COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67835 SAMUEL MAINE : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION EARL HAWLEY : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-255517 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JAMES J. McDONNELL (#0005802) JOHN P. LUSKIN (#0040158) DANIEL P. McDONNELL(#00018109) 936 Terminal Tower Cleveland, Ohio 44113 For Defendant-Appellee: CURTIS W. SCOTT, JR. (#0012407) Law Offices of Jan A. Saurman 14650 Detroit Avenue - Suite 450 Lakewood, Ohio 44107-4210 - 2 - 2 SPELLACY, P.J.: Plaintiff-appellant Samuel Maine ("appellant") appeals the jury verdict in favor of defendant-appellee Earl Hawley ("Hawley"). Appellant had sought to recover for the injuries he sustained in a collision between his motorcycle and Hawley's automobile. Appellant assigns the following errors upon appeal: I. THE TRIAL COURT ERRED BY FAILING TO GRANT THE PLAINTIFF A DIRECTED VERDICT ON THE ISSUE OF NEGLIGENCE AT THE CLOSE OF THE CASE. II. THE TRIAL COURT ERRED BY DENYING PLAINTIFF'S MOTION FOR NEW TRIAL BECAUSE THE JUDGMENT WAS NOT SUSTAINED BY THE WEIGHT OF THE EVIDENCE. III. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR NEW TRIAL BECAUSE THE JURORS' ANSWER TO INTERROGATORY NO. 1 WAS INCONSISTENT WITH THE EVIDENCE. Finding the appeal to have merit, the judgment of the trial court is reversed. I. Appellant filed a complaint in which he alleged Hawley negligently operated his automobile and struck appellant's motorcycle causing injury to appellant. At trial, appellant testified that on October 2, 1990, he was traveling down Broadway Avenue in Maple Heights. Appellant averred he was traveling toward Cleveland using the center lane of the four lane road. He approached the intersection of Broadway Avenue and Maple Heights Blvd. at approximately 6:40 a.m. Although still dark, the area was well lit and appellant's view was unobstructed. The motorcycle was in fifth gear and appellant's speed was approximately 30 m.p.h. As - 3 - 3 appellant reached the intersection, a large, silver car suddenly appeared in front of him. Appellant had no time to brake or downshift before striking the car. He never saw the car until the moment before impact. Appellant did not recall seeing a bus in the curb lane. William Balcom testified as a traffic accident reconstruction expert. He stated there was no indication of excessive speed on the part of the appellant. Balcom believed 30 m.p.h. to be an accurate estimate of appellant's speed although admitting it was reasonable that the average shift point from fourth to fifth gear for the type of appellant's motorcycle would be at forty to fifty m.p.h. The lack of skid marks on the pavement showed a short time span between the car interceding into the motorcycle's path and the accident. Balcom opined Hawley stopped his automobile twenty- eight feet behind the intersection either prior to or at the caution light and then began to turn thereby cutting the corner. Fred Wade testified he got off a bus on Broadway and crossed the street. The bus turned onto Maple Heights Blvd. He observed a motorcycle coming down Broadway traveling in the curb lane at about twenty-five m.p.h. A Lincoln automobile began to turn left onto Maple Heights Blvd. and collided with the motorcycle. Maple Heights Police Officer Michael Lingo investigated the accident. Both appellant and Hawley stated to Officer Lingo that a bus was stopped in the curb lane. Appellant indicated to Officer - 4 - 4 Lingo that he came around the bus from the curb lane into the center lane prior to the accident. Defendant Earl Hawley testified he was driving in the center lane on Broadway Avenue. He stopped about ten feet back from the stop bar at Maple Heights Blvd. because a bus was coming down the opposite side of the street. Hawley wanted to see if the bus was going to stop or not. Hawley saw no other on-coming traffic. When the bus stopped one hundred thirty feet from the intersection, Hawley began to make his turn, cutting the corner short. He stopped the car when a bright light struck him in the face. The motorcycle then collided with Hawley's car. William Jackson, a professional engineer with special licensing in the area of accident reconstruction, testified Hawley did not see appellant's motorcycle because it was behind the bus in the curb lane. Appellant went into the center lane after the bus stopped. The headlight of the motorcycle was the bright light which appeared so suddenly to Hawley. There would have been no sudden light if the motorcycle was in the center lane all along. Jackson agreed appellant could have operated his motorcycle in fifth gear while travelling at thirty m.p.h. but this would stress the machine. The normal shift point for fifth gear is between forty to fifty m.p.h. The jury returned a unanimous verdict in favor of Hawley. The jury found Hawley was not negligent. - 5 - 5 II. In his first assignment of error, appellant argues the trial court erred by failing to grant him a directed verdict on the issue of negligence. Appellant maintains no evidence was admitted show- ing any negligence on his part. Appellant asserts the evidence shows he was not speeding and that Hawley's action of coming to a complete stop caused the accident. Civ.R. 50(A)(4) provides: When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. When ruling on a motion for a directed verdict, the trial court's function in a jury trial is not to weigh the evidence but to "determine whether there is any evidence of substantial proba- tive value in support of the nonmoving party's claim." Eldridge v. Firestone Tire & Rubber Co. (1985), 24 Ohio App.3d 94, 96. The determination to be made is not whether one set of facts is more persuasive than another but whether only one result could be reached under the theories of law presented in the complaint. Id. The Civ.R. 50(A) test looks to the sufficiency of the evidence on each element of a claim to take the case to the jury. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66. The general rule is that a directed verdict is appropriate only where the party - 6 - 6 opposing the motion fails to adduce any evidence on the essential elements of his claim or defense. O'Day v. Webb (1972), 29 Ohio St.2d 215. Therefore, a motion for a directed verdict presents a question of law as opposed to a question of fact. Id. Arguments which look to the weight of the evidence are inappropriate for purposes of ruling on such a motion. Strother v. Hutchinson (1981), 67 Ohio St.2d 282. R.C. 4511.42 governs the right of way when turning left. It states: The operator of a vehicle, streetcar, or trackless trolley intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right of way to any vehicle, streetcar, or trackless trolley approaching from the opposite direction, whenever the approaching vehicle, streetcar, or trackless trolley is within the intersection or so close to the intersection, alley, private road, or driveway as to constitute an immediate hazard. R.C. 4511.01(UU)(1) defines "right of way" to mean: The right of a vehicle, streetcar, track- less trolley, or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or he is moving in preference to another vehicle, streetcar, trackless trolley, or pedestrian approaching from a different direction into its or his path. The right of way is maintained if the person is proceeding in a lawful manner. If not, the preferential status is lost and the obligations of the two vehicles are governed by the rules of common law. Almanza v. Kohlhorst (1992), 85 Ohio App.3d 135. - 7 - 7 At trial, appellant denied seeing a bus stopped at the scene and stated he operated his vehicle in the center lane. Yet, the police report indicates both drivers informed the investigating officer the bus was stopped in the curb lane. Further, appellant told the investigating officer he came around the bus into the center lane before the accident. There was testimony by Hawley's expert witness that the sudden bright light Hawley saw was caused by appellant's headlight as he pulled out from behind the bus. Although visibility was good, neither driver saw the other. The lack of skid marks indicates there was little or no time to react prior to the accident. Appellant testified he was traveling at a speed of thirty m.p.h. The witness to the accident and appellant's accident reconstruction expert agreed with appellant's estimate of his speed. Yet both experts averred the normal point to shift into fifth gear would be between forty and fifty m.p.h. Two competing sets of facts were introduced at trial. There was evidence presented in support of Hawley's defense. The trial court did not err in denying appellant's motion for a directed verdict. Appellant also argues Hawley admitted he was negligent because Hawley began his left-hand turn before he was in the intersection. Appellant asserts Hawley did not make a legal turn and is negligent. - 8 - 8 To establish actionable negligence, a plaintiff must show the existence of a duty, breach of that duty, and an injury proximately resulting from that breach. Strother, supra at 285. Even if Hawley was negligent per se for beginning his turn before he was in the intersection, "negligence per se does not equal liability per se. Simply because the law may presume negligence from a person's violation of a statute or rule does not mean that the law presumes that such negligence was the proximate cause of the harm inflicted." Merchants Mut. Ins. Co. v. Baker (1984), 15 Ohio St.3d 316, 318. Indeed, negligence must be a proximate cause of an injury to have legal consequence. Osler v. Lorain (1986), 28 Ohio St.3d 345, 347. There was evidence presented that appellant abruptly changed lanes, coming from behind a stopped bus and causing the accident. As competing sets of facts regarding both parties negligence were entered into evidence, the trial court correctly denied the motion for directed verdict and submitted the issue for the jury's consideration. Appellant's first assignment of error is overruled. II. In his second assignment of error, appellant contends the trial court erred in denying his motion for a new trial as the judgment was not sustained by the weight of the evidence. Civ.R. 59 provides: - 9 - 9 A new trial may be granted to all or any of the parties on all or part of the issues upon any of the following grounds: *** (6) The judgment is not sustained by the weight of the evidence ***. The denial by a trial court of a motion for a new trial is subject to reversal on appeal only upon demonstration that the trial court abused its discretion. Yungwirth v. McAvoy (1972), 32 Ohio St.2d 285. In assessing whether a verdict is contrary to the weight of the evidence, trial courts are vested with wide discretion to determine whether a manifest injustice has been done. Rohde v. Farmer (1970), 23 Ohio St.2d 85, paragraph three of the syllabus. An appellate court may reverse a trial court's determination of whether or not to grant a new trial only where it finds an abuse of discretion. The reviewing court is not to substitute its judgment for that of the trial court. Markan v. Sawchyn (1987), 36 Ohio App.2d 136, 138. An abuse of discretion is more than an error of law or judgment but implies the court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Violation of specific statutory duties constitutes negligence per se. Grossman v. McClain (1988), 40 Ohio St.3d 359, 362. The driver of a vehicle intending to make a left turn within an intersection must yield the right of way to any vehicle approaching from the opposite direction when the approaching vehicle is close enough to the intersection as to constitute an immediate hazard. - 10 - R.C. 4511.42. Townsend v. Downing (1989), 58 Ohio App.3d 59. Additionally, R.C. 4511.36(B) provides: At any intersection where traffic is permitted to move in both directions on each roadway entering the intersection, an approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and by passing to the right of such center line where it enters the intersec- tion and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection. Further, no vehicle is to be driven left of the center line upon any four or more lane roadway which provides for two-way movement of traffic. R.C. 4511.25(C). Hawley testified he stopped approximately ten feet behind the stop bar on Broadway. He began his turn from this point, cutting the corner short. Hawley was on the wrong side of the road when he made his left turn. Expert witness William Belcom stated Hawley was twenty-eight feet back from the intersection when he began to turn. Hawley also stated the bus stopped one hundred thirty feet from the intersection. According to Balcom, if this were true and appellant did swing out from behind the bus, appellant would not have reached the intersection for 4.3 seconds. This would have allowed Hawley time to see the motorcycle before he began his turn and yield the right of way. Therefore, Hawley was in violation of - 11 - R.C. 4511.42 for failure to yield the right of way when making his turn. Hawley admitted to cutting the corner when he made his turn. He did not comply with R.C. 4511.36(B) in executing his turn. He also was driving left of center on a four lane roadway intended for two-way traffic. He violated R.C. 4511.25(C). Hawley was negligent per se for violating these statutes. Although negligence per se does not mean the negligence was the proximate cause of the accident, the common law duty of care requirement must also be met. Deming v. Osinski (1969), 21 Ohio App.2d 89, 93. Hawley admitted to being in the wrong lane at the time of the accident. Even if Hawley's testimony is accepted and the bus was stopped one hundred thirty feet from the intersection, there still was time for him to react and prevent the accident by yielding the right of way. That he did not see appellant before the accident does not mean he could not have seen appellant in time. See Falck v. Proos (1982), 8 Ohio App.3d 22. It was Hawley's duty to ascertain that there was no oncoming traffic before he began to turn and to execute his turn in a lawful manner. Appellant only was required to prove Hawley was negligent by a preponderance of the evidence. See Campbell v. Davis (1966), 8 Ohio App.2d 244, Hawley admitted he failed to execute his left turn in the proper manner and to being in the wrong lane at the point of impact. Hawley was at least partly negligent in causing the accident. - 12 - The jury's finding of no negligence is against the weight of the evidence. Appellant's second assignment of error is sustained. IV. Because of the determination of the second assignment of error, the remaining assignment of error is moot. Judgment reversed and remanded for a new trial. - 13 - This cause is is reversed and remanded for a new trial. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court 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. Exceptions. ANN DYKE, J. AND JOSEPH J. NAHRA, J. CONCUR. LEO M. SPELLACY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .