COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71828 STELLA FALCOSKI ) JOURNAL ENTRY ) Plaintiff-Appellant ) AND ) -vs- ) OPINION ) ROBERT A. FISHER, JR. ) ) Defendant-Appellee ) Date of Announcement of Decision NOVEMBER 13, 1997 Character of Proceeding Civil appeal from Court of Common Pleas Case No. 301513 Judgment Affirmed Date of Journalization Appearances: For Plaintiff-Appellant: For Defendant-Appellee: GEORGE ABAKUMOV, ESQ. JOHN S. REA, ESQ. Reserve Square Building 2100 The Superior Bldg. 1701 East 12th Street 815 Superior Avenue Suite #3G Cleveland, Ohio 44114 Cleveland, Ohio 44114 2 JAMES M. PORTER, P.J.: Plaintiff-appellant Stella Falcoski appeals from a jury verdict and judgment for defendant-appellee Robert A. Fisher, Jr. arising out of a collision of their two motor vehicles. The jury found plaintiff to be 51% negligent and defendant 49% negligent. Plaintiff contends the trial court erred in submitting the issue of comparative negligence to the jury, that plaintiff was entitled to a directed verdict, j.n.o.v. or a new trial as the verdict was against the manifest weight of the evidence. We find no error and affirm. The case arose from a car accident on May 3, 1995 which occurred on the merging ramp leading from I-480 eastbound to I-77 southbound in Independence. The accident took place at 11:15 p.m. Both vehicles were originally traveling eastbound on I-480. Plaintiff was traveling ahead of defendant's vehicle. As plaintiff's car passed the State Road exit, she began experiencing engine trouble. Plaintiff testified that her engine was "jumping" and "bucking." Her speed slowed to 20-25 miles per hour due to the engine trouble. Plaintiff stayed on the highway hoping to make the Rockside Road exit. She never made the exit, the engine quit and she testified she came to a stop in the right hand lane of the ramp leading to I-77. Plaintiff did not pull her vehicle onto the right hand berm which would have accommodated her car. She testified that she sat in her car for a couple of minutes, then decided to exit the 3 vehicle. Before she could exit, her vehicle was struck from behind by defendant's vehicle. Defendant testified that he was heading eastbound on I-480 in the right hand lane, also using the ramp to I-77. He was driving on the ramp behind a black car following by 100 feet. Suddenly the black car swerved and closely passed plaintiff's stopped vehicle. Defendant attempted to swerve to the left lane but was unable to get by and struck plaintiff's vehicle from behind. Defendant testified that plaintiff's vehicle was stopped when he collided with it. An independent witness, Brian Dumont, observed the accident from the adjacent I-77 southbound freeway. The witness testified that plaintiff's vehicle was moving very slowly (i.e., 20 m.p.h.) on the ramp weaving from lane to lane. Dumont observed the car in front of defendant swerve, narrowly avoiding plaintiff's car. He also testified that as defendant tried to pass to the left, plaintiff's car moved to the left into the path of defendant's car. Dumont gave his observations to the police at the scene and they were contained in the police report. The trial court reserved on plaintiff's in limine motion to exclude comparable negligence from the jury and overruled plaintiff's motions for directed verdict at the conclusion of all the evidence. The jury found in favor of defendant and answered interrogatories finding plaintiff 51% negligent and defendant 49% 4 negligent. Plaintiff's motion for judgment notwithstanding the verdict and new trial were overruled and this timely appeal ensued. Plaintiff raises six assignment of error for our review. We will address the first five assignments of error together as they all turn on whether or not the comparative negligence issue should have been submitted to the jury, i.e., did plaintiff's negligence contribute in any manner to the accident. I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE TESTIMONY OF COMPARATIVE NEGLIGENCE BECAUSE AS A MATTER OF LAW THE ONLY QUESTION BEFORE THE JURY WAS WHETHER OR NOT DEFENDANT VIOLATED R.C. 4511.21(A). II. THE TRIAL COURT ERRED IN SUBMITTING THE ISSUE OF COMPARATIVE NEGLIGENCE TO THE JURY WHERE THE FACTS AND EVIDENCE FAILED TO RAISE THE ISSUE OF COMPARATIVE NEGLIGENCE FOR THE JURY. III. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR A DIRECTED VERDICT ON THE ISSUE OF DEFENDANT'S NEGLIGENCE BECAUSE REASONABLE MINDS COULD ONLY CONCLUDE THAT DEFENDANT VIOLATED R.C. 4511.21(A), WHICH CONSTITUTES NEGLIGENCE PER SE. IV. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, NEW TRIAL BECAUSE THE JURY FOUND DEFENDANT 49% NEGLIGENT AND THEREFORE IN VIOLATION OF R.C. 4511.21(A), WHICH CONSTITUTES NEGLIGENT [SIC] PER SE. V. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON R.C. 4511.66 (PROHIBITION AGAINST PARKING ON HIGHWAYS) BECAUSE STATUTE EXCEPTS DISABLED VEHICLES. Plaintiff contends the defendant violated the assured clear distance statute (R.C. 4511.21(A)) which constituted negligence per se,excluding any comparative negligence issue. Defendant contends assured clear distance did not apply if plaintiff swerved suddenly 5 into defendant's path and plaintiff was negligent in stopping or parking on a highway when it was practical to pull off on the berm in violation of R.C. 4511.66. We find there was sufficient evidence to submit the comparative negligence issue to the jury and the trial court did not err in doing so. Conflicting evidence was presented about plaintiff's driving. Plaintiff herself testified that her car came to a stop in the right hand lane while she was attempting to reach the next exit. She did not attempt to restart the car or drive it onto the berm. R.C. 4511.66, which prohibits parking or stopping on highways, provides: Upon any highway outside a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway if it is practicable to stop, park, or so leave such vehicle off the paved or main traveled part of said highway. In every event a clear and unobstructed portion of the highway opposite such standing vehicle shall be left for the free passage of other vehicles, and a clear view of such stopped vehicle shall be available from a distance of two hundred feet in each direction upon such highway. This section does not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving the disabled vehicle in such position. The statute does not apply to disabled vehicles. However, the exception only applies where it is impossible to avoid stopping and temporarily leaving the disabled vehicle on the highway. In this case, the plaintiff knew her engine was failing and losing 6 power. She could have pulled her vehicle onto the lighted berm, but chose to try to make it to the exit. Arguably, this conduct raised a violation of R.C. 4511.66 since it was not impossible for plaintiff to seek refuge on the berm and avoid the following traffic. The Ohio Supreme Court has strictly applied this statute in Smiddy v. The Wedding Party, Inc. (1988), 30 Ohio St.3d 35 syllabus: Summary judgment in favor of a person who has failed to comply with a specific highway safety statute may not be granted on the ground that compliance was impossible unless reasonable minds must conclude that there was no way by which that person could have complied. The Smiddycase involves a situation where defendant-appellant was driving a van on I-75, developed engine trouble, lost power and coasted to a stop in the second lane from left in the four lane highway. Plaintiff-appellee plowed into him from the rear and brought suit to recover for wrongful death. The Supreme Court held that summary judgment for defendant was not proper and stated at 38: Appellants argue that R.C. 4511.66 is inapplicable to the case sub judice because it was impossible to avoid stopping and temporarily leaving the disabled vehicle *** [on the traveled portion of highway]. Id. We think an issue of fact exists. Hesketh admitted in his deposition that other vehicles pulled out from behind him and went around the van as it was coasting to a stop. Construing the facts most strongly in appellee's favor, reasonable minds could conclude from this statement that Hesketh might have pulled his van off the traveled portion of the highway. 7 Therefore, we hold that the issue of whether R.C. 4511.66 applies to the case sub judice should not have been disposed of by summary judgment. See, also, Peoples v. Braun (May 29, 1992), Lake App. No. 90- L-15-183, unreported, wherein, on facts similar to the case at issue, the court of appeals affirmed the trial court's instruction to the jury on R.C. 4511.66 and stated as follows: A review of the jury instruction in the instant cause reveals that the jury was properly informed as to R.C. 4511.66, including the fact that appellant would not be considered negligent if it was impossible for her to avoid stopping and leaving her disabled vehicle on the paved or main traveled portion of the highway. The Ohio Supreme Court has held that whether the facts in a given case bring the driver of a disabled automobile within the exception to R.C. 4511.66 is a jury question. Purdy v. Kerentoff (1949), 152 Ohio St. 391. In the present case, there was ample evidence presented that raised a question of whether appellant's actions fell within the exception to R.C. 4511.66. Insana, who was following appellee's vehicle just prior to the accident, testified that there was only one car in his line of vision prior to the collision. Appellant herself testified that it would have been possible for her to move her vehicle off to the berm on the left of the highway because most of the traffic was passing her in the right hand lane. She also testified that, although it became difficult to steer the vehicle once the engine shut off, she coasted for at least a minute before applying her brakes and bringing her vehicle to a complete stop. For the foregoing reasons, the trial court properly instructed the jury on the provisions of R.C. 4511.66. It must also be pointed out that once again appellant failed to object to this jury instruction at the trial level. 8 There was also evidence presented from the independent witness, Brian Dumont, that plaintiff was weaving from lane to lane; that she was moving from the right lane to the left lane, which was defendant's lane of travel; and she was going very slow and was tough to avoid. (Tr. 109-111). This change of course on plaintiff's part would operate to exonerate defendant from a violation of the assured clear distance statute. As stated by the Supreme Court in Pond v. Leslein (1995), 72 Ohio St.3d 51, 52: R.C. 4511.21(A) states that no person shall drive any motor vehicle *** in an upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead. Ohio case law has consistently held that a person violates the assured clear distance ahead statute if there is evidence that the driver collided with an object which (1) was ahead of him in his path of travel, (2) was stationary or moving in the same direction as the driver, (3) did not suddenly appear in the driver's path, and (4) was reasonably discernible. Blair v. Goff-Kirby Co. (1976), 49 Ohio St.2d 5, 7, 3 O.O.3d 4, 5 358 N.E.2d 634, 636 (citing McFadden v. Elmer C. Breuer Transp. Co. [1952], 156 Ohio St. 430, 46 O.O. 354, 103 N.E.2d 385). See, also, Tomlinson v. Cincinnati (1983), 4 Ohio St.3d 66, 69, 4 OBR 155, 157, 446 N.E.2d 454, 456. Thus, a driver violates the statute as a matter of law if the party invoking the statute presents uncontroverted evidence establishing all of the elements necessary to constitute a statutory violation. The evidence in the instant case was not uncontroverted, i.e., that plaintiff was stopped and did not suddenly appear in the driver's path, if the testimony of Dumont was to be believed. The effect of this evidence, if believed by a jury, would be to demonstrate that [Beyer] departed [Joyce's] line of travel and 9 reentered it suddenly, thus providing a legal excuse for failing to maintain an assured clear distance ***. Pangle v. Joyce (1996), 76 Ohio St.3d 389, 391. Although the dissent herein finds fault with the trial court's instructions to the jury, a review of the transcript reveals that plaintiff failed to object at trial to the instruction on comparative negligence. (Tr. 178-80, 195-97). Plaintiff's counsel conceded as much but claimed that the comparative negligence issue and the charge of comparative negligence was objected to by way of our motion in limine. (Tr. 206). A denial of a motion in limine does not preserve error for review. A proper objection must be raised at trial to preserve error. State v. Brown (1988), 38 Ohio St.3d 305, syllabus. Defendant waived any objection to the court's charge by failing to object thereto before the jury retired. Civ.R. 51(A). In reviewing directed verdicts or the denial of same we do not weigh the evidence nor the credibility of the witnesses. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284-88. The same test for directed verdicts applies to motions j.n.o.v. Osler v. Lorain (1986), 28 Ohio St.3d 347, syllabus. In the case below, there was conflicting evidence presented regarding the location and movement of plaintiff's vehicle just prior to the collision. It is well settled that where there is conflicting evidence and reasonable minds could differ concerning any one of the elements necessary to constitute a violation of the [assured clear distance] statute, a 10 jury question exists with regard to that element. Pond v. Leslein (1995), 72 Ohio St.3d 50, 52. In the case below, it is unclear whether plaintiff's vehicle was moving or stationary at the time of the collision. There was also evidence that plaintiff weaved in front of defendant as he attempted to go around her slow moving vehicle. We must construe this evidence in favor of defendant. Under the standard we are required to apply, there was sufficient conflicting evidence as to the elements of the assured clear distance statute to support the trial court's decision to overrule plaintiff's motions for a directed verdict and j.n.o.v. There were two versions of the facts surrounding the accident presented by the evidence. It was for the jury to resolve the conflicting facts. Assignments of Error I, II, III, IV and V are overruled. 11 VI. VERDICT IS NOT SUPPORTED BY THE EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In determining whether a jury verdict is against the manifest weight of the evidence, this Court must presume that the jury's findings were correct. Judgments supported by some competent credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. Finally, if the evidence is susceptible of more than one construction, we must give it that interpretation which is consistent with the verdict and judgment most favorable to sustaining the trial court's verdict and judgment. Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 19. As previously noted, there was sufficient evidence calling into question plaintiff's own negligence in not trying to maneuver her car to the berm or in swerving into defendant's path. We can not say on this record that the verdict was against the manifest weight of the evidence or that the trial court abused its discretion in overruling the motion for a new trial. Obviously this case presented a close call for the jury, as their 51%/49% decision attested. It is for the jury to make such determinations when there is disputed evidence before them. We will not disturb their verdict. Assignment of Error VI is overruled. Judgment affirmed. 12 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 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. DYKE, J., CONCURS. ROCCO, J., DISSENTS. (SEE DISSENTING OPINION ATTACHED) JAMES M. PORTER PRESIDING JUDGE 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 of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. 112, Section 2(A)(1). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71828 STELLA FALCOSKI : : : Plaintiff-appellant : : : DISSENTING OPINION -vs- : ROBERT A. FISHER, JR. : Defendant-appellee : DATE OF ANNOUNCEMENT : NOVEMBER 13, 1997 OF DECISION ROCCO, J., DISSENTING: I respectfully dissent from the majority opinion since it fails to fully consider the facts and also confuses the central issue in this case. Appellant's motion for a directed verdict required the trial court to consider whether appellant, an elderly woman who experienced car engine trouble on an interstate highway at night, met her burden to prove appellee was negligent per se for his failure to comply with the assured clear distance ahead statute. Only when that issue is decided does the issue of appellant's comparative negligence, if any, arise. See, e.g., Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35 at 39- 40, upon which the majority opinion relies to support several of its conclusions. The majority opinion, since it concentrates initially on evidence of appellant's actions prior to the accident, 2 rather than upon appellee's actions, therefore has an improper focus. Moreover, it fails to adequately examine the actions of the trial court. 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 issue 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. (Emphasis added.) Regarding a motion for a directed verdict, the Ohio Supreme Court has stated as follows: When a motion for a directed verdict is entered, what is being tested is a question of law; that is, the legal sufficiency of the evidence to take the case to the jury. This does not involve weighing the evidence or trying the credibility of witnesses ***. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66 at 68, 69. (Emphasis added.) See, also, Eldridge v. Firestone Tire & Rubber Co. (1985), 24 Ohio App.3d 94; Brandenburger v. Hilti, Inc. (1989), 52 Ohio App.3d 21; Hutchinson v. Sun Refining & Marketing Co. (July 14, 1988), Cuyahoga App. No. 54140, unreported. Appellant's motion in limine made prior to trial was based upon her claim that appellee had violated R.C 4511.21(A) and thus was negligent per se. The majority opinion acknowledges appellant's motion was denied only after the trial court, and the jury, had heard all of the evidence. (Emphasis added.) This action, and a review of its consideration of appellant's motion for a directed verdict, demonstrates the trial court simply was 3 unwilling to fulfill its responsibility to apply Civ.R. 50(A) to determine if appellant presented uncontroverted evidence to demonstrate appellee violated R.C 4511.21(A). Pond v. Leslein (1995), 72 Ohio St.3d 51. The trial court's reluctance is understandable; ordinarily, in motor vehicle accident cases a trial court is disinclined to grant a motion for a directed verdict since the situation lends itself easily to an inadvertent consideration of the weight of the evidence. See, e.g., Crawford v. Halkovics (1982), 1 Ohio St.3d 184; Junge v. Brothers (1985), 16 Ohio St.3d 1; Ziegler v. Wendel Poultry Serv., Inc. (1993), 67 Ohio St.3d 10; Stutz v. LaForest, supra; Motorists Mut. Ins. Co. v. Rockwell (1990), 69 Ohio App.3d 159. However, circumstances exist in which the trial court is required to do so. This court should recognize that fact. Indeed, the supreme court has so stated in addressing the identical argument raised by appellant in this case. Pond v. Leslein, supra; Smiddy v. The Wedding Party, Inc., supra. See, also, Brown v. Jennings-Lawrence Co. (1958), 107 Ohio App. 409. A review of the record in this case reveals appellant sustained her burden to prove appellee violated R.C 4511.21(A). The fact that appellant's car was reasonably discernible was not disputed. Appellee stated the road was dimly lit and admitted he saw appellant's car ahead of him from approximately one hundred feet away. Lewis v. Certified Oil Co. (1981), 67 Ohio St.2d 277; Tomlinson v. Cincinnati (1983), 4 Ohio St.3d 66; cf., Sharp v. 4 Norfolk & W. Ry. Co. (1995), 72 Ohio St.3d 307; Estate of Eyler v. Dedominic (1995), 107 Ohio App.3d 860. The evidence also demonstrated appellant was ahead of appellee in his directional path of travel. Pallini v. Dankowoski (1969), 17 Ohio St.2d 51, paragraph one of the syllabus; cf., Pangle v. Joyce (1996), 76 Ohio St.3d 389; Siders v. Reynoldsburg School Dist. (1994), 99 Ohio App.3d 173. Appellant testified she was stopped in the southbound right lane after her car engine ceased functioning. Her testimony was corroborated by both appellee's statements and Officer Dalton's observations of the physical evidence left at the scene following the collision. Although appellee's witness Dumont testified he observed appellant's vehicle still moving slowly as appellee approached her, whether she was traveling or completely stopped is irrelevant to this issue, since she had been proceeding in the same direction as appellee in his directional line of travel. Appellee argues the evidence on this point was conflicting. He asserts his witness Brian Dumont's testimony indicates appellant altered her direction, i.e., that appellant swerved to the left. Thus, although at trial Dumont estimated appellant's speed at approximately only 20 miles per hour, appellee asserts appellant suddenly appeared in appellee's path. The majority opinion seizes on appellee's argument to state that since evidence on this point was not `uncontroverted,' Dumont's testimony exonerates appellant from the statute. I disagree. 5 All the evidence demonstrated both vehicles were southbound on the ramp. On cross-examination, appellee testified as follows: Q. Do you recall stating at your deposition, on deposition taken on June 10th, 1996, that you were about 100 to 120 feet away when you first become aware of Stella Falcoski's stopped vehicle? A. That was when the other car moved out of the way. Q. So is it the first time that you noticed your (sic) vehicle was when the other car moved out of the way? A. Right. Q. Okay. So was that your testimony that you were about 100 to 120 feet away? A. With the other car in front of me, yes. Q. I asked you a question, and I will Let me ask you this question again: How far away from the stopped vehicle were you when you first become (sic) aware of it, do you remember your answer? A. Yes, about 100, 120 feet. * * * Q. So you were following this car at a distance of 80 to 100 feet, and I put it at 100 feet here, is that accurate? A. Yes. Q. Stella's car, you first become aware of Stella's car at 100 to 120 feet? A. I believe so, yes. Q. And that was according to your testimony right after this car swerved around her vehicle? A. Right, because it was 20 feet away from the other vehicle. It was right there because that car barely missed it. 6 (Emphasis added.) Appellee testified that he shifted to the left in his attempt to avoid appellant. His testimony in this regard was corroborated by Officer Dalton's observations of the damage to the vehicles as a result of the accident. It should also be noted that Officer Dalton testified nobody at the scene told him appellant's car swerved suddenly and, further, that there was no evidence of that happening. The majority opinion also ignores the portion of Dalton's testimony where he stated that according to Brian Dumont's witness statement made at the scene, the vehicle Dumont saw swerving to the left was appellee's. Nevertheless,appellee's witness Dumont stated the following on direct examination: Q. Let's talk about, if we can, let's talk about Miss Falcoski's car, I think you have it in mind, the name of what the driver was now, and Mr. Fisher's car. Miss Falcoski's car, which lane was it in when you observed it? A. It was in the right lane, going into the left lane. Q. And was it moving or stopped when you saw it? A. It was moving, not It was approximately 20 miles per hour. Q. And it was moving from the right lane to the left lane, is that what you are saying? A. Correct. It didn't have a chance to make it completely into the left lane because it made contact with the green car. Q. Did any portion of Miss Falcoski's car get over into the left lane? 7 A. Yes. Q. And what did you observe with regard to what Mr. Fisher was doing with his vehicle? A. I just watched her. The maroon or burgundy vehicle, it started to go into that lane, and she was going very slow and was tough to avoid. The first car, which was the black Eagle Talon, whipped around. It made it by the skin of his teeth. And the second vehicle didn't. And the green vehicle collided with the maroon or burgundy vehicle that was in his lane, and he collided with that and shot off into the guardrail on the left-hand side. (Emphasis added.) From the foregoing and the testimony of the other witnesses, it is clear that appellant did not suddenly appear in appellee's lane. Even construing the evidence most strongly in appellee's favor, reasonable minds could conclude only that if appellant's vehicle, which at most was moving slowly, had started to weave left, appellee himself had also shifted left by that time, therefore, the two vehicles remained in the same directional path of travel. This conclusion is compelled by Dumont's statement that, even from his vantage point on I-77 (while traveling at the speed limit on an overpass with a continuous concrete guardrail set at a driver's eye level), he observed appellant was in appellee's lane but appellant could not stop in time to avoid colliding with her. This is precisely the situation to which R.C. 4511.21(A) was intended to apply: motorists are to travel at a speed which permits them to stop when an object is in front of them in their 8 directional path of travel, rather than at a speed which merely permits them to take timely evasive action. R.C. 4511.21(A) does not create merely a duty to dodge. The situation in this case is thus distinguishable from that considered by the Ohio Supreme Court in Pangle v. Joyce, supra, upon which the majority opinion relies. In Pangle, the defendant's evidence, if believed, indicated the plaintiff's vehicle departed from the directional path of travel and then suddenly reentered it from an entirely different direction. Appellant in this case was either completely stopped in appellee's lane or, if Dumont's testimony is considered, traveling so slowly that she remained in appellee's directional path of travel when he shifted to try to avoid her. Reasonable minds could conclude only that appellee did not maintain an assured clear distance ahead as required by R.C. 4511.21(A). Under these circumstances, appellant established all the elements necessary to constitute appellee's violation of R.C. 4511.21(A). Pond v. Leslein, supra; Lewis v. Certified Oil Co., supra; see, also, Cook v. Lammers Barrell Corp. (1961), 116 Ohio App. 326. Therefore, the trial court erred when it failed to direct a verdict in appellant's favor on the issue of appellee's liability for the collision, since violation of R.C 4511.21(A) constitutes negligence per se. Smiddy v. The Wedding Part, Inc., supra; Skinner v. Pennsylvania R.R. Co. (1933), 127 Ohio St. 69; Blair v. Goff-Kirby Co. (1976), 49 Ohio St.2d 5; Tomlinson v. 9 Cincinnati, supra. Appellant's second, third and fourth assignments of error should accordingly be sustained. My preferred disposition of the foregoing assignments of error would render appellant's remaining ones moot. App.R.12(A)(1)(c). However, the majority opinion addresses appellant's fifth assignment of error and determines it is meritless. I also disagree with this aspect of the decision. The Ohio Supreme Court in Pond v. Leslein, supra indicated that after the trial court determines a defendant's negligence as a matter of law, only then does the issue of the plaintiff's comparative negligence arise for the jury to consider. See, also, Smiddy v. The Wedding Party, Inc., supra; Merchant's Mut. Ins. Co. v. Baker (1984), 15 Ohio St.3d 316. It is axiomatic that, in order for the jury system to function properly, the jury's consideration of the facts presented in a case must be based upon a complete instruction of the applicable law. See, e.g., Smith v. Justarr, Inc. (1995), 102 Ohio App. 506. Clearly, the trial court in this case failed to instruct the jury completely, thus undermining any confidence in its verdict. See, e.g., Goldfuss v. Davidson (1997), 79 Ohio St.3d 116. As the majority opinion states, R.C 4511.66, which at trial appellee raised as a defense to appellant's claim, contains two paragraphs. The majority opinion also concedes that the second paragraph indicates disabled vehicles are excepted from the application of the statute. The majority then proceeds to condone the trial court's instruction to the jury of only the first 10 paragraph of R. C. 4511.66. It does so despite the existence of evidence that raised the probability that appellant's vehicle was disabled. Appellant testified her car continued to function after the first episode of engine trouble. She testified she was concerned, however, so she intended to exit at the earliest opportunity, a normal reaction for an elderly woman alone at night traveling upon an interstate highway in an undeveloped area. Appellant further testified after she boarded the ramp and proceeded uphill, the engine simply stopped dead. At this point, her car began to decelerate. Significantly, appellant testified that as her engine stopped, her steering wheel was no longer functioning. Thus, appellant stated that although she lit her hazard lights, she was unable to move from the right lane onto the berm of the roadway. Officer Dalton's observations made at the scene after the accident, and his testimony at trial, corroborated appellant's statements. As the Ohio Supreme Court indicated in Smiddy v. The Wedding Party, Inc., supra at 38, upon which the majority opinion relies, unlike R.C 4511.21(A), R.C 4511.66 does not provide for an absolute prohibition against stopping *** on the traveled portion of a highway. (Emphasis added.) Rather, negligence does not automatically follow. In quoting Smiddy, the majority opinion impliedly acknowledges it contains facts analogous to the facts of the case sub judice. The majority opinion, however, fails to apply Smiddy's holdings. 11 The supreme court found the driver who plowed into the defendant in Smiddywasnegligent per se for his failure to comply with R.C. 4511.21(A). Additionally, the supreme court indicated that for the jury to then properly consider whether the defendant also was negligent for his failure to comply with R.C. 4511.66, the jury must be informed of the complete text of that statute. The jury in this case, however, was not so instructed. Thus, it could improperly conclude, as it apparently did, that appellant was negligent per se for her failure to comply with an absolute safety statute. This result is therefore contrary to the decisions upon which the majority opinion relies to support its position. The trial court was required to provide for the jury in this case the complete text of R.C 4511.66, rather than merely the portion favorable to appellee's defense. See, e.g., Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585. Since it failed to do so, and its failure constitutes plain error in the context of this case, I would sustain appellant's fifth assignment of error. Civ. R. 59(A)(9); cf., Goldfuss v. Davidson, supra. In stating this, I remain mindful of the majority opinion's conclusory statement that appellant did not object to the trial court's jury instructions. This is purely conjecture; a review of the transcript reveals that portion of the trial is not included due to computer and printer malfunctions. It is also conjecture to assume that the jury based its allocation of negligence on appropriate legal principles. 12 The issues raised in this case were neither adequately addressed nor thoroughly considered. Based upon the errors .