187 N.E.2d 27
No. 37386Supreme Court of Ohio.
Decided December 26, 1962.
Court procedure — Motion for directed verdict or judgment — Made by defendant at close of plaintiff’s evidence — Overruled, when — Negligence — Watercraft.
APPEAL from the Court of Appeals for Hamilton County.
This is an action for wrongful death.
The plaintiff, administratrix of the estate of Wayne D. Allan, deceased, filed a petition in the Common Pleas Court of Hamilton County, alleging that the decedent was in a motorboat owned and operated by the defendant, and that, while the boat was cruising on the Ohio river and defendant was operating the boat under his complete and exclusive control, the boat made a sudden and violent turn, which turn caused the decedent to be thrown overboard into the river and caused the injuries from which decedent died.
The plaintiff alleges further that the defendant was negligent in operating the motorboat in a careless, reckless and negligent manner without due regard for the safety of decedent, in failing to have the motorboat under proper control, and in permitting the motor boat to deviate from its straight course in making a sudden and violent turn.
The plaintiff’s evidence disclosed that the plaintiff’s decedent was a passenger in a boat operated by the defendant on a nice day when there were no unusual river conditions, and that, with the defendant at the controls and the boat running downstream on a straight course in the middle of the channel, at a place where the water was over 60 feet deep, the boat, suddenly and for no apparent reason, made a very sudden and abrupt turn to the left, throwing up a wall of water 25 feet into the air and, as a result, the decedent was catapulted out of the boat and drowned.
At the conclusion of plaintiff’s case, the defendant moved for a directed verdict or, in the alternative, for the court to
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withdraw the evidence from the jury and render judgment for the defendant. The court sustained the motion to withdraw the evidence from the jury and rendered judgment for the defendant.
The court overruled plaintiff’s motion for a new trial, and, upon appeal, the Court of Appeals affirmed the judgment of the Common Pleas Court.
This cause is before this court upon the allowance of a motion to certify the record.
Mr. Peter W. Swenty and Mr. William H. Ruger, for appellant.
Messrs. McIntosh McIntosh, for appellee.
Per Curiam.
Plaintiff contends that the sole issue in the case is the application of the doctrine of res ipsa loquitur and argues that this rule, which has been applied to auto, train and airplane accidents, should, when the essential elements of the doctrine are present, be applied to boating accidents.
In answer to this contention, the defendant takes the position that the doctrine of res ipsa loquitur should not apply to this boating accident for the reason that he was not in exclusive control of the boat because the medium (the river) controlled, to a larger degree, the operation of the boat.
It is not necessary for the court to determine this question.
This court is of the opinion that the plaintiff, in her petition, pleads negligence on the part of the defendant, and that it can be reasonably said that the allegations of negligence are supported by evidence tending to prove the alleged specifications of negligence. The evidence, when construed most strongly in favor of the plaintiff, is such that reasonable minds may reasonably reach different conclusions or draw different inferences therefrom. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St. 469, 189 N.E. 246; Durbin v. Humphrey Co., 133 Ohio St. 367, 14 N.E.2d 5.
Upon the allegations of the petition and the evidence in the record, the Common Pleas Court was in error in rendering judgment for the defendant.
The judgment of the Court of Appeals is reversed and
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the cause remanded to the Common Pleas Court for further proceedings.
Judgment reversed and cause remanded.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, CRAWFORD, O’NEILL and GRIFFITH, JJ., concur.
CRAWFORD, J., of the Second Appellate District, sitting by designation in the place and stead of HERBERT, J.