Sech v. Rogers

Clifford F. Brown, J.,

dissenting. The judgments of the lower courts in favor of appellee should be reversed because of an inaccurate and confusing instruction on the definition of roadway which was prejudicial to appellant. The jury instruction given was equivalent to a directed verdict for appellee because in substance it charged the jury that appellee had a right to drive the bus upon the berm of the highway and had the right of way over appellant’s decedent when so operating her bus.

In connection with the jury instruction concerning the roadway and right of way as set forth in the majority opinion, the evidence indicates that the roadway had two lanes with a center line, together with a solid white line delineating the right extremity of appellee’s lane, but with pavement extending a few feet beyond such white line. Appellant contended that, under such circumstances, the lane of travel for the motorist is defined by the center line and the right white line. The trial court recognized the interpretation but stated:

“Well, gentlemen, I said the hard surface, meaning the paved surface. I do not agree with your theory, * * * that space outside — that white line álmost contiguously to the line of the hard surface is not a part of the hard road.

* *

“I will change the word to paved, because it could be gravel — but I will not make it to the white line.”

Counsel again objected and contended that the traveled portion of the highway is that which exists between the white lines. The trial court’s refusal to give this instruction was patent and clear error. The effect of the trial court’s charge was that appellee could be operating her vehicle to the right of the solid white line delineating the right boundary of her lane of travel and still enjoy the benefit of the right of way over appellant’s decedent, so long as her tires remained on the pavement, rather than gravel. Faced with such an instruction, the jury had little choice but to return a verdict for appellee upon the issue of negligence, inasmuch as there was no evidence that the wheel of her bus ever was off the pavement, even though there was evidence that her wheel was to the right of the solid white line. Accordingly the requested clarification of the law was of crucial importance to appellant’s case.

R.C. 4511.01 (EE) defines “roadway,” as follows: “* * * that portion of a highway improved, designed, or ordinarily used for vehicular travel, except the berm or shoulder. * * *”

R.C. 4511.01 (GG) states: “ ‘Laned highway’ means a highway the roadway of which is divided into two or more clearly marked lanes for vehicular traffic.”

R.C. 4511.33 provides that:

“Whenever any roadway has been divided into two or more clearly marked lanes for traffic * * * the following rules apply:

“(A) A vehicle * * * shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or *468 line until the driver has first ascertained that such movement can be made with safety.”

The purpose of the solid white line near the right edge of the paved portion of the highway is to designate the portion of the highway designed for vehicular travel.

Construing the evidence favorably for appellant, the jury reasonably could have found that appellee drove her bus in such a manner that the right wheels were to the right of the solid white line delineating the right boundary of the roadway and separating it from the berm or shoulder. Under the trial court’s instruction, the jury would have been required to find for appellee upon the issue of negligence, even if it made this finding. Since the trial court refused to correct this erroneous instruction, even when specifically requested by appellant’s counsel, this constituted prejudicial error justifying a reversal.

Further, the trial court prejudicially erred in instructing the jury on the doctrine of assumption of risk. In Anderson v. Ceccardi (1983), 6 Ohio St. 3d 110 , we merged the common-law defense of assumption of risk into the comparative negligence statutory scheme contained in R.C. 2315.19. In Wilfong v. Batdorf (1983), 6 Ohio St. 3d 100 , we adopted the comparative negligence standard set forth in R.C. 2315.19 as a modification of the common-law standard in Ohio, and held that this comparative negligence standard shall be applied to all negligence actions, irrespective of the occurrence date. Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St. 3d 206 .

Although the injury and death of appellant’s decedent caused by appellee in this case occurred in 1979, the trial took place in March 1981, long after the effective date of the comparative negligence provisions of R.C. 2315.19 on June 20, 1980. By reason of our recent holdings in the trilogy of Wilfong, Anderson and Hirschbach, supra, the defendant was required to be tried under the provisions of comparative negligence contained in R.C. 2315.19. Therefore, it was error to instruct the jury on the principles of contributory negligence as a complete bar to recovery as well as assumption of risk.

Accordingly, the discussion by this court of the former principle of assumption of risk and its elements is irrelevant, and Briere v. Lathrop Co. (1970), 22 Ohio St. 2d 166 [ 51 O.O.2d 232 ], has by implication been overruled by the Anderson case, supra.

A reversal of the judgment of the lower courts is required in order to make our decision here consistent with the recent holding in Hirschbach v. Cincinnati Gas & Elec. Co., supra.

Accordingly, I dissent.

Sweeney, J., concurs in the foregoing dissenting opinion.