It is undisputed in evidence that the collision upon which this appeal is based took place during the hours of darkness in the eastbound lane of U.S. Route No. 30S east of Marion, Ohio; that as the plaintiff, Cerny, appellant herein, driving east in that lane, topped the crest of a hill he saw the taillights of the eighteen-foot truck of defendant, Domer, appellee herein, clearly visible in his lane of travel in the road ahead of him; that there was no obstruction to his vision and that he continued to see, or could continue to see, such taillights until immediately before the collision; that the distance from the crest of the hill to the point of collision was at least 700 feet; that from the time when plaintiff sighted defendant's taillights until the moment of the collision the defendant drove his truck east on the highway in the plaintiff's lane of travel at a speed of 35 to 40 miles per hour, slowed down to 5 miles per hour, then to a stop, with the rear end of the truck approximately twelve feet past the east side of a private driveway extending southerly from the south edge of the highway, and then, with only a second's pause, proceeded to back into the driveway and was partially into the driveway with the front end of the truck "approximately 3 to 5 feet on the road at an angle" when the plaintiff's car collided with the left front of the truck; and that from the time the plaintiff sighted the defendant's taillights until plaintiff was two car lengths from defendant's truck, at which time he first became aware that the defendant was backing, the plaintiff did not reduce his speed below the 40 to 50 miles per hour at which he had been traveling.
On this state of facts, and without regard to defendant's negligence, if any, the issue presented by the direction of a verdict for defendant at the close of the plaintiff's evidence *Page 3 is whether the plaintiff, as a matter of law, was guilty of a violation of the assured-clear-distance-ahead statute contributing to proximately cause the collision. This statutory rule is stated in Section 4511.21, Revised Code, as follows:
"* * * no person shall drive any motor vehicle * * * in and 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."
There is no question that, on the other facts here, had the defendant brought his truck to an abrupt stop in the highway and then remained stationary the plaintiff would have been guilty of negligence per se in colliding with him. The distinction here, if there is one, is that the defendant, after stopping, was backing in the same lane of travel toward a driveway to the right side of the highway.
One of the earliest cases respecting the assured-clear-distance-ahead rule is that of Gumley v.Cowman (1934), 129 Ohio St. 36, wherein the court held:
"2. The present legislative requirement establishes a subjective test whereby a driver is prohibited from operating any motor vehicle in and upon any public road or highway at a rate of speed greater than will permit him to bring it to a stopwithin the distance at which he can see a discernible objectobstructing his path." (Emphasis added.)
In the case of Hangen v. Hadfield (1939), 135 Ohio St. 281, the Supreme Court held:
"2. A driver who has failed to comply with these provisions of Section 12603, General Code, may excuse such failure and avoid the legal imputation of negligence per se by establishing that,without his fault, and because of circumstances over which hehad no control, compliance with the law was rendered impossible. * * *
"3. These provisions of Section 12603, General Code, do not require the driver of a motor vehicle approaching the crest of ahill on a public highway to anticipate that his proper path will be obstructed by another automobile driven in the opposite direction in a manner contrary to law." (Emphasis added.)
In the case of Smiley v. Arrow Spring Bed Co. (1941),138 Ohio St. 81, 133 A. L. R. 960, the Supreme Court held:
"1. Section 12603, General Code, is a safety measure which, *Page 4 to accomplish its purpose, must be applied according to its clearand unambiguous language.
"2. To comply with the assured-clear-distance-ahead provision of Section 12603, General Code, the driver of a motor vehicle must not operate it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicleand a discernible object obstructing his path or line of travel, unless such assured clear distance ahead is, without his fault,suddenly cut down or lessened by the entrance, within such clear distance ahead and into his path or line of travel, of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith." (Emphasis added.)
In the case of Bickel v. American Can Co. (1950), 154 Ohio St. 380, the Supreme Court held that under the assured-clear-distance-ahead rule "there is no distinction to be made with reference to a discernible object within the assured clear distance, based upon whether that object is moving at a normal speed, a slow speed, or is static."
The Supreme Court has never specifically passed on the application of the assured-clear-distance-ahead rule to a backing car in the same lane of travel. However, in an analogous situation, a road grader moving slowly toward the person charged with the duty of adhering to the rule and in his lane of travel, the Court of Appeals for Summit County, in Carpenter v.McCourt Construction Co. (1957), 106 Ohio App. 67, held the trial court should have granted a motion for judgment for the defendant made at the close of all the evidence, because the grader was located ahead of the plaintiff in his lane of travel, was reasonably discernible since he saw it 150 to 200 feet ahead of him, and "at the time he first saw the grader he could have stopped his motorcycle before colliding therewith." The Supreme Court overruled a motion to certify, in No. 35224, October 9, 1957.
Here the defendant's truck was located ahead of the plaintiff in his lane of travel at all times here pertinent, it was discernible because the plaintiff saw its taillights from the moment he topped the crest of the hill until the point of the collision at least 700 feet away, and there is no question that plaintiff could have stopped his car within that 700 feet distance before colliding with the defendant's truck. This case is distinguishable *Page 5 from that of Hangen v. Hadfield, 135 Ohio St. 281, becauseanticipation is not here involved. Here the defendant's truck was plainly visible for a distance ahead fully sufficient to permit the plaintiff to stop his vehicle before colliding with defendant.
The rule of the statute, that "no person shall drive any motor vehicle * * * in and 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," was literally applicable to plaintiff, and he did not comply with that rule, making him negligent per se. To excuse such failure and avoid the legal imputation of negligence the burden was upon plaintiff, and not upon defendant, to establish that the assured clear distance ahead was, without his fault, suddenly cut down or lessened bythe entrance, within such clear distance ahead and into his pathor line of travel, of some obstruction which rendered him unable, in the exercise of ordinary care, to avoid colliding therewith.Smiley v. The Arrow Spring Bed Co., 138 Ohio St. 81; Lehman v.Haynam (1956), 164 Ohio St. 595; Masterana v. Cashner (1959),114 Ohio App. 379. Defendant here was always in the plaintiff's path or line of travel. By backing a distance of about 30 feet (the length of his truck plus the distance from the rear thereof to the east edge of the driveway) plaintiff's assured clear distance ahead was not suddenly cut down or lessened by defendant's action. Plaintiff was closing on defendant at the rate of at least 40 miles per hour, or at the rate of 58.66 feet per second, and made no attempt in the approximately 11 to 12 seconds in which it would take him to move 700 feet to stop or even to slow down until within two car lengths of defendant's vehicle. Plaintiff was not without fault. Plaintiff has failed to submit any evidence of probative value excusing his failure to comply with the statute.
The direction of the verdict for the defendant at the close of plaintiff's evidence was proper, and the judgment of the Common Pleas Court is affirmed.
Judgment affirmed.
MIDDLETON, J., concurs. *Page 6