It is claimed that this *Page 372 case differs from the case of Mostov v. Unkefer, 24 Ohio App. 420, 157 N.E. 714, for the reason that the defendant proved the law of the state of Michigan by offering in evidence certain decisions of the Supreme Court of Michigan in which it was held that, where a party in an automobile ran into an unlighted truck or obstruction, he could not recover because he was guilty of contributory negligence as a matter of law. Such decisions, we take it, are only authority in causes based upon the same or similar facts. We cannot conclude that the Supreme Court of Michigan would reach a similar conclusion upon the very different state of facts presented in the instant case.
The plaintiff below, in giving his testimony upon the witness stand, stated that, when he first knew and ascertained that there was an obstruction or truck in the road ahead of him, he was two car lengths from it, or in the neighborhood of 40 feet. It is true that in another part of his testimony he made a statement which conflicts with this one, but it is also true that he made no explanation reconciling the two. The truth as to how far he was from the obstruction or truck when he first saw it would be for the determination of the jury, and this court cannot make a finding thereon as a matter of law. Painesville Utopia TheatreCo. v. Lautermilch, 118 Ohio St. 167, 160 N.E. 683. The inference also arises from some of plaintiff's evidence that the light of his automobile shone 200 feet ahead of him, but that he did not see the unlighted truck on the highway sooner because it was of the same color as the pavement, and blended into it.
While the reason given by the Supreme Court of *Page 373 Michigan for holding the injured driver of an automobile guilty of contributory negligence as a matter of law in the cases offered in evidence is that driving a car at such a rate of speed that the driver cannot stop within the range of his lights is negligence per se, we cannot see that that rule would bar the plaintiff under the facts in the instant case. The rule to be applied in the instant case is more like the rule applied by the Supreme Court of Michigan in Diederichs v. Duke, 234 Mich. 136,207 N.W. 874, wherein the Supreme Court held that the case was one for the jury because there was a slippery condition of the pavement which could not have been reasonably anticipated and of which the driver did not know. In the instant case we have a truck upon the pavement, unknown to the plaintiff driver, under such circumstances that plaintiff did not know the truck was there until he saw it, and could not have anticipated that it would blend into the pavement so as not to be seen until too late. Of course, in this reasoning we give the evidence the interpretation most favorable to plaintiff below. Pope, Admx., v.Mudge, 108 Ohio St. 192, 140 N.E. 501; Pennsylvania Rd. Co. v.Rusynik, 117 Ohio St. 531, 534, 159 N.E. 826, 56 A.L.R., 538.
We think the trial court was right in refusing to direct a verdict. As a majority of the court are of the view that final judgment should be entered, we have not made a careful examination of the other errors assigned. *Page 374