Sech v. Rogers

Per Curiam.

The first issue presented is whether the trial court’s instruction to the jury, on the right of way, was erroneous. Appellant claims that the trial court’s amended instruction to the jury, on the right of way, is an incorrect statement of the law because the definitions given of roadway and highway erroneously included the paved portion thereof, to the right of the white line. For the reasons set forth below, we disagree.

A jury instruction must be considered in its entirety and, ordinarily, reversible error does not consist of misstatements or ambiguity in a part of the instruction. Snyder v. Stanford (1968), 15 Ohio St. 2d 31 [44 O.O.2d 18]. Hence we begin by reviewing the trial court’s charge and amendment thereto:

“Now, I want to quote to you a certain statute which you may find pertinent to this particular case.

“This incident occurred either on or adjacent to a highway or street. Street or highway means the entire width between the boundary lines of every way open to the public as a thoroughfare for the purpose of vehicular travel. Roadway means that portion of a highway improved or designed or ordinarily used for vehicular travel except the berm or shoulder.

“A lane of a highway means a highway, the road of which is divided into two or more clearly marked lanes for vehicular traffic. Now, the evidence, the pictures, the Exhibits and so on have established that this is a two-laned highway, one for traffic going east and one for traffic going west.

U* * *

“Now, as a matter of law, if you find that that Plaintiff — I am sorry, that the Defendant, Mrs. Rogers, was operating on the hard surface of the highway, then there is no indication that she was speeding, and she would have had the right-of-way as a matter of law because the evidence would indicate if you accept her statements or her version, that the other people who were moving into her path, that she had a right to continue in the direction that she was going.

“Now, the problem here, of course, in this case, is that we have two diametrically opposed stories, so my charge, hopefully, will apply to whichever one you would — you would apply my charge to the interpretation of the facts as you arrive at the interpretation of such facts in your deliberations in the case, and we are still talking about the issue of liability or responsibility.’’

After a request for correction by appellant, the trial court stated:

“Apparently I used one word that could be misunderstood. When I talked about the hard surface of the highway, to me, hard is paved, so quote, it is the paved surface of the highway that we are talking about, not the gravel, if *465any, or grass, if any, or what was commonly referred to in the book as berm, but beyond that I think my charge was okay.”

The trial court’s instruction is a correct statement of the law because it used the appropriate definitions set out in the Revised Code, for highway (R.C. 4511.01[BB]); roadway (R.C. 4511.01[EE]); laned highway (R.C. 4511.01[GG]); and right of way (R.C. 4511.01[UU]). Although the trial court, in its clarification of the law, could have repeated the definition of laned highway, we do not find this omission to be sufficiently confusing or ambigious to mislead the jury, warranting reversal, because as a general rule the additional instruction must be considered in conjunction with the original instruction which, in this case, properly defined roadway and laned highway. See Snyder v. Stanford, supra.

Furthermore, there is no evidence at any point in this case that the curved guardrail, which struck Sech, was resting between the white line and the end of the pavement. Nor is there any evidence that appellee operated the bus on or over the white line. Accepting appellee’s version of this accident, she never operated the bus to the right of the white line. Accepting appellant’s version of this accident, the bus driver clearly drove outside the highway and roadway, as defined by statute, before hitting the curved guardrail which struck decedent.

Appellant’s version of the accident was clearly rejected by the jury in its answer to the first interrogatory concerning appellee’s alleged negligence. Hence, even if we assumed that the trial court’s instruction was erroneous, there is no showing of prejudice here.

The second issue presented here is whether the trial court committed prejudicial error in refusing to instruct the jury on the doctrine of last clear chance.

Our court has held in the sixth and seventh paragraphs of the syllabus in Peters v. B. & F. Transfer Co. (1966), 7 Ohio St. 2d 143 [36 O.O.2d 180]:

“Where a plaintiff, by his own fault, caused himself to be placed in a perilous situation, he may recover under the rule of the ‘last clear chance’ notwithstanding his negligence, if the defendant did not, after becoming aware of plaintiff’s perilous situation, exercise ordinary care to avoid injuring him. (Paragraph one of the syllabus of Cleveland Ry. Co. v. Masterson, 126 Ohio St. 42, approved and followed.)

“For the doctrine of ‘last clear chance’ to be applicable it must be proved that the defendant became aware that plaintiff was in a position of peril at a time and distance when, in the exercise of ordinary care, he could have avoided injuring plaintiff.”

The facts in this case indicate the peril arose after the guardrail was swung into the path of the bus. The bus driver testified that, after becoming aware of the peril, she did everything in her power to avoid hitting the guardrail. Viewing the evidence most favorably to appellant, there was no evidence that appellee had time or was able to avoid injuring the decedent after becoming aware of the peril. Thus, the evidence does not warrant the ap*466plication of the doctrine of last clear chance. Consequently the trial court did not err in refusing to instruct the jury on the last clear chance doctrine.

The third issue presented is whether the trial court erred in instructing the jury on the doctrine of assumption of the risk.1

This court has defined assumption of the risk as follows:

“Assumption of the risk requires three elements: One must have full knowledge of a condition; such condition must be patently dangerous to him; and he must voluntarily expose himself to the hazard created.” Briere v. Lathrop Co. (1970), 22 Ohio St. 2d 166, 174-175 [51 O.O.2d 232].

There is no evidence in the record indicating that the three elements of Briere have been established by either appellant or appellee’s respective versions of what occurred. If the decedent was standing behind the posts, he certainly did not assume the risk of appellee operating the bus off the road and hitting the guardrail which struck and killed him. Conversely, if decedent and Mugrage were carrying the guardrail and swung it into the path of the bus, the doctrine of contributory negligence may be applicable here, but not the doctrine of assumption of the risk. Decedent cannot be said to have assumed the risk of injury simply because he was involved in his work and not watching for approaching vehicles. Decedent may have failed to appreciate the consequences of his action, but he did not assume the risk of injury. Hence, the facts do not warrant the application of the doctrine of assumption of the risk. Consequently, the trial court erred in instructing the jury on the doctrine of assumption of the risk. However, we find such error not to be prejudicial in view of the jury’s answer to the first interrogatory finding that the appellee was not negligent. This answer resolved the dispositive issue in this case obviating the need for the jury to address the affirmative defenses, including assumption of the risk. Consequently, the trial court’s instruction on assumption of the risk was immaterial as was the jury’s failure to answer the interrogatory pertaining to this issue. Skyway Aviation Corp. v. Minneapolis, N. & S. Ry. Co. (C.A. 8, 1964), 326 F. 2d 701.

For the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Celebrezze, C.J., W. Brown, Locher, Holmes and J. P. Celebrezze, JJ., concur. Sweeney and C. Brown, JJ., dissent.

By reason of our recent holdings in the trilogy of Wilfong v. Batdorf (1983), 6 Ohio St. 3d 100, Anderson v. Ceccardi (1983), 6 Ohio St. 3d 110, and Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St. 3d 206, this case would now be tried under the comparative negligence standard contained in R.C. 2315.19.