Clevenger v. Huling

Bbown, J.

The court cannot agree with plaintiff’s suggestion that deféndant’s failure to observe the requirements of Sec*202tion 4511.29, Bevised Code, prohibiting driving to the left of center when overtaking and passing, combined with defendant’s claimed failure to observe the requirement of Section 4513.15, Bevised Code, requiring that his vehicular lights shall reveal “objects at a safe distance in advance of the vehicle,” require a finding that the defendant’s negligence was the sole proximate cause of the plaintiff’s injury, under the facts of this case. If, as alleged by the defendant in his answer to the petition, as testified to in the trial and as found by the jury in its answer to the special interrogatory No. 5, the plaintiff was driving his motorcycle on the highway at night without lights, it is difficult to see how this fact can be disregarded in determining the cause of the accident.

Where in an action arising from a motor vehicle collision there is evidence of negligence on the part of the defendant and of contributory negligence on the part of the plaintiff, a jury question exists as to whether such negligence of the plaintiff proximately contributed to the collision. White v. Ohio Power Co., 171 Ohio St. 148.

Where a special finding under Section 2315.16 of the Be-vised Code is inconsistent with the verdict, the former shall control the latter, and the court may give judgment accordingly (Section 2315.17, Bevised Code). The special finding of the jury in this case was that the plaintiff was negligently operating an unlighted vehicle and that the plaintiff’s negligence in this regard proximately contributed to his injuries. Such a finding is, of course, inconsistent with a verdict granting damages to the plaintiff.

The form of the interrogatories is not defective since they are confined to findings “upon particular material allegations contained in the pleadings controverted by the adverse party,” as provided in Section 2315.16, Bevised Code. See, also, paragraph two of the syllabus, Miller v. McAllister, 169 Ohio St. 487. Under these pleadings we are of the opinion that paragraph four of the syllabus in Davison v. Flowers, 123 Ohio St. 89, is applicable. Seasonable minds cannot but agree that the plaintiff’s unlighted motorcycle proceeding in the westbound lane and into collision with the defendant’s car was, under the facts of this case, a contributing cause of the collision which resulted in *203the plaintiff’s injuries. The jury’s answers to the interrogatories clearly find that the plaintiff was guilty of contributory negligence barring recovery.

In view of the language of Section 2315.16, Revised Code, the trial court under the circumstances of this case properly entered judgment for the defendant.

Judgment affirmed.

Taft, C. J., Zimmerman, Matthias, O’Neill, Herbert and Schneider, JJ., concur.