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Hores v. Weaver11/10/2005
ence to the determination of the action more probable or less probable than it would be without the evidence." Evid.R. 401 (emphasis added). Generally, "relevant evidence is admissible, unless some other provision of law makes it inadmissible." State v. DeRose, 11th Dist. No. 2000-L-076, 2002-Ohio-4357, at ; Evid.R. 402.
{ } Material evidence is defined as evidence that is "relevant and goes to substantial matters in the dispute, or has a legitimate and effective influence or bearing on the decision of the case." Blacks Law Dictionary (4th Ed. 1968), 1128.
{ } Both parties offered testimony relating to the issue of whether or not Weaver's four-way flashers were operating at the time of the collision, which both parties agree is required by law when operating a truck at low speed on the Pennsylvania Turnpike. Thus, both parties agree this issue is relevant to determining whether Weaver was negligent per se. As such, Brooks' testimony that he did not observe Weaver's front flashers operating at the time of the accident creates a reasonable inference that Weaver was negligent, since common understanding of the term four-way flashers means that two of the lights can be seen from the front, and two can be seen from the back of the vehicle if they were operating. Although the issue of whether Weaver was negligent per se is relevant, it is not necessarily dispositive of the case. See Merchants Mut. Ins. Co. v. Baker (1984), 15 Ohio St.3d 316, 318 ("Negligence per se does not equal liability per se. Simply because the law may presume negligence from a person's violation of a statute or rule does not mean that the law presumes that such negligence was the proximate cause of the harm inflicted.")
{ } However, even in the absence of a finding of negligence per se, liability may nevertheless be determined "by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case." Steele v. McNatt (1995), 102 Ohio App.3d 558. 563, quoting Eisenhuth v. Moneyhon (1954), 161 Ohio St.3d 367, at paragraph three of the syllabus (emphasis sic). Evidence of whether Brooks saw lights on the front of Weaver's truck would also be relevant to the issue of whether Weaver exercised ordinary care. "What is ordinary care what is reasonable safety, * are * questions for the determination of the jury." Gibbs v. Girard (1913), 88 Ohio St. 34, at paragraph four of the syllabus.
{ } Brooks' testimony relating to the headlights and four-way blinkers would also be relevant to a determination of proximate cause. See Gallagher v. Cooper (1984), 14 Ohio St.3d 41, 43. ("Proximate cause and negligence are not complete and independent issues.") Weaver makes much of the fact that Brooks testified repeatedly that he did not see Weaver's truck until after the collision and subsequent fire, but this testimony is entirely consistent with Brooks' proffered testimony that he only saw one set of headlights, those belonging to Hores' truck, prior to the collision.
{ } In terms of "material" inconsistencies, Weaver points to inconsistencies in Brooks' prior testimony related to whether Weaver was traveling in the right-hand lane at the time of the collision or if Weaver pulled out in front of front of Hores' truck. Our review of the record indicates that there are arguably significant discrepancies related to these issues. However, while this testimony is unquestionably relevant to the third element of Hores' negligence claim based on assured clear distance, Hores did not proffer this testimony at the time of objection. Accordingly, we need not review this issue. Collins,65 Ohio App.3d at 446. We note, however, that had Hores proffered this testimony, We
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