This case presents an appeal on questions of law from a judgment of the Common Pleas Court of Hamilton County in favor of the plaintiff, entered upon a verdict awarding the plaintiff $45,000 as compensation for personal injuries received by him when an automobile driven by him collided with a truck operated by defendant.
As the writer views the appeal and record of the trial court, only two alternatives are presented, either to affirm the judgment or render final judgment for the defendant in pursuance of appropriate action taken by the defendant in the trial court. All assignments of error predicated upon grounds other than the claim that the trial court should have rendered judgment in favor of defendant are resolved in favor of the plaintiff. Such assignments of error have been considered fully in reaching such conclusion.
The defendant's assertion that it is entitled to final judgment here is predicated upon its claim that the plaintiff was guilty of negligence as a matter of law in violating Section 6307-21, General Code, by driving his automobile at a speed greater than would permit him to stop within the assured clear distance ahead. *Page 73 The burden of proof to establish such contention was on the defendant.
The plaintiff relied upon the existence of an intervening cause excusing compliance with the statute. The duty to show such excuse rests on the plaintiff.
In determining whether the defendant is entitled to final judgment, the testimony of the plaintiff given at the trial constitutes a controlling consideration in that if statements made at that time show that he is not entitled to recover, final judgment against him is required, regardless of any other evidence which may be in his favor. Winkler v. City ofColumbus, 149 Ohio St. 39, 77 N.E.2d 461. The evidence of what happened immediately prior to and at the time of the collision is almost entirely confined to plaintiff's testimony, as he alone was present, and only he can testify as to what occurred.
From plaintiff's own testimony at the trial, it appears that he was a physician and surgeon and occupied a home a mile or two to the east of New Richmond, Ohio; that he left his home about midnight on December 3, 1950, and proceeded westwardly on route 52 toward Cincinnati, Ohio; that after rounding a curve in the road, he observed the light of an automobile approaching him from the west; and that this automobile, proceeding eastwardly, at the time he first saw it, was some 250 to 300 feet away. The evidence shows conclusively that such point was where the New Palestine road joins route 52 from the south, and that directly opposite such juncture is a driveway to the Iglauer property. The plaintiff was unable to say whether the eastbound automobile came north out of the New Palestine road or not. He stated that it "instantly" went across route 52 into the north or westbound lane of traffic in which he was lawfully proceeding, and then "instantly" returned to its proper south or eastbound lane of traffic. *Page 74
Plaintiff stated that he then saw the eastbound car proceeding toward him in his westbound lane of traffic, that he was afraid to stop, but that he reduced his speed from 45 to 35 miles an hour and drove his car to the north side of his lane of travel so that he could "take the ditch" if it was necessary to avoid a collision. A careful reading of all plaintiff has stated on this phase of the matter indicates that the eastbound car simply swerved into the west lane of traffic and then out again, and it is reasonable to suppose that the driver of the eastbound car became aware of the approach of plaintiff's automobile simultaneously with plaintiff's awareness of its presence and that that driver was as anxious to avoid a collision as the plaintiff. The evidence shows also, without doubt, that defendant's unlighted truck, with no fusees or flares burning in its vicinity, was parked in the westbound lane of traffic directly in plaintiff's path, just a few feet to the east of where such eastbound car came into plaintiff's view. Plaintiff stated that the truck completely "occluded and obscured Iglauer's drive."
Plaintiff testified further that when he saw such eastbound automobile and when he was proceeding at a rate of 45 miles per hour, "he was in my lane on the north side of the road, in my lane of travel, and I concluded then that the best thing was not to stop but to pull over and if necessary to take the ditch on the upper side to keep from a head-on collision. And I did pull over and had my foot on the brake all the time. And I moved from where I was approximately at the middle — traffic middle line of the road; I moved over to the far side of the upper lane of travel, that is north some, probably, I should say, maybe five feet, and while I was moving that distance over he again instantly turned his car and moved back over in the south lane and proceeded on towards New Richmond."
Plaintiff stated he was not blinded by the lights of *Page 75 the eastbound car, but that he could not see what was beyond it and did not become aware of the unlighted truck in his path until he had again flicked on his bright lights when he was some 65 to 75 feet distant from the truck and too close to avoid a collision. Plaintiff stated that his car, a 1947 Buick sedan, was in perfect running condition, that the brake mechanism of the automobile was in perfect condition, and that the surface of the road was dry and the night clear. No lights other than those on plaintiff's car and those of the eastbound car were present on route 52. Plaintiff stated he was perfectly familiar with route 52, having traveled it for some 14 years.
Plaintiff stated further in answer to a question on cross-examination as to whether he assumed a clear path ahead of him:
"I wasn't making any assumption at that time. I knew nothingabout anything that lay beyond me." (Emphasis added.)
Plaintiff stated that when he slowed from 45 to 35 miles an hour, and when he was some 250 to 300 feet from the eastbound car when it first became visible to him, that he "could have stopped" but thought it best to proceed to the north side of the road. He stated: "Fortunately when I turned a little in my lane he turned to the other and he did clear out from in front of me." And again, he testified that he (the plaintiff) traveled 175 feet after he saw the eastbound car and before it passed him. It will, therefore, be noted that the plaintiff testified that he traveled 175 feet while the eastbound car traveled 75 feet.
Plaintiff's testimony on this point is as follows:
"Q. Now, I don't know whether I understand your answer or not, doctor. Do I understand you to mean that after you saw this machine that you say was coming toward you that you traveled 175 feet before it passed you? A. I traveled 175 feet before it passed *Page 76 me, before it cleared out from in front of me. While I was traveling that 175 feet that car was moving towards me all the time. I was eating up speed and eating up time, and that car was moving all the time, and that car had been traveling about 75 feet while I had been traveling 175 feet. I was slowing down and had my foot on the brake all the time.
"Q. In other words, after you saw it, as I understand you, you drove about 175 feet in your lane of traffic before this car cut over to the eastbound lane? A. South side of the road, yes.
"Q. The south side of the road? A. That's correct.
"Q. Now, up to that time were you blinded by the lights of that machine? A. No, because I was watching the road and the lights were bright, but I was watching the road and the side of the road and the berm so as to keep in my lane of traffic. Wasn't blinded.
"Q. But so far as what lay beyond that machine you were blinded, were you not? A. I couldn't see over the car.
"Q. You couldn't see beyond those lights? A. I couldn't see over those lights or over the automobile. I knew there was an automobile in front of me because the lights of an automobile were in front of me. You assume that."
Counsel for the defendant tried to get a statement from plaintiff indicating what distance was required to enable plaintiff to stop when traveling at 35 miles per hour, but plaintiff was most indefinite on this point. Plaintiff did state, however:
"A. I couldn't stop it in 75 feet — 65 — 75 feet, whatever that distance might have been.
"Q. Well, could you tell us in what distance you could have — A. I could have stopped my car up the road, as I told you — and I had about 175 feet or 250 feet, and I could have stopped my car any time along there. Of course, after I first noticed him I could *Page 77 have stopped my car, but he might have run into me. But how long and how far it takes to stop a car at different speeds I'm not a mathematician or a genius. I don't know."
Plaintiff testified further that his high lights cast a beam 200 feet ahead, which would reveal any discernible object.
At the time the eastbound car moved into the westbound lane of traffic, the assured clear distance ahead applicable to plaintiff was between 250 to 300 feet and at that point, and within some 200 feet, plaintiff could have stopped his car.
Plaintiff stated that the truck was parked a very few feet east of the point where such assured clear distance ahead was so limited, although it could not be seen by reason of the intervention of the oncoming car. This car "instantly" resumed its eastbound lane, and yet plaintiff proceeded on not knowing what was beyond the point where it entered the westbound lane of traffic. The plaintiff asserts that he had a right to assume that such west lane of traffic, over which he was proceeding, was free of obstruction.
The case of Hangen, a Minor, v. Hadfield, 135 Ohio St. 281,20 N.E.2d 715, is cited in support of such contention. The syllabus of that case is as follows:
"1. Under the language of Section 12603, General Code, providing that no person shall drive 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 stop within the assured clear distance ahead, the questions of proximate cause and negligence on the part of such driver must, under proper circumstances, be submitted to the jury.
"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 *Page 78 because of circumstances over which he had no control, compliance with the law was rendered impossible. (Paragraph 3 of the syllabus in the case of Kormos v. Cleveland Retail Credit Men'sCo., 131 Ohio St. 471, approved and followed.)
"3. These provisions of Section 12603, General Code, do not require the driver of a motor vehicle approaching the crest of a hill 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."
Any statement of law in a syllabus must be read framed within the purview of the facts involved in the case. Baltimore OhioRd. Co. v. Baillie, 112 Ohio St. 567, 148 N.E. 233.
In the Hangen case, supra, as set out in paragraph three of the syllabus, the plaintiff had just passed over the crest of a hill and started down when he was confronted with a car proceeding toward him in his lane of traffic. The facts are stated more fully at page 285, as follows:
"In the instant case the speed of the two automobiles was approximately the same as that of the cars involved in theSkinner and Gumley cases. But here the analogy ends, and the four cited cases are readily distinguishable from the one now before the court. In this case the collision occurred about ten o'clock in the morning. The day was clear, and the surface of the highway was dry. As the plaintiff drove eastward over the crest of a hill he suddenly observed the defendant's automobile approaching toward the west on the plaintiff's, or south, side of the road. According to the plaintiff's evidence the defendant's car was about 250 feet away and directly in the plaintiff's path. The plaintiff immediately applied his brakes and steered his car still farther to his right until its right wheels were on the south or right berm. As this was *Page 79 done the plaintiff's car began to skid and turn. As it continued to skid and turn it veered to the plaintiff's left and toward the middle of the highway. In the meantime the defendant likewise was attempting to steer his car to his right or proper side of the road. He applied the brakes, and his car, too, began to skid and turn. The exact point of the collision is in dispute. The defendant insists that he had turned to his left or south side of the road when he overtook a boy on a bicycle, but that he had regained his right or north side of the highway by the time the collision occurred. This is denied by the plaintiff. He admits that when his car turned crosswise on the road one wheel projected a foot or two north of the middle, but insists that only the right front wheel of the defendant's car had regained the north side of the road. The plaintiff says further that he saw no boy on a bicycle."
The facts involved in the Hangen case were in dispute, and, in any event, entirely dissimilar to those here presented.
In Smiley v. Arrow Spring Bed Co., 138 Ohio St. 81,33 N.E.2d 3, 133 A. L. R., 960, however, Judge Hart, in the opinion, stated at page 88:
"In this connection, by way of extenuation or exoneration, it has been suggested in certain cases that the driver of an automobile in operating his car has a right to assume, until he has notice to the contrary, that others on the highway will obey the law. Under the ordinary rules of negligence this is true, but in the light of the requirements of the statute under consideration, the rule above referred to has little, if any, application. Linquist v. Thierman, supra [216 Iowa 170]. The statute is a safety regulation and imposes upon the operator of a motor vehicle at all times the unqualified obligation to be able to stop his car within the distance that discernible objects may be seen. By force of the statute the motorist may therefore assume *Page 80 nothing that is not assured to him by the range of his vision."
In the Smiley case the facts involved were:
"After dark on December 3, 1936, the defendant's truck being operated in a westerly direction on highway route No. 422 near Parkman, Ohio, became disabled and was parked without lights on the north side of the highway. While the truck was thus located, plaintiff operating his automobile in the same direction behind the truck collided with it, demolishing the automobile and injuring the plaintiff, for which damages and injuries he seeks recovery.
"Plaintiff brought this action in the Municipal Court of Cleveland charging the defendant with negligence in parking the truck on the highway in violation of Sections 12614-3 and 6310-1, General Code. There was some dispute as to the exact location of the truck on the highway at the time of the accident, but this is unimportant in the application of the law to this case. On the other hand, the defendant charged the plaintiff with contributory negligence as a matter of law in operating his automobile at a speed of from 30 to 35 miles per hour and in violating the assured-clear-distance statute, Section 12603, General Code, as a result of which his automobile collided with defendant's truck. The plaintiff sought to avoid the operation of this statute by claiming that defendant's truck was parked 30 feet beyond the crest of a hill where it was not visible to the plaintiff until his automobile had passed over the hill and that he was partially blinded by the lights of another vehicle approaching from the opposit direction, which vehicle, at the moment of the collision, was passing defendant's truck."
To say the least, it would seem that the dogmatic statements in the syllabus of Hangen, a Minor, v. Hadfield, supra, are qualified by the Smiley case, wherein the judgment of the Court of Appeals, sustaining a *Page 81 verdict for plaintiff, was reversed and judgment entered by the Supreme Court for the defendant.
It seems clear that the Supreme Court, as the law stands now, does not hold in favor of an unqualified assumption that the rightful lane of a motorist is free from obstruction by one violating the rules of due care. If such an assumption is warranted, then the obligations imposed by Section 6307-21, General Code, are abrogated, for it is just that assumption that is negatived by the statute.
Obviously, the defendant was negligent, and such negligence was a contributing cause to plaintiff's injuries. It may be admitted also that the driver of the eastbound car was negligent, and that such negligence was a contributing cause of plaintiff's injuries; also, that the questions presented here are whether the plaintiff was guilty of a violation of the statute, and whether such a violation was a contributing cause of his injuries. If the trier of the facts is permitted to determine whether the plaintiff is guilty of negligence in failing to adjust his speed to the assured clear distance within his view, then the specific rule of the statute is abrogated in favor of the common-law rule which it modifies.
The case of Matz, Admr., v. J. L. Curtis Cartage Co.,132 Ohio St. 271, 7 N.E.2d 220, is relied upon as an authority conclusively resolving the issues presented in favor of the plaintiff, in that it is claimed that the Matz case, under conditions similar to those prevailing here, allocates determination of the issues presented to the jury rather than the court, placing responsibility on the jury to determine whether, under all the circumstances involved, the plaintiff used appropriate care.
Paragraph one of the syllabus in the Matz case is:
"The driver of a motor vehicle, who, after nightfall, without his fault, is forced, by an oncoming automobile, *Page 82 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'sCo., 131 Ohio St. 471, approved and followed.)"
The facts involved in the Matz case are stated in the opinion, at page 274, as follows:
"Plaintiff testified on the trial that he was driving east on Mentor avenue at the rate of thirty miles per hour, with his left front wheels about one foot south of the center of the street; that his bright headlights illuminated the road about 250 feet ahead and lighted it up from the center to the south curb; that he was following, sixty feet behind another eastbound car; that two westbound automobiles approached him, driving midway between the center and north curb of the roadway; that after the eastbound car had passed these two automobiles, the rear westbound automobile drove out of line and two or three feet over onto the plaintiff's side of the roadway; that at this time the plaintiff was about 20 to 25 feet from this westbound automobile; that he was obliged to turn suddenly and unexpectedly to the right to avoid a head-on collision with this car; that at the speed he was traveling it would require 25 to 30 feet to stop; that he could not stop before hitting the rear end of the defendant's truck; and that the lights of the oncoming cars in no way interfered with his view to the east along his side of the road.
"The plaintiff's claim of negligence was that there were no lights burning on defendant's truck and no flares were placed on the road. There was evidence tending to prove that the place of the accident was lighted to some extent by street lights and that the lights of the westbound cars illuminated the street to *Page 83 some extent. There was testimony to the effect that the night was dry and clear."
Again, the law pronounced must be read in view of the facts involved. See Baltimore Ohio Rd. Co. v. Baillie, supra.
It seems clear that the facts involved in the Matz case and the instant case are radically different when compared. In theMatz case the plaintiff-administrator, who was driving the car in which his wife was killed, was following "60 feet behind another car," so that the distance was a constant "assured clear distance" for him. In the instant case, taking into consideration the braking quality of his car and the temporary intervention of the eastbound car, plaintiff had an "assured clear distance ahead" of some 250 to 300 feet when that distance was determined by the intervention of the eastbound car. However, plaintiff stated that the intervention was "instantly" removed and that he was not blinded by the oncoming lights.
In the Matz case it appears that the intervening car crossed into the path of the plaintiff's car when but 20 to 25 feet from it, and, as far as the facts show, continued on in the plaintiff's lane of traffic; and that the plaintiff in that case had no choice but to immediately swerve out of the path of the intervening car, resulting in an immediate collision with the defendant's truck.
A case in which excuse for compliance with the statute is developed is McFadden, Admx., v. Elmer C. Breuer TransportationCo., 156 Ohio St. 430, 103 N.E.2d 385. The facts are stated in the second paragraph of the syllabus as follows:
"Where, in an action for the wrongful death of the operator of an automobile which collided with a roll of steel, 34 inches in height, 3 feet, 11 inches in diameter and weighing over 13,000 pounds, which dropped from defendant's truck, which was going in the opposite direction, into the path of the operator of the automobile, *Page 84 the defendant truck owner admits negligence proximately contributing to the collision but asserts as a defense that the operator of the automobile was guilty of contributory negligence in that he violated the provision of Section 6307-21, General Code, commonly referred to as the assured-clear-distance-ahead rule, the burden is upon the defendant, in order to make a prima facie case of such contributory negligence, to present substantial evidence (a) that the object with which such operator's vehicle collided had been in his path or lane of travel before the collision at a sufficient distance ahead of him to have made it possible for him, in the exercise of ordinary care, to stop such vehicle and avoid a collision, and (b) that such object was a reasonably discernible one."
In the first paragraph of the syllabus, the court laid down the law as applicable to the statute. It is stated therein:
"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 line of travel within the 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."
In the opinion, at page 434, this statement is amplified:
"The decisions of this court have established that the operator of a motor vehicle violates this statute if *Page 85 he drives at such speed that he collides with a reasonably discernible object (1) which is located ahead of him in his lane of travel and which object is (a) static or stationary (Skinner v. Pennsylvania Rd. Co., 127 Ohio St. 69, 186 N.E. 722;Watt v. Jefferson Trucking Co., 130 Ohio St. 99,196 N.E. 887; Kormos v. Cleveland Retail Credit Men's Co., 131 Ohio St. 471,3 N.E.2d 427; Smiley v. Arrow Spring Bed Co., 138 Ohio St. 81,33 N.E.2d 3, 133 A. L. R., 960), or (b) moving ahead of him in the same direction (Gumley, Admr., v.Cowman, 129 Ohio St. 36, 193 N.E. 627; Higbee Co. v.Lindemann, 131 Ohio St. 479, 3 N.E.2d 426; Bickel v.American Can Co., 154 Ohio St. 380, 96 N.E.2d 4), or (2) which appears in his path at a sufficient distance ahead of him to give him time, in the exercise of ordinary care, to bring his automobile to a stop and avoid a collision (Klever v. ReidBrothers Express, Inc., 151 Ohio St. 467, 86 N.E.2d 608;Erdman v. Mestrovich, 155 Ohio St. 85, 97 N.E.2d 674;Sherer v. Smith, a Minor, 155 Ohio St. 567,99 N.E.2d 763)."
Another case mentioned in the consideration of this case is that of Erdman v. Mestrovich, 155 Ohio St. 85,97 N.E.2d 674, where a pedestrian was struck by the defendant's automobile at a street crossing. The defendant claimed that the plaintiff suddenly darted in front of his automobile and that he could not avoid striking him. The trial court refused to charge on the assured-clear-distance-ahead rule. The Court of Appeals reversed, and was reversed by the Supreme Court. In the Erdman case the evidence was in conflict.
Still another case involving the rule is that of Sherer v.Smith, a Minor, 155 Ohio St. 567, 99 N.E.2d 763. In the opinion, at page 570, it is stated:
"This court held, in effect, in the recent case of Erdman v.Mestrovich, 155 Ohio St. 85, *Page 86 97 N.E.2d 674, that the assured-clear-distance-ahead rule has no application in a situation where a person, motor vehicle or object suddenly enters the path of another motor vehicle from the side, unless such person, motor vehicle or object comes into the view of the operator of the other motor vehicle at a point sufficiently distant ahead to enable such operator, in the exercise of ordinary care, to stop his vehicle and avoid a collision.
"Applying such holding to the instant case wherein plaintiff and defendant entered the intersection from different directions, each claiming he proceeded on a green light, and where both of them testified that neither saw the automobile of the other until a second before the crash, we are of the opinion that the trial court herein properly removed from the consideration of the jury the `assured-clear-distance-ahead' provision of Section 6307-21, General Code."
The instant case, it is apparent, is dissimilar to many of the cases considered, in that in the latter are present direct conflicts as to the facts involving the collision. There is no divergence in the evidence in the instant case as to what occurred immediately prior to and at the time of the collision, for, as has been said, these facts are established by the plaintiff's testimony. There is thus presented squarely to the court the duty of determining the applicability of the statutory rule and the relation of a violation of the rule to plaintiff's injuries.
In the instant case also, there is not involved a collision with an intervening agency. It must be apparent that, since the eastbound car became visibile to the plaintiff at a point, in effect, identical with the location of the truck with which plaintiff's automobile collided, he had ample time to control his automobile, so that he would neither have collided with the approaching vehicle or the truck which he did not see or take precaution to see. Had plaintiff's automobile collided *Page 87 with the eastbound automobile, swerving in and out of his lane of traffic, a different problem would have been presented. The emergency, if it existed, was eliminated almost as soon as it was created, and yet the plaintiff, not knowing what was beyond the point where his vision was temporarily obscured, proceeded on at a speed which manifestly did not permit him to stop when the lane before him became clear to his vision. The existence of the eastbound car shortened his assured clear distance ahead and required consistent action on the part of plaintiff to bring himself within the protection of the rule. The undisputed facts — disclosed by his own testimony — were that plaintiff continued at a speed that made it impossible for him to stop at the point where he ceased to have an assured clear distance ahead, and the point where his path was blocked by the defendant's truck. The considered necessity for movement to the north side of the road did not relieve him from the constant requirement to regulate his speed to the known distance of safety. It does not seem that there can be any question that such failure was a contributory cause of his own injuries.
Aside from the requirements of the statute, the facts involve much the same principle found in the so-called "step in the darkness cases" such as McKinley v. Niederst, 118 Ohio St. 334,160 N.E. 850; and E. Kahn's Sons Co. v. Ellswick, 122 Ohio St. 576,172 N.E. 668. To proceed onward, not knowing what was in his path, seems to be conclusive evidence of contributory negligence, justifying final judgment against the plaintiff. Judgment should be so rendered accordingly. *Page 88