COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59849 NARKETAH GRIFFIN, ET AL. : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION GEORGE P. HERTZEL : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 162,498 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JOEL A. PERLMUTTER 1410 Standard Building Cleveland, Ohio 44113 For Defendant-Appellee: THOMAS E. BETZ Gallagher, Sharp, Fulton & Norman Bulkley Building - 7th Floor 1501 Euclid avenue Cleveland, Ohio 44115 - 2 - KRUPANSKY, J.: Plaintiff appeals from an order of the Cuyahoga County Court of Common Pleas denying her motion for a judgment notwithstanding the verdict following a jury verdict for defendant in plaintiff's personal injury action. The relevant facts follow. Plaintiff was a long time employee of Blue Cross and Blue Shield of Ohio, which is located on the corner of East Ninth Street and Prospect Avenue in Cleveland. On the evening of November 3, 1988, she and a few of her fellow co-workers were leaving the building after work at approximately 7:00 p.m. It was dark and raining heavily outside. Plaintiff had no umbrella, and was wearing a black coat. Plaintiff was walking with a fellow employee, Mary McClendan, who was to drive plaintiff home that evening. As they walked, the two women followed their supervisor, Sylvia Martin, who had left the building slightly ahead of them. At trial, all three women testified that they walked from the Blue Cross and Blue Shield building southward to the intersection of East Ninth Street and Prospect Avenue. They testified they then crossed East Ninth Street at the crosswalk. They further testified the light for the north and southbound traffic on East Ninth Street was red, and that they saw the "Walk" signal for the crosswalk they were using. They also testified there was a great deal of steam emanating from some manholes in the street, obscuring vision in the intersection, - 3 - which they stated was a fairly common occurrence for that intersection when it was raining. Defendant was driving a van northbound on East Ninth Street. He testified that as he recalled the incident, the light for traffic was green in his favor, and he estimated that he proceeded across the intersection at approximately twenty-six miles an hour. He testified that as he crossed the intersection, suddenly the plaintiff appeared in front of his van. Defendant testified he could not avoid hitting the plaintiff even though he applied his brakes as soon as he saw her; he testified that she appeared to be running across the street and that he did not believe plaintiff was in the crosswalk because he was already beyond it when he stopped his van. Defendant's testimony was supported by Jerome Allerton, the driver of a car directly behind defendant who witnessed the accident. Mr. Allerton was not available for trial, but his deposition was made available to the jury. Mr. Allerton testified he and defendant were stopped by the traffic light at the intersection of East Ninth and Prospect. He testified that when the light for the traffic on East Ninth Street turned green, both vehicles proceeded across the intersection. He testified he then saw plaintiff and another woman run across the street directly in front of defendant's van. He testified plaintiff was not in the crosswalk when he observed her. He further testified that he had written down for himself what he had witnessed the - 4 - night of the incident and was using that writing to refresh his memory. Following all the testimony, the jury returned a verdict for defendant. In response to the interrogatory propounded to them, "Was the Defendant negligent?", the jury's response was, "No." Plaintiff thereupon filed a motion for judgment notwithstanding the verdict, or alternatively, for a new trial. The trial court overruled plaintiff's motion. Plaintiff now timely appeals from the trial court's order, citing the following assignment of error: THE TRIAL COURT ERRED BY OVERRULING APPELLANT'S MOTION FOR A NEW TRIAL BECAUSE THE JURY'S FINDING OF "NO NEGLIGENCE" ON THE PART OF DEFENDANT/APPELLEE IS MANIFESTLY CONTRARY TO THE EVIDENCE AS A MATTER OF LAW. This assignment of error lacks merit. Plaintiff argues the evidence was sufficient to show defendant driver breached his duty of care toward pedestrians. This argument is unpersuasive. The trial court overruled plaintiff's motion for a new trial pursuant to Civ. R. 59(A), which states in pertinent part as follows: RULE 59. NEW TRIALS (A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: * * * - 5 - (6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence in the same case; *** 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. Moreover, 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 Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, 281. In Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, the following propositions of law were set forth; 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. Furthermore, 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. Generally, the weight of the evidence and the credibility of the witnesses are issues to be resolved by the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. Plaintiff argues the evidence demonstrated defendant did not comport with his statutory or common-law duty of care toward - 6 - her. She cites R.C. 4511.48 in support of her argument. However, her argument is not persuasive. R.C. 4511.48 provides in pertinent part the following: 4511.48 Right-of-way yielded by pedestrian. (A) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles, trackless trolleys, or streetcars upon the roadway. * * * (C) Between adjacent intersections at which traffic control signals are in opera- tion, pedestrians shall not cross at any place except in a marked crosswalk. * * * (E) This section does not relieve the operator of a vehicle, streetcar, or trackless trolley from exercising due care to avoid colliding with any pedestrian upon any roadway. (Emphasis added.) Furthermore, R.C. 4511.46(B) provides as follows: R.C. 4511.46 Pedestrian on crosswalk has right-of-way. * * * (B) No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle, trackless trolley, or streetcar which is so close as to constitute an immediate hazard. It has been held that violation of specific statutory duties constitutes negligence per se. Grossman v. McClain (1988), 40 Ohio St. 3d 359, 362. However, both motor vehicle operators and - 7 - pedestrians have a duty to proceed with reasonable care. See, e.g. Holding v. Chappel (1987), 41 Ohio App. 3d 250, 252 (driver has common-law duty of reasonable care); Saade v. Westley (May 15, 1986), Cuyahoga App. No. 50637, unreported (pedestrian crossing outside a crosswalk must be aware of traffic and act accordingly). In the case sub judice, however, the credibility of the witnesses played a vital role in the jury's verdict. The rule that appellate courts ordinarily do 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 gleaned from the written page the testimony of some witnesses lacked credibility. For example, plaintiff herself gave conflicting testimony. At trial, she testified on direct examination to the following: Q. Did you tell Doctor Kay all of your prior medical problems throughout your whole life? A. No, I didn't. He didn't ask me all of my prior medical. * * * Q. You didn't tell him about the back injury that you had five months prior to this accident? A. What back injury? - 8 - Q. Did you not have a back injury on June 14, 1988? A. June 14th? No. Q. Is it your testimony that you did not fall going upstairs and injure your back, and go to Meridia Suburban Emergency Room, on June 14th, 1988? A. I fell up the stairs and hurt my rib cage, not my back. * * * Q. Mrs. Griffin, is this your signature? A. Yes, it is. Q. And this document purports to be an emergency department triage record from Suburban Community Hospital, does it not? A. Emergency what? Q. Emergency Department record from Suburban Community? A. Yes, it is. Q. Presenting complaint, Narketah Griffin, back pain, does it not say that? A. What is the date on that? * * * Q. Is that Suburban Community Hospital? A. Yes, but what is this for? Q. What does that say here, acute lumbar sprain -- A. What is a lumbar? Q. You don't know what the lumbar is? A. No, I am asking you. - 9 - Q. I am not testifying. A. I don't know what it is. But I know in '88, I had no back pain. Q. Does this say 6/14/88, on the first document I showed you, where it says "back pain" and your signature appears right here, signature of patient? A. Yes, that's my signature. Q. That says 6/14/88, does it not? A. Yes. Well, maybe I had back pain then. (Tr. 43-47). Moreover, regarding the accident itself, plaintiff testified as follows: Q. Okay. Were you able to see Sylvia, as she -- do you recall seeing her, as she got to that point there, the northwest corner? A. As I say, it was a blinding rain, you know, and it's in your eyes and you are trying to -- Q. Okay. A. -- when I got to the corner, the light still said "walk" but Sylvia had proceeded across. Now, when it said "Don't walk" I don't know. * * * Q. So you proceeded into the crosswalk there? A. Yes. Q. And the signal was "Walk"? A. Yes. - 10 - Q. Did you notice what color it was, you know, north, southbound traffic? A. You mean going this way? (indicating) Q. Were you able to observe the traffic light here? A. You mean the one facing me? Q. Yes. A. Well, it was red. * * * Q. As far as what actually happened on that date, as far as the accident, which has been stipulated to, the last thing you know you were crossing legally? A. Yes, I was crossing legally. (Tr. 19-22.) However, in her deposition testimony, which was brought out on cross-examination, plaintiff stated the following: Q. Right after you got out of the building. Why don't you just tell me what happened? A. See, I signed the book, walked out. You have to walk up to the corner from the building. The light was -- the sign said "Don't Walk". I mean -- sorry, "Walk". The sign said "Walk". (Plaintiff's Depo. 10-11.) Thereafter, in her deposition, plaintiff further made the following statements: Q. Do you remember if he asked you how the accident occurred or where you were standing, anything of that nature? - 11 - A. I remember him asking me what color was the light. I think he asked me that and I told him -- I remember telling him, that man, some man that got out of the truck, a man with red or white hair. Okay? Q. Got out of what truck? A. I mean got out of the truck -- his car I guess. Q. Okay. A. And he was standing, you know, next to him. I remember him and I think I told him -- like I say, I was in shock, you know. I think I told him, well, I was crossing on the red light, you know. And as I say, I was just kind of in shock. (Plaintiff's Depo. 26-27.) Defendant's testimony, supported by that of Mr. Allerton, was that the traffic light was green for northbound traffic on East Ninth Street at the time of the incident. Defendant testified he didn't see plaintiff until she was right in front of him. Furthermore, defendant's expert witness corroborated the inference that defendant was operating his vehicle in a lawful manner. 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. - 12 - In the case sub judice, neither the driver nor the pedestrian saw one another. The plaintiff stated she never saw defendant's vehicle approach, and defendant stated he never saw plaintiff. The plaintiff stated she was in the crosswalk; however, this fact was in dispute. Furthermore, defendant's witness, Mr. Allerton, testified he saw plaintiff running across the intersection when the light was green for northbound traffic on East Ninth Street and plaintiff was not in the crosswalk when he observed her. In a case such as the one sub judice, where the plaintiff pedestrian charges the defendant driver with negligence and the defendant denies negligence and offers evidence directly in conflict with that of the plaintiff to support his case, a verdict for defendant will not be reversed on the weight of the evidence. Moody v. Vickers (1947), 79 Ohio App. 218. See, also, Warren v. Walsh (June 21, 1990), Cuyahoga App. No. 56586, unreported. As the jury could conclude, based upon defendant's evidence, that he was operating his vehicle in a lawful manner, it cannot be determined the trial court erred in overruling plaintiff's motion for a new trial based upon the manifest weight of the evidence. Accordingly, plaintiff's assignment of error is overruled, and the judgment of the trial court is affirmed. - 13 - It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN McMANAMON, P.J. and BLACKMON, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .