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Leach v. Dayton11/9/1994
ehicles there were clearly discernible and required no devices to warn the public that they were parked in front of the school.
In this case, the front-end loader had been parked at the location where the accident occurred, but prior thereto it had failed to start and had been left there because it could not be moved. Reasonable minds could conclude that the front-end loader had been abandoned when the collision occurred. "A vehicle blocking a road or sidewalk may also constitute a nuisance if it has been abandoned and left on a public highway. Walder v. Dayton (June 10, 1991), Montgomery App. No. 12274, unreported, 1991 WL 108734.
We conclude from the facts in the case before us that reasonable minds could conclude that Dayton failed in its duty to keep the southbound curb lane of Wayne Avenue open or free from nuisance during the evening of July 29, 1990.
The third assignment of error is sustained.
In her last two assignments of error the plaintiff complains that the trial court would not permit two of her expert witnesses to testify. The assignments of error state:
"The trial court erred in determining that opinion testimony by plaintiffs accident reconstruction expert regarding the speed of Carl Leach's motorcycle was inadmissible.
"The trial court erred in not permitting plaintiffs expert witness regarding nighttime visibility to offer any opinions in this case."
In our view the fourth and fifth assignments of error are made moot by our ruling on the third assignment of error. App.R. 12(A)(1)(c). The last two assignments of error are overruled.
We reverse and remand for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
GRADY, P.J., and WOLFF, J., concur.
RICHARD K. WILSON, J., retired, of the Second Appellate District, sitting by assignment. |