DISSENTING OPINION
By BARNES, J.I am unable to agree with my associates in reversing and remanding for new trial.
The rather recent amendment of §12603 GC, as construed by the Supreme Court in Skinner v Pennsylvania R. R., 127 Oh St, 69 adequately sustains the lower court in' directing verdict at the close of plaintiffs testimony.
In the majority opinion it is held that the icy condition of the road was an element which would make inapplicable the assured clear distance ahead provision of the code. The statement is made that but for the icy condition of the road, the plaintiff could have stopped his car very easily within the assured clear distance ahead. If this icy condition had been limited to an isolated location in the road and unknown to the plaintiff, then I could agree that it would be a jury question to determine whether or not the assured clear distance ahead provision of the code would be applicable. This was the principle that was laid down in the case of Dietrichs v Duke et, (Mich.) 207 NW, 874. Under the evidence in the instant case we find that the icy condition of the road was general and likewise this condition was known to the plaintiff. According to his evidence he delayed starting home for some six or seven hours because of the very bad weather conditions. He. knew before starting that the road was icy. He had no- chains on his tires; he approached this hill at a speed, as'he says, of about 25 miles an hour; the road was so slippery that he could not touch his brakes or releas? his clutch without going' into a skid. Under such a situation he is admittedly going too fast. He did not have his car under control. There is always the obligation to take into consideration the traffic, surface width of the road and any other conditions then existing. When we say that the plaintiff could not touch his brakes or release his clutch without his car skidding, this at once establishes the fact that he was not driving so as to stop within the assured clear distance ahead. If at 'a lesser speed he could have had the requisite control of his car, then it was his duty to so operate. If it is the claim that the street was so icy that control could not be had at any speed, then plaintiff would be guilty of negligence in voluntarily undertaking such a hazardous venture.
The observation is made by Chief Justice Weygandt in the case of Skinner v Pennsylvania R. R., 127 Oh St, 69 that the assured clear distance ahead provision of §12603 GC 'is adopted from a similar enactment in the state of Michigan. This particular provision of the Michigan statute has been before the court of last resort in that state very frequently. The case of Bowmaster v DePree, 252 Michigan, 502; 233 NW, 395 is cited by Judge Weygandt in the Skinner case. This same question has been under consideration. Another Michigan case somewhat in point is Lett, v Summerfield and Hecht, 239 Michigan, 699; 214 NW, 939.
-The State of Pennsylvania has a similar statute and the Superior Court of that state has had the question under consideration as found in the case of Milligan v United Laundries, 161 Atlantic Reporter, page 73.
The question is raised that the plaintiff was confronted with an emergency and therefore was not bound to exercise the same clear judgment as if the emergency .had not existed. The case of Pennsylvania R. R. v Snyder, 55 Oh St, 342 is cited in support of the emergency theory.
The rule is well recognized that one of the situations to make it applicable is that the person who finds himself confronted with the emergency must show that he was not guilty of negligence in placing himself in such situation. This is the express language of the third syllabus in the above cited case. I am unable to see that the emergency theory -is at all applicable. In my judgment the plaintiff does not bring himself ■ within the principle for the reason that he fails to show that he was not guilty of negligence in placing himself in the. position of claimed .emergency,
*231In the second place this road was very wide; the paved portion was' 20 feet in width and there were good g'raveled, hard surfaced berms to the width of 88 feet on the east and 6 feet on the west. But plaintiff says that the truck was occupying the entire right hand portion of the road and that the driver was over on the left hand side at a distance of 1 to 2 feet from the truck starting to put on chains. Nevertheless it appears that at least 14 feet of good road remained upon which plaintiff could pass if he had had his car under control.
After a careful consideration of the record in this case, I am unable to conclude that the trial" court was wrong in directing a verdict.