As the plaintiff was the only person present at the instant his automobile collided with the defendant's trailer, the proof of the circumstances of that collision rests entirely on his testimony. Whether an issue of fact was presented also rests upon the same foundation. *Page 63
The trial court held that an issue of fact determining liability was presented, and submitted the issues to the jury.
The jury resolved the issues in favor of the plaintiff and returned a verdict of $45,000 in his favor, upon which judgment was entered. It is from that judgment that this appeal on questions of law is taken.
At various stages of the proceedings in the trial court and in the appropriate ways, the defendant, appellant herein, raised the question of the legal sufficiency of the plaintiff's evidence and all the evidence for submission to the jury and to sustain the verdict and judgment. The trial court overruled all defendant's motions, and the claim that error was committed in so doing is the principal ground urged on this appeal for the reversal of the judgment. However, two specific alleged errors are pointed out, which, it is claimed, necessitate a reversal of the judgment and a remand for a new trial, even assuming that it should be determined that the evidence is sufficient to carry the case to the jury. We shall consider these claims of error before passing to a consideration of the assertion that the evidence shows as a matter of law that no liability exists.
1. On cross-examination of the plaintiff, he was asked this question:
"So when you say that the equipment of the defendant was 65 or 75 feet in front of you when the other car left your lane of traffic you didn't have your car under such control that you could stop within the assured clear distance ahead?"
The court sustained an objection to this question.
The distance of 65 to 75 feet was the distance between plaintiff's automobile and defendant's trailer when the third automobile ceased to obstruct the plaintiff's vision so that he was able to see defendant's trailer. The plaintiff's case depended on his ability *Page 64 to avoid the collision after he saw the trailer, and he had testified fully on both direct and cross-examination on that subject. There was no occasion to have recourse to a hypothetical assured clear distance ahead. Without stopping to consider the form of the question and whether it would be competent in other circumstances, we conclude that, in view of the plaintiff's very full testimony directed to the circumstances, as they existed according to his testimony, no possible prejudice could have resulted to the defendant because of this ruling.
2. It is urged that the verdict is excessive.
The plaintiff is a physician and surgeon and was 59 years of age at the time he was injured. He had graduated from medical school in 1920 and had practiced since then in Cincinnati, and, at the time of this occurrence, derived an income in excess of $20,000 annually from his practice. According to the evidence, his injuries had rendered him incapable of pursuing his profession, which incapacity will continue for the remainder of his life, resulting in the entire loss of his income from the pursuit of his profession. There was evidence of other loss in addition to the physical injuries, including pain and suffering.
The judgment is large in amount, but we are unable to say that it is excessive.
3. We come now to the assigned error upon which the defendant places the most emphasis, that is, that the plaintiff's own testimony shows that he was operating his automobile at a speed greater than would permit him to stop it within the assured clear distance ahead, in violation of Section 6307-21, General Code, and, that, therefore, plaintiff's testimony shows that he was guilty of contributory negligence as a matter of law.
In order to determine the validity of this claim, it is necessary to consider the plaintiff's testimony. *Page 65
The plaintiff testified that at about midnight on December 3, 1950, he left his country home near New Richmond in his automobile, destined for his home in Cincinnati. He was unaccompanied. He was proceeding westwardly on the north side of U.S. route 52, which at the point of this collision is 22 feet wide. He had proceeded less than two miles and there was apparently no traffic to the west of him as he approached a point in route 52 where its south edge is intersected by Palestine road and the north edge by Iglauer's drive, when suddenly the lights of an automobile appeared 250 to 300 feet westwardly and diagonally across his lane of travel. Whether any part of this automobile was in plaintiff's lane of travel when he first became aware of its proximity, or whether only the beam from its lights was in such lane of travel is not clear. At any rate, the automobile was in his lane of travel almost at once. At that time the plaintiff was traveling 45 miles per hour, but when he saw the automobile lights diagonally across his path, he pressed on the brake and slowed down to 35 miles per hour or less. The automobile lights changed from a diagonal position to a position straight down the plaintiff's path, headed directly toward him. The plaintiff testified that he could have stopped his automobile going at 35 or 45 miles per hour before it would have reached the location of this third automobile, but that if the third automobile continued toward him down his path, there would have been a head-on collision notwithstanding; so instead of stopping or slowing down, he swerved his automobile about five feet to his right, hoping thereby to avoid the collision at the risk of being obliged to steer his automobile onto the berm and possibly into the ditch on his right side of the road. In so doing he kept his gaze upon the edge of the road and thereby avoided being blinded by the lights of the oncoming automobile. It so happened that *Page 66 the operator of the third automobile, just before reaching the plaintiff's automobile, suddenly veered to his right, and the two automobiles passed each other without contact. The third automobile continued down the highway, and the identity of the operator has not been discovered.
It is manifest that this untoward incident created an emergency containing elements of imminent peril, and that while it continued the plaintiff was completely preoccupied in attempting to avoid the peril.
As soon as the plaintiff passed this automobile which he had barely avoided, and which had obstructed his forward view, he was immediately confronted with the defendant's unlighted trailer-truck, 65 to 75 feet ahead of him, parked on the north edge of the highway and extending about five feet into his lane of travel, which truck he then saw for the first time. He had his foot on the brake and turned as far as he could to the left in an effort to avoid colliding with the truck, but was unable to do so.
We believe the foregoing is a fair summary of the essential facts to which the plaintiff testified. His credibility rested with the jury. It saw fit to believe him, and there is nothing in the record that would justify this court in disturbing the jury's conclusion.
That the defendant was negligent is not seriously disputed. There were no lights of any sort upon its truck at the time. There were no flares or fusees in the highway. The truck was unattended. The gasoline had been exhausted, and the operator had gone back to New Richmond to replenish it.
The defendant's contention is that the plaintiff violated Section 6307-21, General Code, in that he operated his automobile at a speed greater than would permit him to stop it within the assured clear distance ahead.
On the other hand, the plaintiff contends that, at the *Page 67 inception of this incident, he could have stopped his automobile within the assured clear distance ahead; that the sudden and unexpected entry of the automobile going in the opposite direction into the assured clear distance, the emergency which it created, and his preoccupation in avoiding colliding with it made it impossible for him to see the defendant's truck until the intervening automobile passed; and that then he was so close to the truck that it was impossible to avoid colliding with it.
We have examined the cases in which Section 6307-21, General Code, has been construed and applied. All of them recognize that a sudden and unexpected intervention of a new agency within the assured clear distance ahead affects the application of the statute and may relieve the plaintiff from the charge of negligence per se in colliding with another object in the highway.
In the procession of cases in which the statute has been construed, the rule has been stated, restated and refined as varying circumstances have pointed out the desirability of a more comprehensive definition. Perhaps the latest definition is found stated in negative form in the syllabus of the case ofMcFadden, Admx., v. Elmer C. Breuer Transportation Co., 156 Ohio St. 430, 103 N.E.2d 385, as follows:
"The question of whether the operator of a motor vehicle was negligent in failing to comply with the `assured-clear-distance-ahead' rule contained in Section 6307-21, General Code, is not presented to the trier of the facts where there is no substantial evidence (1) that the object with which such operator collided was located ahead of him in his lane of travel, and (2) that such object was reasonably discernible, and (3) that the object was (a) static or stationary, or (b) moving ahead of him in the same direction as such operator, or (c) came into his lane of travel within the *Page 68 assured clear distance ahead at a point sufficiently distant ahead of him to have made it possible, in the exercise of ordinary care, to bring his vehicle to a stop and avoid a collision."
As stated in the second paragraph of the syllabus ofErdman v. Mestrovich, 155 Ohio St. 85, 97 N.E.2d 674, the rule of the statute is:
"Violation of the assured-clear-distance-ahead rule consists of the operation of a motor vehicle at a greater speed than will permit the operator thereof to bring it to a stop within the assured clear distance ahead, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance within such clear distance and into his path or lane of travel of an obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith."
Applying the rule announced in these cases to the evidence in the case at bar causes us to reach the conclusion that an issue of fact, and not of law, is presented as to plaintiff's conduct and required submission of such issue to the jury for its determination.
We think it is conclusively established that a motorist can free himself of a charge of violation of the statute and of negligence per se in colliding with an object ahead of him in the highway by proof that, without his fault, a sudden, unexpected situation developed that could not be anticipated by the exercise of reasonable foresight, and by reason thereof his assured clear distance ahead was lessened and that before he could extricate himself from such situation, and because thereof, he collided with the object ahead. Having thereby freed himself of the charge of negligence per se, he is entitled to recover, or, at least, to have the issue of fact resolved, provided he also prove that the defendant was negligent, about which, in the *Page 69 case at bar, there could be no doubt if the jury believed the plaintiff.
In Matz, Admr., v. J. L. Curtis Cartage Co., 132 Ohio St. 271, 7 N.E.2d 220, it was held, as stated in the syllabus, that:
"The driver of a motor vehicle, who, after nightfall, without his fault, is forced, by an oncoming automobile, to the side of the highway and into an unlighted parked truck, with which otherwise he would not have collided, cannot be said as a matter of law to be guilty of violating the `assured clear distance' provision of Section 12603, General Code. (Paragraph three of the syllabus in Kormos v. Cleveland Retail Credit Men's Co.,131 Ohio St. 471, approved and followed.)
"Section 614-86, General Code, applies only to motor transportation companies and does not confer upon the Public Utilities Commission power to regulate the use of public highways by the general public."
An examination of the printed record in the Matz case discloses that in all essentials the facts are indistinguishable from those in the case at bar. Defendant's counsel point out that in the Matz case the intervening automobile was only 20 to 25 feet away when it came into the lane in which Matz was driving, thereby requiring Matz to turn abruptly; that the lights from the intervening automobile did not interfere with Matz's view ahead; that it required 20 to 25 feet for Matz to stop his automobile at the speed at which he was going; and that he was so close to the defendant's unlighted truck, parked near the curb to his right, that he was unable to avoid colliding with it. He admits, as he must, that evidence of those facts presented a case for submission to the jury, but contends that the evidence in the case at bar does not. Let us compare the evidence in the two cases.
It is true that the automobile that intervened and *Page 70 cut down the plaintiff's assured clear distance ahead was 250 to 300 feet from him when the plaintiff first saw the rays of light diagonally across his lane of travel, but the plaintiff could not anticipate at that time that the operator of that automobile would enter his lane of travel and proceed straight down it toward him until a collision was barely avoided by each turning to his right. While there is no estimate in feet of how close the two automobiles were to each other when the intervening automobile left the plaintiff's lane of travel, it is fairly to be inferred that they were very close and perhaps less than 20 to 25 feet apart. But, assuming that the distance was greater, the plaintiff, operating his automobile at a speed that would permit him to stop it within the assured clear distance, had a right to concern himself with the only peril of which he was aware. In doing so he was acting in an emergency which had suddenly cut down his assured clear distance and made it impossible for him to see the defendant's truck because of the obstruction.
Counsel point out that Matz's view ahead was not obstructed, whereas the plaintiff's view was obstructed by the lights. Counsel is mistaken when he says the lights obstructed the plaintiff's view. He testified that it was the body of the automobile that obstructed his view and that he was not blinded by the headlights because his sight was focused on the edge of the highway toward which he was turning and toward which he was required to turn in order to avoid the approaching automobile. If the Matz case and the case at bar differ in this respect, it would seem to us that the evidence in the case at bar presents valid reasons for the plaintiff not knowing of the presence of defendant's unlighted truck and, therefore, that he had no reason to regulate his conduct on an assumption that it was present, whereas, Matz, knowing or being charged with the *Page 71 duty of knowing, should have taken it into consideration.
As to the difference in distance from the parked truck when the intervening obstruction was removed and the plaintiff became aware of the parked truck in his lane of travel, we think its only significance is its bearing on whether the plaintiff could have avoided colliding with the truck by the exercise of reasonable care. The plaintiff testified that he was unable to bring his automobile to a stop within the distance or avoid the truck by turning. Our attention has been called to no countervailing evidence. Certainly, this evidence presented an issue of fact as to whether the plaintiff had exercised reasonable care to avoid the collision after the emergency had ended and he had become aware of the defendant's unlighted truck in his path.
Counsel point out also that in the case at bar the plaintiff chose to continue on at 35 miles per hour for nearly 200 feet and turn to his right to avoid the collision, whereas Matz had no choice. While we do not think it mattered, the Matz record does not bear this out. Matz was not necessarily required by the situation to come into collision with the defendant's automobile. As the facts disclosed, he veered farther to the right than was necessary in order to avoid the oncoming automobile, and one of his contentions was that if the truck had had lights on it, he would have seen it and would not have veered so far to the right. In the case at bar the plaintiff testified that he weighed two alternatives, namely, to stop in his lane of travel or to turn to his right, and concluded that as the oncoming automobile was proceeding directly toward him in his lane of travel, turning out was to be preferred to stopping. Whether his decision was such as would have been made after deliberation may be debatable, but the *Page 72 law does not hold a person to such a standard where choices are required to be made instantly in the presence of a sudden emergency.
On the whole case, we conclude that the evidence presented issues of fact to be submitted to the jury, and that they were presented fairly under instructions free from error.
For these reasons, the judgment is affirmed.
Judgment affirmed.
MATTHEWS, P. J., and HILDEBRANT, J., concur.