COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71289 : CYNTHIA A. CARNOVALE, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and v. : : OPINION CHERYL A. JACKSON : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 7, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-295537 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: DAVID A. MURRAY, ESQ. WILLIAM H. RIDER, ESQ. MURRAY AND ASSOCIATES 113 St. Clair Building 795 I.N.A. Building Suite 525 14701 Detroit Avenue Cleveland, Ohio 44114 Lakewood, Ohio 44107 - 2 - KARPINSKI, J.: Plaintiffs-appellants Cynthia and Anthony Carnovale appeal from a judgment on a jury verdict awarding $22,660 in damages after reduction for comparative negligence in this automobile accident personal injury action against defendant-appellee Cheryl Jackson. On September 15, 1995, Cynthia and Anthony Carnovale filed this personal injury and loss of consortium action arising out of an automobile accident that occurred on April 25, 1994. The complaint alleged that Jackson's negligently driving her vehicle into the path of a vehicle driven by Cynthia Carnovale resulted in personal injuries to Cynthia, the destruction of her vehicle, and lost wages. Anthony Carnovale, who was not in the vehicle, joined this action with a claim for loss of consortium. Jackson denied the substantive allegations and, inter alia, raised an affirmative defense of contributory negligence. The matter proceeded to a jury trial commencing August 19, 1996. The partial transcript of proceedings filed on appeal reveals that plaintiffs presented testimony from Jackson, Cynthia Carnovale, her treating physician, and Lakewood police sergeant 1 Gary Stone. Cynthia Carnovale testified that she was driving eastbound in the curb lane on Lake Road in Lakewood when Jackson, headed westbound, abruptly and without stopping, turned left onto 1 The record on appeal contains no testimony by Anthony Carnovale to support his claim for loss of consortium. - 3 - a side street in front of her. Carnovale testified that she was unable to stop her car or avoid colliding with Jackson's vehicle. Carnovale stated that, prior to the collision, three vehicles were in the center eastbound lane of Lake Road waiting to turn 2 left, but that she was never in that lane. Jackson provided a different version of the incident during her case in chief. Jackson indicated that Carnovale abruptly changed lanes, coming from behind the three vehicles waiting to turn left, and accelerated until colliding with the rear quarter- panel of Jackson's vehicle. Jackson specifically stated that she had an unobstructed view for several blocks and that there were no vehicles in the curb lane prior to her left-hand turn. Jackson testified that there were originally four vehicles in the center eastbound lane and that Carnovale was accelerating when she struck Jackson's vehicle. The jury found that both parties were negligent and that Carnovale suffered a total of $36,100 in damages. The jury found that Jackson's negligence caused 60% of the damages and that Carnovale's negligence caused 40% of her damages. The trial court, therefore, entered judgment on the jury verdict for Carnovale against Jackson in the amount of $22,660. Carnovale timely appeals raising two assignments of error. Carnovale's first assignment of error follows: 2 The parties testified that Lake Road has two lanes headed in each direction where the accident occurred. However, there was no dotted white painted line separating the two eastbound lanes of traffic. - 4 - THAT THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT IN FAILING TO GRANT APPELLANT'S MOTION FOR DIRECTED VERDICT, TIMELY MADE AT TRIAL, AS TO THE SOLE NEGLIGENCE OF THE DEFENDANT, THEREBY ALLOWING THE JURY TO SPECULATE AS TO WHETHER PLAINTIFF CYNTHIA CARNOVALE, WAS NEGLIGENT. [SIC] This assignment lacks merit. Carnovale contends that the trial court improperly denied her motion for directed verdict. Carnovale contends the evidence shows that she was not negligent. It is well established, contrary to Carnovale's argument, that courts must view the evidence in the light most favorable to the non-moving party when determining whether to grant a motion for directed verdict. Civ.R. 50(A)(4). Courts are not permitted to weigh the evidence and must determine whether reasonable minds could reach only one conclusion based on the evidence. We conclude, in compliance with this standard, that the trial court properly denied Carnovale's motion for directed verdict on the issue of her negligence in this case. Carnovale contends that she had a statutory right to proceed uninterrupted in her lane of travel in a lawful manner and that Jackson negligently violated her right-of-way by making a left turn in front of her. R.C. 4511.42. This argument correctly states the general rule, but ignores an even more fundamental principle that no motorist has an absolute right-of-way under all circumstances. Townsend v. Downing (1989), 58 Ohio App.3d 59, 60-61. Upon discovering that another motorist has not properly yielded the right-of-way, a motorist with the right-of-way must - 5 - nevertheless use ordinary care to avoid injuring the other motorist. Id. As in Townsend, the record in the case at bar indicates there was a genuine issue of fact for the jury to determine whether the motorist with the statutory right-of-way was negligent in striking a vehicle which made a sudden left-hand turn in front of her. This court affirmed the denial of a directed verdict under similar circumstances in Maine v. Hawley (Aug. 3, 1995), Cuyahoga App. No. 67835, unreported. Jackson testified during cross-examination in Carnovale's case in chief as follows: Q: And what did you do as you began to get near Brockley? A: I began to slow down. I had my turn signal on. When I got near the intersection, I saw all the cars were stopped. I had stopped for a second or two. The traffic coming eastbound was stopped, so I proceeded to go through the intersection, and then- Q: Did you -- A: And make my left turn. Q: I'm sorry. I interrupted you. A. And make my left turn. Q: Did you at any time see the automobile operated by Mrs. Carnovale? A: Not until I was just about through the intersection, and I saw something moving toward me out of the side. Q: Peripherally? A: And I looked, and she was accelerating and coming around, I believe, from the cars that were all stopped, and as she accelerated, she didn't see me - 6 - turning because she was pulling around the cars, and I didn't her because traffic was all stopped. Q: You saw her pull around? A: No, I did not see her pull around. Q: You saw her accelerate? A: I saw there was nothing moving in the curb lane when I started to make my turn. I saw her accelerating, and that's why I believe she pulled around from behind the parked cars or the cars that were stopped. (Tr. 13-14). Jackson thereafter testified as follows: Q: Could you see clearly down the curb lane of Lake Avenue? A: Yes, I could. Q: Those other three or four cars that were on your opposite side, on your left side facing you, they didn't block your vision in any way? A: No. There was no high van or anything like that. There was just regular automobiles. Q: And you could see over those cars? A: Yes, you can. (Tr. 15). According to Jackson's testimony, the collision occurred when Carnovale struck the rear quarter-panel of Jackson's vehicle after she had progressed more than two-thirds of the way through the turn onto the cross street. (Tr. 16). Carnovale argues there was insufficient evidence that she changed lanes or that she was accelerating immediately prior to the collision. However, when the testimony is viewed in the light most favorable to Jackson, jurors could make a reasonable inference that Carnovale abruptly changed lanes after coming from - 7 - behind the stopped vehicles prior to the collision. Accord Maine v. Hawley, supra at p. 8. Moreover, even if this inference that Carnovale changed lanes were unreasonable as she contends, Jackson testified that Carnovale continued to accelerate through the intersection until colliding with her car. On a motion for directed verdict, this court can not consider the credibility or weight to be given Jackson's testimony that she saw and heard Carnovale's vehicle accelerating prior to the accident. This case presents a classic conflict between two versions of an incident, each of which is supported by some evidence. Under the circumstances, it was a question of fact for the jury whether Carnovale exercised ordinary care prior to the accident. As a result, the trial court properly denied her motion for directed verdict. Accordingly, Carnovale's first assignment of error is overruled. Carnovale's second assignment of error follows: IN FAILING TO GIVE APPELLANTS' REQUESTED INSTRUCTION TO THE JURY, BEFORE ARGUMENT, THAT THE DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW IN FAILING TO YIELD THE RIGHT-OF-WAY TO THE APPELLANT WHILE TURNING LEFT AT AN INTERSECTION IN VIOLATION OF REVISED CODE SECTION 4511.42. [SIC] This assignment lacks merit. Carnovale complains that the trial court did not instruct the jury that Jackson was negligent "as a matter of law" for making a left-hand turn in front of her without yielding the right-of-way. We find that the jury was properly instructed and the trial court did not commit reversible error. - 8 - The partial transcript filed by Carnovale does not contain the trial court's instructions to the jury. However, the transcript contains statements by the trial judge indicating that she instructed the jury that Jackson's activity was "negligent," but that she declined to use the words "as a matter of law." The instructions given to the jury by the trial judge contained the substance of Carnovale's request. Carnovale has not cited any authority which requires the trial judge to also recite the terms "as a matter of law." The fact that the judge instructed the jury that Jackson was "negligent" made the finding mandatory on the jury "as a matter of law." The trial judge could properly find, under the circumstances, that using these additional terms would overemphasize Carnovale's claims regarding Jackson's negligence and distract or confuse the jury from considering her own comparative negligence. Moreover, Carnovale has not shown any prejudice from the omission of these terms, because the jury found Jackson negligent as instructed and there is no indication in the record before us that the failure to give the requested instruction verbatim had any effect on the jury's verdict. Accordingly, Carnovale's second assignment of error is overruled. We recognize, in summary, Carnovale's argument that the jury verdict was not what one would expect in a typical case involving a collision with a motorist making a left-hand turn. However, there was some evidence to support the claim that Carnovale was - 9 - also negligent and the jury was properly instructed concerning Jackson's negligence. Some of the ambiguity may arise from the absence of clearly painted lane markings on the street and the absence of a complete transcript of the evidence presented to the jury. Although one or more members of this panel may conceivably have reached different conclusions had they been jurors, Carnovale has not raised any argument that the jury verdict is against the manifest weight of the evidence, and the lack of a complete transcript precludes a finding in her favor on this issue. Moreover, we note that the jurors had a superior opportunity to view the parties and observe their demeanor when assessing their credibility and weight to be given their testimony. The jury found Jackson predominately responsible for the accident, and its award of $22,660 to Carnovale was not insubstantial. Under the circumstances, because Carnovale has not shown any error or basis to overturn the jury verdict, we affirm the judgment of the trial court. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant 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 Common Pleas 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. BLACKMON, P.J., and ABOOD*, J., CONCUR. DIANE KARPINSKI JUDGE *Judge Charles D. Abood, Retired, of the Sixth District Court of Appeals, sitting by assignment. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .