slipped at the top of this hill, got on the wrong side of the road, and collided with plaintiff's car. When he got out of the car he almost fell down.
A motion to direct a verdict in favor of the defendant was filed by the defendant at the close of the plaintiff's case and also at the close of all the testimony. On this question, I citeWilkeson, Admr., v. Erskine Son, Inc., 145 Ohio St. 218:
"1. Where defendant's motion to direct a verdict in its favor made at the close of plaintiff's evidence is overruled and defendant thereafter proceeds to introduce evidence, any error in the overruling of such motion is thereby waived. (Halkias v.Wilkoff Co., 141 Ohio St. 139, approved and followed.)
"2. Where a defendant, at the close of all the evidence, moves the court to direct a verdict in its favor, the plaintiff is entitled to have the evidence construed most strongly in his favor. (Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St. 469, approved and followed.)"
Defendant therefore waived his right to a directed verdict.
I will now consider the assignments of error of plaintiff. As to the first assignment of error, the majority opinion concedes that the same is not well taken, and the court below so held, so I will not give that assignment of error any further consideration. *Page 388
As to the second assignment of error, there was evidence in the record that this was an unavoidable accident, and the burden remained with the plaintiff. On this question I cite Blashfield's Cyclopedia of Automobile Law and Practice, page 130, Section 9C, as follows:
"The issue of unavoidable accident need not be interposed by special plea, but may be raised by the evidence. Since accident, in the very nature of things, precludes negligence as the proximate cause of any injury, proof of negligence of itself negatives accident. So if an injury sued for is caused by the negligence of either or both parties, it would not be from an unavoidable accident. That question should be submitted to the jury in such a manner as to place the burden of proving the negative thereon on the plaintiff."
Also, I cite Uncapher v. The Baltimore Ohio Rd. Co.,127 Ohio St. 351, as follows:
"1. The Supreme Court of Ohio is not obligated to search the record for error that is not indicated in the brief or oral argument of counsel for the complaining party, notwithstanding the assignments contained in the petition in error.
"2. Unavoidable accident occurs only when the disaster happens from natural causes, without negligence or fault on either side.
"3. The plea of unavoidable accident is diametrically opposed to the theory of negligence in any form.
"4. The term `accidental' is ordinarily a legal conclusion at best, but when used to qualify the discharge of a shotgun a good plea is thereby made. (Davison v. Flowers, 123 Ohio St. 89, distinguished.)"
And, also, on page 358 of the Uncapher case the following appears:
"`Inevitable accident' is defined by the same author as any accident which cannot be foreseen and prevented. This definition was adopted from Trent Mersey Navigation Co. v. Wood, 4 Doug., 287, 290, opinion by Lord Mansfield; McArthur Hurlbert v.Sears, 21 Wend. (N. Y.), 190, 198; Fish v. Chapman Ross,2 Ga. 349, 46 Am. Dec., 393.
"There is a more succinct definition, namely: An unavoidable accident is such an occurrence or happening as, under all the attendant circumstances and conditions, could not have been *Page 389 foreseen or anticipated in the exercise of ordinary care as the proximate cause of injury by any of the parties concerned.
"Can there be an unavoidable accident when one of the parties is negligent? Most certainly not.
"Inevitable accident occurs `only when the disaster happens from natural causes, without negligence or fault on either side, and when both parties have endeavored, by every means in their power, with due care and caution, and with a proper display of nautical skill, to prevent the occurrence of the accident.'Sampson v. United States, 12 Ct. Cl., 480, 491; Union SteamshipCo. v. New York Virginia Steamship Co., 65 U.S. (24 How.), 307, 16 L. Ed., 699."
Counsel for plaintiff cite the case of Lehman v. Haynam,164 Ohio St. 595. That case involved a "black-out," and there is a vast difference between a "black-out" and an unavoidable accident. As I have heretofore said, there is evidence in the record that there was no negligence on the part of the defendant whatsoever. He was not exceeding the speed limit, and he slipped on the ice and got on the wrong side of the road. In my opinion that is an unavoidable accident. While there is some evidence of the plaintiff to the contrary, the jury had the opportunity of seeing the witnesses and observing them on the witness stand, and their judgment is not contrary to the weight and sufficiency of the evidence.
Most of the evidence cited in the majority opinion was evidence given by the plaintiff. However, as I have heretofore stated, the jury heard the evidence in support of the defendant's claim, as I have heretofore outlined.
Since I am dissenting from the majority rule, I cite Section6, Article IV of the Constitution of Ohio, which reads, in part, as follows:
"No judgment of any court of record entered on the verdict of the jury shall be set aside or reversed on the weight of the evidence except by the concurrence of all three judges of a Court of Appeals."
That provision of the Constitution disposes of assignment of error No. 5, and it is my opinion that such assignment of error is not well taken.
On the questions involved, see State, ex rel. Squire, Supt.of Banks, v. City of Cleveland, 150 Ohio St. 303, the eighth paragraph of the syllabus of which reads as follows: *Page 390
"8. Where the evidence in a case is conflicting or where reasonable minds might differ as to the inferences to be drawn therefrom, both the trial court and the Court of Appeals are authorized and required upon motion to weigh the evidence, but in such a situation the Court of Appeals on an appeal on questions of law cannot as a matter of law find the facts otherwise than as found by the trier of the facts. In such asituation the sole function of the Court of Appeals is to weighthe evidence and either affirm the finding of the trier of thefacts or, if such finding be against the weight of the evidence,set it aside and remand for a new trial." (Emphasis added.)
And, on page 348, the following appears:
"The Court of Appeals had the authority to reverse the judgment of the trial court on the ground that the judgment is `against the weight of the evidence.' This was done. However, a final judgment was rendered by the Court of Appeals and this it was without authority to do inasmuch as a remand to the trial court is necessary when the Court of Appeals reverses a judgment as against the weight of the evidence. This court reverses the judgment of the Court of Appeals and remands the case to the Common Pleas Court for a retrial, which the Court of Appeals under its finding was required to do."
In conclusion, in view of the evidence submitted to a jury and the court, who had the opportunity of seeing the witnesses and observing their demeanor on the witness stand, and the fact that the jurors were unanimous in their decision in favor of the defendant, to me it is preposterous to set this judgment aside; and, for the reasons herein stated, I am of the opinion that none of the assignments of error of the plaintiff is well taken, and that the judgment of the Court of Common Pleas should be affirmed.
(Decided July 10, 1959.) ON APPLICATION for rehearing.
Per Curiam. This cause is before this court on an application for a rehearing of a decision reversing the judgment below in favor of the defendant and remanding the cause for a new trial. The decision is characterized by the appellee and dissenting judge as "preposterous" and as being contrary to decisions of the Supreme Court. These decisions have already *Page 391 been argued in briefs and commented on in opinions, both majority and dissenting. No new authorities have been cited.
Perhaps the appellee and the dissenting judge are somewhat confused as to what the record contains and what the majority opinion does say and does not say. It seems to us that more heat than logic has been presented.
To illustrate the record: In the dissenting opinion it is stated: "Most of the evidence cited in the majority opinion was evidence given by the plaintiff * * *." Let it here be pointed out that all the evidence cited in that opinion was evidence of the defendant on cross-examination.
Again, in the dissenting opinion it is stated: "A motion to direct a verdict in favor of the defendant was filed by the defendant at the close of the plaintiff's case and also at the close of all the testimony." There follows citation of authority and the conclusion that "defendant therefore waives his right to a directed verdict." This causes one to wonder whether the judge is under the impression that the defendant is appealing this case. Of course, the fact is, that assignment of error No. 6 was under discussion, which was the refusal of the court to grant the plaintiff's motion to direct a verdict at the close of all the testimony.
Perhaps it is well to state what the majority opinion holds and what it does not hold.
In the first place, as has been heretofore pointed out, the reversal is not in part on the weight of the evidence. The majority is not so naive as to think that this can be done by two judges. It is that there is no sufficient evidence in the record to sustain a determination of unavoidable accident. There is not a conflict of evidence which this court weighs but this is based on the defendant's own testimony. No constitutional limitation applies here.
In the second place we have not attempted to change the long established rule in Ohio that the defense of unavoidable accident is not an affirmative defense but may be interposed under a general denial. What we are saying is that, when this defense is interposed and the evidence conclusively shows that the defendant is prima facie guilty of negligence per se which was the proximate cause of the injury, the burden of proof is upon him to show that his violation of the statute was due to *Page 392 events unforeseeable, acts of God or other causes over which he had no control and which rendered it impossible for him to have avoided the injury. And we conclude in this case that the defendant, knowing the condition of this snowy road, had a duty to be in such control of his automobile that it did not skid to the wrong side of the road. The skidding was a foreseeable circumstance under such conditions.
In the final analysis the difference in the position of the appellee and this court is the interpretation of two cases, viz,Kohn, Admx., v. B. F. Goodrich Co., 139 Ohio St. 141, and Lehman v. Haynam, 164 Ohio St. 595. The appellee relies upon certain language in the opinion, not the syllabus, in the former case, and our position is based on the third paragraph of the syllabus of the latter, with its supporting argument. If there is conflict in the two cases, and we don't think there is, theLehman case being a later pronouncement must control. This case is brushed off by the appellee with the statement that it is a blackout case. This does not meet the issue. The fundamental and underlying principle is the foreseeableness of either the blackout or the skidding or whatever causes the prima facie negligence. If one has any reason to anticipate the occurrence he is not excused.
We think that this not only is the law but that it should be. In this day and age of heavy automobile and truck traffic, if the drivers thereof so manage their vehicles on wet, snowy and slippery roads, which are well known to them, so that they skid across the center line and smash up innocent occupants of other automobiles obeying the law, and can then escape liability by claiming an inevitable accident, this court wants no part of such pronouncement.
The application for a rehearing is denied.
Application denied.
PUTNAM, P. J., and McLAUGHLIN, J., concur. *Page 393