dissenting:
There is some criticism in the majority opinion of the averments of the petition and of the general charge relative to wanton misconduct but the pleading is not held to be insufficient nor the charge erroneous. I am satisfied that the averment that the defendant drove his car wilfully, wantonly and negligently and the setting out of the factual particulars constituting such wanton acts was sufficient, that the charge of the Court is correct and that the' jury was fully justified in finding that the defendant was chargeable with wanton misconduct.
The acts of the defendant may be squared with the definition of wanton misconduct as carried in the second proposition of the syllabus in Universal Concrete Pipe Co. v Bassett, 130 Oh St 568, and it is not necessary to cite nor consider other cases because this syllabus sets forth the latest expression of the Supreme Court as to the elements constituting wanton misconduct. It is defined as follows:
“Such conduct as manifests a disposition' to perversity, and it must be under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct, will in all common probability result in injury.”
Tersely stated, the facts which the jury had the right to find in this case under the evidence are, that the driver of the automobile operated his car at a speed of 40 to 45 miles per hour on a narrow highway, fixed his attention on objects to the right side and rear of the auto, thus taking his eyes completely off his steering wheel, and the road ahead for a distance of two city blocks, and as a result thereof left the road, the automobile turned over and plaintiff was injured. It further appears that defendant at no time did anything to avert the accident.
If such acts, under all the circumstances, do not constitute wanton misconduct, I can conceive of no conduct that could be so characterized. A driver manipulating a car as the defendant did is chargeable with the knowledge, that the natural and probable result of his deliberate act will probably cause him to leave the highway and result in damage or injury, and his continued conscious failure to resume such attention to- his wheel, as the slightest concern for the welfare of his passengers would prompt, compels the inference that he was utterly indifferent to and heedless of the safety of his passengers. Morrow v Hume, 131 Oh St 319, and manifested a disposition to perversity, Universal Concrete Pipe Co. v Bassett, supra.
*393This case in my judgment presents every element constituting wanton misconduct as defined in every case cited by the majority, save one —Murphy v Snyder, 63 Oh Ap 433, and the majority opinion not only criticises this decision but says that the conduct there found not only constituted wanton misconduct but also wilful misconduct.
Some emphasis is placed upon the fact that when the car had come to rest at the side of the road 8 feet therefrom, two of the front tires and -and possibly one of the rear tires were flat and from this it is urged that it is impossible to say that the accident was not caused by a blowout or a puncture or some trouble with the tires. It is not necessary to determine that the misconduct of the driver was the sole proximate cause of the injury to plaintiff if it is probable that it was a proximate cause of such result.
The judgment should be affirmed.