dissenting:
I respectfully dissent from the majority decision entering final judgment for the defendant.
The opinion in the main is predicated upon legal propositions, none of which was advanced by counsel, and therefore neither party had the opportunity to brief the questions. The majority finds that there was no nuisance; that the negligence of Howard, the driver of the car which struck plaintiff, was the proximate cause of her injuries, or possibly the “failure of the driver of the vehicle proceeding in the opposite direction to concede Howard sufficient space to pass”; that in no view of the facts could the condition of the street at and about the place where the automobiles passed have constituted a proximate cause of plaintiff’s injury.
It has many times been held that the maintenance of a street of a municipality in an unsafe condition constitutes a nuisance. Village of Cardington v Admr. of Fredericks, 46 Oh St 442; City of Cincinnati v Darby, Admr., 5 N. P. (N.S.) 216; City of Hamilton v Dilley, 120 Oh St 127, at p. 132.
Without analyzing the testimony, it-is sufficient to say that upon the condition of the street at and along the excavation, as it appeared on the night when plaintiff was injured, there was presented a question for the jury whether or not it constituted a nuisance.
It may be conceded that Howard was negligent in driving his automobile prior to and at the time when plaintiff was struck. It does not, however, appear that as a driver he was familiar with the physical situation with which he was confronted when the accident occurred. The record discloses that he had been over this thoroughfare but once before since it was in the same condition as on the night of the accident, and then as a passenger — not as a driver. But the concession of his negligence does not preclude a finding against the City if there was a nuisance in the street and it and the negligence of Howard were proximate causes of plaintiff’s injury. The third party involved, namely, the driver of the car approaching Howard’s automobile, was along the side of the excavation and the piles of dirt which extended out to within twelve inches of the south edge of the improved highway. The record will permit of the inference only that the oncoming driver was exercising due care, nor can it be assumed that he was familiar with the situation. As there were no lights along the excavation, no guard rails and no watchman *31to apprise him of the true situation, it was only the exercise of ordinary care on his part to keep well to the south of any and all of the dirt from the excavation. It was this factual situation which forced him to so encroach upon the pathway of Howard as to require him to swerve to pass the oncoming automobile.
It may be that had Howard stopped his automobile he would not have struck the plaintiff; but it is just as probable that the cars would have collided, because the only place left for Howard to move was to the south of the dirt road on which he was traveling. We are not required to say that, because Howard did not stop but chose to drive on and get out of the way of the oncoming vehicle, he alone was thereby negligent and his sole negligence was the cause of plaintiff’s injuries. It is well within proper factual determination to conclude that the condition in the street created by the City was the cause which started all subsequent causes, which in combination brought about the impact of Howard’s car against the plaintiff.
The observation is made m the majority opinion that “the evidence is clear that enough space was left between the dirt pile and high tension poles on the south side of the street to permit two automobiles to pass each other.” This is true but it must be modified in two particulars: first, the driver might be inside the poles and off the traveled portion of the dirt road; second, there was only room- for two automobiles to pass if each was using its half only of the road in which they were required to move. This implied that the driver next to the dirt from the excavation must keep very close to it.. There is considerable testimony in this record that there was not room for two automobiles to pass on the dirt road. The dirt along the excavation was not the immediate cause of Howard’s driving off the south side of the dirt road but the position of the car coming toward him.
In 2 Restatement of the Law of Torts, Section 431, legal cause is defined:
. “The actor’s negligent conduct is a legal cause of harm to another if
“(a) his conduct is a substantial factor in bringing about the harm, and
“(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.”
And Section 435, same text:
“If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.”
Of course, we are here dealing with a nuisance rather than negligence, but the test of proximate cause is the same in either.
It is well recognized that there may be more than one proximate cause, and likewise that concurring or combining causes may both or all be considered as in the line of proximate causation of a result.
The condition created by the defendant, which the jury had a right to find was a nuisance, forced automobile traffic to move to the side road.
There are but a few cases reported on multiple causation where the facts are at all similar to those found in the instant case, and practically all of them are cited in plaintiff’s brief. In Casey, Admr. v City of Chicago, 189 Ill. App,, 188, the facts and the law are found in the second and third propositions of the syllabus:
“2. Where a child playing in the street was killed by a cake of ice falling from a wagon because the wagon ran into a hole in the street, held that the negligence of the driver of the wagon would not excuse the negligence of the city in permitting the holes to be in the street if such negligence of the city was the proximate cáuse of the accident.
“3. For an act of negligence to be the proximate cause of an injury, it need not be the sole or exclusive proximate cause, but it must be a proximate cause, *32either alone or concurrently with some other.”
A pedestrian to avoid being struck by automobiles coming in opposite directions climbed onto a pile' of dirt and lumber in a street where there were no sidewalks. The automobiles, because of the narrowness of the street, caused by the obstruction therein, collided, one of them striking the pile of dirt and lumber and thus injuring the plaintiff. The court held that it was a factual question whether or not the defect in the street was a proximate cause of plaintiff’s injury. Blankenship v City of Williamson (W. Va.), 132 S. E. 492.
In Gray v City of Des Moines (Iowa), 265 N. W. 612, it was held:
“1. Whether a city’s negligent failure to repair a broken pavement on a street conveying heavy traffic was the proximate cause of injury to an occupant of an automobile which, on striking the defective place in the pavement, swerved to the left and collided with a truck proceeding in the opposite direction on its own side of the street, is a question for the jury.”
In East Cleveland v Latimer, 2 Abs 283, the Court of Appeals of the Eighth District held that:
“Municipality, leaving unlighted row of bricks in street at night, is proximately liable with owner of automobile, driving fast, striking bricks and swerving into and injuring driver on other side of street.”
Judge Vickery in the opinion'said:
“If it had not been for the pile of bricks in the street, the fast driving of Brinkman would not have caused this accident. The proximate cause was not the fast driving alone, but it was a combination of the fast driving and the presence of the unlighted bricks in the street.”
In Stemmler v City of Pittsburgh, 135 Atl. 100, holes in the street were filled with water. A bicylist ran into one of the holes, causing the mud therefrom to fly out and strike him in the eye, causing him the loss of that member. The court supported the conclusion that the defect in the street was a proximate cause of plaintiff’s injury and said:
“1. Test of ‘proximate cause’ is whether facts constitute continuous succession of events constituting natural whole, or whether chain of events is so broken as to become independent, and final result is not natural and probable consequence of primary cause.”
Other cases cited in the brief of plaintiff, which are helpful by analogy are:
Gonzales v City of Galveston, 84 Tex. 3.
Motz v Akron, 22 Oh Ap 98.
Neidhardt v City of Minneapolis (Minn.), 127 N. W. 484.
Van Order v City of Columbus, 41 Oh Ap 462.
Stemmier v City of Pittsburgh, supra, is the subject of a case note which is found in 49 A. L. R. 1229. The court cites three cases and makes the observation that search reveals that they are the only cases which may be regarded as precedents on the specific point decided in the main case.
It was well within the jury’s province to determine that the automobile which struck the plaintiff would not have been caused to swerve but for the condition created by the nuisance in the street. Had the passenger in the automobile which struck the plaintiff been injured, the joint cause of his injury would have been the act of his driver in swerving, and the condition in the street, which caused him to swerve. The jury could properly have found that neither automobilist was negligent, though the negligence of either or both would not prevent plaintiff’s recovery, unless such negligence was the sole proximate cause of her injury.
It is my judgment that the question whether or not the nuisance in the street was a proximate cause of plaintiff’s injury was one of fact, properly submitted to the jury, and that in holding with the plaintiff on this disputed question the jury did not act manifestly against the weight of the evidence.
The judgment should be affirmed.