While I concur with the principal opinion on its holdings, I believe that on remand we should indicate further that on the facts of record it would not have been erroneous to refuse a charge on contributory negligence.
It is well settled that one having the right of way still must exercise ordinary care under the circumstances. However,one of the circumstances is the right to expect that the other will yield and this must be taken into account. Juergens v.Bell Distributing, Inc. (1939), 135 Ohio St. 335, and especially at page 342. Under the facts here, any inference of contributory negligence could reasonably have been considered as speculative. *Page 48
Parsons Avenue is a north-south street of four lanes; Main Street is an east-west street. The intersection is controlled by traffic lights. The taxicab of defendant proceeded on the interior lane of Parsons Avenue in a southerly direction, entered the intersection on a green light and stopped about the middle, west of the center lane, intending to make a left turn east onto Main Street. While so standing, a north-bound vehicle on Parsons Avenue was also stopped intending to left turn west onto Main Street. Plaintiff was proceeding north on Parsons Avenue in the extreme east lane. The taxicab itself was hidden from his view as he approached the intersection. He did see the light or taxicab mark on its roof from approximately a half-block back. The taxicab remained standing as he approached the intersection. As plaintiff reached the vicinity of the south crosswalk, and still with the green light, the north-bound vehicle turned west and the taxicab turned east, pulling across plaintiff's line of travel. There is no question of negligence by the plaintiff from that point to the point of collision.
It is apparent that plaintiff's conduct does not fall within the doctrine of Morris v. Bloomgren (1933), 127 Ohio St. 147, paragraph five of the syllabus of which states:
"The driver of a vehicle lawfully approaching from the right has the right to assume that the driver of the vehicle approaching from the left will obey the law by yielding the right of way. If however the former, just as he is approaching or entering the intersection, discovers that the latter is notyielding the right of way and has thereby placed himself in a perilous situation, it becomes the duty of the former to use ordinary care not to injure the latter after becoming aware of his perilous situation." (Emphasis added.)
Plaintiff's conduct from the moment he discovered that the taxicab was not going to yield is not in question. Contributory negligence, if any, must be based on the theory that he should have anticipated that the taxicab might illegally and negligently enter his path. (Quaere, whether appellee would argue the same theory if plaintiff's right of way and defendant's obligation were strengthened by a specific prohibition on left turns.) This theory would require the plaintiff to slow his vehicle to such a speed as would enable him to avoid the collision upon the taxicab's pulling out. Cf. Pitt, Admx., v. Nichols (1941), *Page 49 138 Ohio St. 555. How much he must reduce his speed to achieve that control would depend on how close the taxi was when it pulled out. Carried to its logical extreme, plaintiff should come to a complete stop!
The ability or inability to move traffic is not just a matter of convenience. It has a substantial impact on the welfare of the entire community. It affects business and tax base, economic growth and physical development. While logical legalistic analysis is indispensable, experience is the lifeblood of the law. We must not impose unreasonable burdens upon the motorist, and upon government in its efforts to deal with present day traffic problems.
The case of Grass v. Ake, Exr. (1950), 154 Ohio St. 84, has been suggested as authority that there is always, or about always, a question of fact on contributory negligence in "right of way" cases. However, a precedent which involves a weighing of evidence should not be accorded the same respect as a precedent on a question of law. The Grass case, in my opinion, is an extreme application of settled doctrine. It should be confined to its facts rather than be considered as a binding legal precedent requiring the submission of the issue of contributory negligence to the jury.
Plaintiff here had not "utterly disregarded the circumstances." Grass v. Ake, Exr., supra, at 88. He knew that he had the right of way, that the taxicab had yielded, and it continued to yield up to the moment the collision was unavoidable. Under those circumstances, and taking into account the right to assume the taxicab would not wrongfully and negligently violate his right of way, the trial court could have refused an instruction on contributory negligence. *Page 50