COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68484 TERRENCE WHITTAKER, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION JOANNE BLACK : : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : SEPT. 21, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-267188 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANT-APPELLEE: Daniel F. Lindner, Esq. Keith Thomas, Esq. Melvin M. Gross, Esq. Meyers, Hentemann, Schneider 55 Public Square, Suite 1450 & Rea Co., LPA Cleveland, Ohio 44113 2121 The Superior Building Cleveland, Ohio 44114 -2- HARPER, J.: Plaintiffs-appellants, Terrence and Julia Whittaker, appeal from a jury verdict rendered in favor of defendant-appellee, Joanne Black, in the Court of Common Pleas of Cuyahoga County. Appellants submit that the trial court's errors in instructing the jury, failing to direct a verdict in their favor, and permitting the defense to pursue an unsupported theory, led to the erroneous verdict. A careful review of the record compels affirmance. The intersection of Broadway Avenue and East 71st Street in Cleveland, Ohio, forms a "Y," with East 71st ending at Broadway. Broadway is a four-lane road which runs northwest to southeast whereas East 71st runs north to south. A National City Bank branch is present on the northeast side of Broadway, with its driveway almost directly across from East 71st. A traffic signal is located just north of East 71st at Broadway for traffic heading southeast on Broadway; this signal directs traffic turning right onto East 71st as well. A second traffic signal is located at the intersection for traffic traveling northwest on Broadway and traffic turning either right or left from the northbound lanes of East 71st. This signal is placed almost directly in front of the bank branch's driveway, and hence also controls traffic exiting the driveway. A stop sign is also placed at the driveway. Terrence Whittaker, on September 13, 1993, traveled southeast on Broadway at approximately 3:00 p.m. He testified that as he proceeded through the intersection in the inside lane, with a green -3- light showing on the traffic signal, a collision occurred with the motor vehicle driven by Ms. Black as she exited the bank branch's driveway. Ms. Black's vehicle allegedly struck Mr. Whittaker's 1987 Chevrolet S-10 pickup truck at its rear bumper, taillight, and side quarter. Mr. Whittaker testified that the rear of his truck was underneath the traffic signal at the time of the collision. Mr. Whittaker denied that he saw Ms. Black's vehicle prior to the accident. Mr. Whittaker testified that immediately following the collision, he made a sharp turn to the right, and maneuvered onto East 71st where he pulled to the curb. He then exited his truck to speak with Ms. Black. Mr. Whittaker, therefore, denied that he was making a right turn on red onto East 71st at the time of the collision. Ms. Black testified that after she concluded some personal business at the National City Bank branch, she pulled her Ford Escort up to Broadway, but stopped because the traffic signal was red. A couple of seconds later, the light turned green, so Ms. Black looked to her right and saw that the traffic was clear. She looked to the left and saw that the northwest bound traffic on Broadway was stopped, so she proceeded to cross Broadway, heading toward East 71st. Ms. Black testified that she cleared the first three lanes of Broadway, but was "sideswiped" by Mr. Whittaker's truck as she entered the curb lane of southeast bound Broadway traffic. Mr. Whittaker's truck struck the side bumper of the passenger side of Ms. Black's automobile. -4- Ms. Black testified further that after Mr. Whittaker's truck struck her car, causing parts from her passenger headlight and front grill to fly to the left or to the south, Mr. Whittaker continued to drive down East 71st. Fearing that he would not stop, Ms. Black "chased him down 71st, blowing my horn." Mr. Whittaker subsequently stopped his truck, and engaged in a discussion with Ms. Black concerning the accident. Ms. Black testified that when Mr. Whittaker accused her of hitting him, she responded that he was attempting to turn right onto East 71st when the traffic signal was red, and thus "sideswiped" her car as she proceeded from the driveway to East 71st. The Whittakers filed their complaint in the trial court on March 16, 1994, setting forth a personal injury claim on behalf of Mr. Whittaker. The complaint also included a loss of services claim on behalf of Mrs. Whittaker. The trial court referred the matter to arbitration and a panel of arbitrators heard the matter on November 16, 1994. The panel found in favor of Mr. Whittaker on November 23, 1994, awarding him $7500 plus costs. Ms. Black appealed from the award on December 7, 1994, and requested a hearing de novo. Trial by jury commenced on January 18, 1995. The jury subsequently returned a verdict in favor of Ms. Black on January 25, 1995, finding no negligence on her part. This appeal followed with appellants claiming as error: I. THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY OF BINDING CASE LAW. -5- II. THE TRIAL COURT ERRED BY FAILING TO DIRECT A VERDICT IN FAVOR OF THE PLAINTIFFS-APPELLANTS. III. THE TRIAL COURT ERRED BY ALLOWING DEFENSE COUNSEL TO ARGUE A THEORY WHICH WAS NOT SUPPORTED BY COMPETENT, ADMISSIBLE EVIDENCE IN THE RECORD. Appellants, in their first assignment of error, challenge the trial court's refusal to instruct the jury on "binding" case law. Specifically, appellants refer to the syllabus in Kish v. City of Cleveland (1956), 102 Ohio App. 453, in arguing that the trial court should have instructed the jury as follows: "A motorist who leaves the place of safety and enters an intersection and drives into a danger, which is obvious and directly in front of him, and which he could not have foreseen, is guilty of negligence regardless of what color the traffic light at the intersection displays with regard to it." Initially, we refer appellants and appellants' counsel to S.Ct.R.Rep.Op. 2(F) which reads in pertinent part: (F) The syllabus of a Court of Appeals opinion shall not be considered the controlling statement of either the point or points of law decided, or law of the case, but rather as a summary for the convenience of the public and the Bar as a research and indexing aid. In a Court of Appeals opinion, the point or points of law decided in the case are contained within the text of the opinion, and are those necessarily arising from the facts of the specific case before the court for adjudication. *** Accordingly, appellants' reliance on the syllabus of Kish as "binding" case law is misplaced as the points of law of the opinion are contained within its text, and not the syllabus. Moreover, in Kish, multiple disinterested witnesses for both parties testified with regard to the color displayed on traffic control devices prior to a collision between a motor vehicle and a -6- streetcar. The city's evidence was that the streetcar proceeded into the intersection on the green light, and while it had the legal right to proceed, Kish ran into the streetcar after it passed the center of the intersection. One of Kish's witnesses testified that the traffic light turned from green to yellow upon the streetcar's approach. This court, on appeal, reviewed the plaintiff's evidence and concluded that if it were accepted as true, "the streetcar was directly across plaintiff's path before he had a legal right to proceed." Id., 459. The trial court in Kish instructed the jury, in part, as follows: "Benjamin Kish was required to be in the exercise of ordinary care for his own safety while operating his automobile and if you find that such care required him to look to the left for southbound traffic on Ninth Street before entering the intersection and you further find that he failed to so look, then he would be negligent. If you find such negligence directly caused or contributed to cause the collision, then Benjamin Kish cannot recover and your verdict must be for the defendant, the city of Cleveland." Id. We found this instruction to be proper under the facts of the case based upon the following analysis: [T]he law is that a plaintiff who leaves a place of safety and drives into a danger which is obvious and directly in front of him and which he could not avoid seeing under the circumstances as testified to by credible witnesses is guilty of negligence, no matter what color the traffic light might be as then displayed. The charge given, as requested by defendant, which stated that, if the jury found under the circumstances that the exercise of ordinary care would require the plaintiff to look to the left, then the failure to do so constituted negligence, stated a correct proposition of the law involved in the case, based on the fact situations claimed by the defendant and supported by credible -7- evidence, and was, therefore, properly given. *** (Emphasis added and sic.) A review of Kish, therefore, reveals that the trial court did not instruct the jury with the language requested by appellants in the present case. Rather, the trial court instructed the jury as to a motor vehicle driver's duty to use ordinary care after lawfully entering an intersection on a green light which changes thereafter. See, Indianapolis & Southeastern Trailways, Inc. v. Cincinnati St. Ry. Co. (1957), 166 Ohio St. 310; Prather v. Phillis Wheatley Assn. (1963), 8 Ohio App.2d 91; Case v. Carter (1956), 103 Ohio App. 11. See, also, 2 Ohio Jury Instructions (1994), Section 225.13(9). Appellants herein failed to request a charge under Section 225.13(9). Additionally, it is error for a trial court to charge a jury with respect to an issue which is not supported by the evidence. Becker v. Lake Cty. Mem. Hosp. West (1990), 53 Ohio St.3d 202, 208; Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 210; Hood v. New York, Chicago and Forrest (1905), 73 Ohio St. 1. Herein, both parties claimed they proceeded through the intersection on a green light. There was absolutely no testimony that either party entered the intersection on a green light which turned yellow while the party was passing through it. Consequently, the evidence did not support a charge regarding the use of ordinary care when a traffic signal changes color. Id. Finally, in determining the appropriateness of jury instructions, an appellate court reviews the instructions as a -8- whole. Schade, 210; Wozniak v. Wozniak (1993), 90 Ohio App.3d 400, 410; Wagenheim v. Alexander Grant Co. (1983), 19 Ohio App.3d 7, 16. Our review of the trial court's charge to the jury, in its entirety, expressed the law and covered the issues presented by the parties for consideration, including instructions as to right-of- way and reasonable care contained in 1 Ohio Jury Instructions (1994), Sections 7.12, 7.13 and 2 Ohio Jury Instructions (1994), Section 225.41, 225.42. Appellants' first assignment of error is overruled. Appellants' second assignment of error concerns the trial court's denial of their motion for directed verdict following the close of all of the evidence. They propose that the evidence demonstrated Ms. Black's negligence based upon either R.C. 4511.41 (A), 4511.42, 4511.44, or Kish, and, therefore, the trial court erred when it denied the motion. A motion for directed verdict is governed by Civ.R. 50(A)(4) which provides in relevant part: When a motion for 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. The standard to be applied by a trial court in determining a motion for directed verdict is the same standard to be applied in ruling on a judgment notwithstanding the verdict. Osler v. Lorain (1986), 28 Ohio St.3d 345, 347; Shore, Shibley & Co. v. Kelley -9- (1988), 40 Ohio App.3d 10, 13. A favorable ruling on a Civ.R. 50(A) motion is not easily obtained, as explained as follows: [T]he evidence adduced at trial and the facts established by admissions on the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in ruling upon either of the above motions. [Citations omitted.] Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275; See, Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 127; Osler; O'Day v. Webb (1972), 29 Ohio St.2d 215, 220. As stated supra, appellants contend that the evidence presented at trial demonstrated Ms. Black's negligent operation of her motor vehicle on September 13, 1993, and thus, they were entitled to a directed verdict. In order to establish actionable negligence, appellants had to show the existence of a duty, a breach of that duty, and an injury that proximately resulted from the breach. Mussivand v. David (1989), 45 Ohio St.3d 314, 318; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. Appellants rely on the following statutes to support their argument that Ms. Black negligently operated her vehicle: 1) R.C. 4511.41(A) Right-of-way at intersections. When two vehicles, including any trackless trolley or streetcar, approach or enter an intersection from different streets or highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right. -10- 2) R.C. 4511.42 Right of way when turning left. 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. 3) R.C. 4511.44 Right of way on public highway. The operator of a vehicle, streetcar, or trackless trolley about to enter or cross a highway from any place other than another roadway shall yield the right of way to all traffic approaching on the roadway to be entered or crossed. Appellants fail to rely, however, on R.C. 4511.12 and 4511.13 which state respectively, in relevant part: 4511.12 Obeying traffic signal devices. No pedestrian, driver of a vehicle, *** shall disobey the instructions of any traffic control device placed in accordance with this chapter, unless at the time otherwise directed by a police officer. 4511.13 Signal lights. Whenever traffic is controlled by traffic control signals exhibiting different colored lights, *** said lights shall indicate and apply to drivers of vehicles, streetcars, and trackless trolleys, and to pedestrians as follows: (A) Green indication: (1) Vehicular traffic, *** facing a circular green signal may proceed through or turn right or turn left unless a sign at such place prohibits either such turn. But vehicular traffic, *** including vehicles, *** turning right or left, shall yield the right-of-way to other vehicles *** lawfully within the intersection *** at the time such signal is exhibited. *** -11- (C) Steady red indication: (1) Vehicular traffic, *** facing a steady red signal alone shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or if none, then before entering the intersection and shall remain standing until an indication to proceed is shown except as provided in division (C)(2) and (3) of this section. (2) Unless a sign is in place prohibiting a right turn as provided in division (C)(5) of this section, vehicular traffic, *** facing a steady red signal may cautiously enter the intersection to make a right turn after stopping as required by division (C)(1) of this section. Such vehicular traffic, *** shall yield the right-of-way *** to other traffic lawfully using the intersection. *** (Emphasis added.) The evidence in the within case indicates that Mr. Whittaker and Ms. Black were involved in an automobile collision at an intersection controlled by two traffic lights. One light directed Ms. Black's travel, and the other that of Mr. Whittaker. It is not disputed that both parties could not have had a green traffic light or the right of way at the same time. Rather, either Mr. Whittaker or Ms. Black proceeded through the intersection lawfully under the direction of a green traffic signal while the other proceeded unlawfully through the intersection on a red traffic light. The trial court had to conclude from the evidence presented at trial that Ms. Black failed to obey the traffic signal, i.e., acted negligently in proceeding through the intersection, in order to grant appellants' motion for directed verdict. Since the evidence from both parties implicated the other as to the unlawful entry into the intersection, and Ms. Black testified that she did not see -12- Mr. Whittaker's vehicle until it collided with hers, reasonable minds can come to more than one conclusion with regard to Ms. Black's negligence. The trial court did not err in denying appellants' motion for a directed verdict under the facts of this case. Posin; Pariseau; Civ.R. 50(A)(4). Appellants' second assignment of error is overruled. Appellants, in their third assignment of error, charge that the trial court erred in allowing defense counsel to argue a theory to the jury which was not supported by competent, admissible evidence. Specifically, they cite to those portions of opening and closing arguments in which counsel presented a "sideswipe theory," a theory, according to appellants, which was pure speculation and thus prejudicially influenced the jury's deliberations. The "sideswipe theory" was originally brought out by defense counsel in opening statement without objection by appellants. It was appellants' counsel who elicited the theory for the second time when examining Ms. Black as if upon cross-examination. Ms. Black testified, without objection, that Mr. Whittaker sideswiped her. Appellants' counsel objected during defense counsel's closing statement when defense counsel argued that the manner in which Ms. Black's vehicle was damaged, was consistent with a sideswiping collision. Since appellants' counsel did not object to the introduction of the allegation that Mr. Whittaker sideswiped Ms. Black's vehicle via Ms. Black's initial cross-examination, they are now precluded from raising as an issue in this appeal whether the trial court -13- abused its discretion in permitting this evidence at trial. See, Villella v. Waikem Motors, Inc. (1989), 45 Ohio St.3d 36,40; Snyder v. Stanford (1968), 15 Ohio St.2d 31, 38. Therefore, the abuse of discretion standard contained in Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, which controls the admission of evidence, is not relevant to this assignment of error. Appellants are primarily concerned with defense counsel's closing statement wherein counsel suggests to the jury that the direction of the parts flying off Ms. Black's vehicle indicated that her vehicle was sideswiped by Mr. Whittaker's truck. Parties are afforded great latitude in closing argument. Pang v. Minch (1990), 53 Ohio St.3d 186, 194; Maggio v. Cleveland (1949), 151 Ohio St. 136. Whether counsel exceeds the permissible bounds of closing argument is, in the first instance, a discretionary function to be performed by the trial court. Pang, 194. Therefore, such determination will not be reversed on appeal absent an abuse of discretion. Id. This court recognizes that defense counsel is not a reconstruction expert and arguably should not express an opinion as to how one vehicle came into contact with another. See, e.g. Petti v. Perna (1993), 86 Ohio App.3d 508 (police officer's testimony as to cause of accident inadmissible since his lay opinion was premised on perceptions of others); Gilbert v. Richison (Oct. 4, 1994), Franklin App. No. 94APE03-0339, unreported (plaintiff's testimony regarding the location of his vehicle at time of accident, based on measurements taken at scene of accident and not -14- on first-hand knowledge, inadmissible because, in part, plaintiff not reconstruction expert). However, the trial court properly instructed the jury that counsel's statements were not evidence, and a presumption exists that the jury followed the instructions given to it by the trial court. Pang, 195. It is thus presumed that the jury in this case disregarded defense counsel's suggestion that the flight paths of parts from Ms. Black's vehicle were consistent with being sideswiped by Mr. Whittakers's truck. Id. The trial court, therefore, did not abuse its discretion when it overruled appellants' counsel's objection to defense counsel's statement. Appellants' third assignment of error is overruled. Judgment affirmed. -15- It is ordered that appellee recover of appellants her 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 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. JAMES D. SWEENEY, P.J., AND *JOHN V. CORRIGAN, J., CONCUR JUDGE SARA J. HARPER *Judge John V. Corrigan, retired from the Eighth District Court of Appeals, sitting by assignment. 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, .