Dissents:
I respectfully dissent and would affirm the trial court's judgment in its entirely based on the manifest weight of the evidence.
For over one century the State of Ohio has charged all juries with the duty of weighing the evidence and assessing the credibility of witnesses. Hollenbeck v. McMahon (1875), 28 Ohio St. 1, at 9. It is axiomatic that in a negligence claim, a plaintiff must prove "the existence of a duty, a breach of duty and an injury resulting proximately therefrom." Menifee v. Ohio Welding Products Inc. (1984), 15 Ohio St. 3d 75, 77 (citations omitted).
Judgments which are supported by "some competent credible evidence going to all essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris v. Foley Construction Co. v. Loeb (1988), 37 Ohio App. 3d 188.
Indeed, the majority itself relies on Seasons Coal Co. v. Cleveland (1984), 10 Ohio St 3d 77, 79, 80, to support the proposition that, viz., (1) a reviewing court must make every reasonable inference in support of the judgment and (2) a reviewing court is bound to give the evidence the interpretation most consistent with the verdict and judgment. Seasons Coal, supra at 80. A reviewing court may not substitute its judgment for that of the trier of fact. Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St. 2d 41, 45.
In my opinion, the credibility of the witnesses played a vital role in the jury's verdict. The rule that appellate courts ordinarily not tamper with witness credibility is based on sound judgment and steeped in stare decisis. One of the rare times an appellate court must tackle the issue of witness credibility is when an assigned error is based on the verdict being against the manifest weight of the evidence. After reviewing the transcript in the case sub judice, it can be gleaneed from the written page the testimony of some witnesses lacked credibility.
For example, Mr. Anderson, the only other eyewitness to testify, gave conflicting testimony. In his signed statement made the same day of the accident, Mr. Anderson never mentioneed defendant made a fast or sharp left turn, which Anderson later stated at trial. Further, Mr. Anderson stated at trial defendant was travelling at "thirty to thirty-five miles per hour." This information was not included in the police report. Anderson's testimony is difficult to reconcile with the physical evidence. If the defendant's vehicle collided with the plaintiff at thirty to thirty-five miles per hour, as the plaintiff wants us to believe, why was there no damage to defendant's vehicle at the point of alleged impact?
The burden of proof in a negligence action is upon the plaintiff to establish by a preponderance of the evidence that defendant was negligent. Campbell v. Davis (1966), 8 Ohio App. 2d 244, 249 (emphasis added). The plaintiff failed to sustain this burden. Neither the driver nor pedestrian saw one another. The plaintiff "assumed" she was in the crosswalk. The plaintiff never saw defendant's vehicle approach. Police Officer Dowd testified regarding scene pictures in which defendant's vehicle was well beyond the crosswalk. No damage was done to the defendant's vehicle. This strains credibility if one is to believe the testimony of Anderson who stated defendant was going thirty to thirty-five miles per hour when she hit plaintiff. Further, R.C. 4511.48 read to the jury as part of the jury charge, requires pedestrians use ordinary care and yield the right of way to vehicles if the pedestrian is not crossing in the crosswalk. The jury found the plaintiff eighty percent negligent.
The majority itself points out: "[wlhere thee evidence is susceptible to more than one construction, a reviewing court is bound to give *361the evidence the interpretation most consistent with the verdict and judgment." Seasons Coal, supra, at 80.
A motion for a new trial will not be granted where the verdict is supported by some competent, substantial or credible evidence. Verbon v. Pennese (1982), 7 Ohio App. 3d 182.
The Jury could conclude, based upon defendant's testimony, and lack of damage to defendant's vehicle, she was operating her vehicle in a lawful manner as she turned left. Namely, defendant testified she was proceeding at five miles per hour as she turned left and the photographic evidence supported the collision occurring outside the crosswalk. Under the circumstances sub judice, I would affirm the trial court.