*613OPINION
By HILDEBRANT, P. J.Plaintiff’s decedent riding as a guest in an automobile driven by one Crigler was killed when said automobile crashed into the rear of the Harvey Transfer truck, driven by one Hopper, which had come to an emergency stop on the highway, due to a blown fuse extinguishing all its lights, while being driven at night in a southerly direction on Route 4, between Middletown and Hamilton in Butler County, Ohio. The Holmes truck driven by one Dennis in a northerly direction was stopped off the main traveled portion of the highway on the gravel entrance to a driveway approximately 200 feet north of the disabled truck, while its driver investigated the necessity for aid. The headlights of the Holmes truck were undimmed, but remained on bright, shining in a northerly direction.
The Holmes driver, observing the lights of the approaching. Crigler automobile some 1000 to' 1500 feet away, stood about 3 feet east of the center line of the highway and attempted to flag the Crigler car by waiving a hand flashlight. As the Crigler car passed him, he yelled “Look out for that truck.” The only response of the driver of the Crigler car, to the warning thus given was to steer his automobile somewhat to the right and it continued on at the same rate of speed until it crashed into the rear of the disabled truck, the center of its bumper striking the right rear W’heel of the Harvey truck.
The principal claims of error are as to the giving of defendants’ special charges numbered 4, 3, 1, 6, and 7, and injecting the question of contributory negligence into the case by a charge of the court thereon.
Special charge No. 4 was as follows:
“I charge you that where one without fault of his own is placed in a situation of sudden emergency he is not to be held to the exercise of the same care and circumspection that is required of one who is acting under normal conditions where no emergency is present. The test to be applied is, whether or not the person in such a situation of sudden emergency did or attempted to do what a reasonably prudent person would have done under the same or similar circumstances.
“If, therefore, you find from the evidence in this case that *614the driver of the Harvey Transfer Company truck, Hobart Hopper, without fault of his own, was placed in a situation of sudden emergency and that while in such a situation he did or attempted to do what any reasonably prudent person would have done under the same or similar circumstances, then he was not negligent/’
Sec. 6307-100 GC, has set forth what shall be done in such an emergency and there is no room for application of the otherwise correct charge under the common law. See. 6307-100 GC, provides:
“(a) Whenever any motor truck, trackless trolley, bus, commercial tractor, trailer, semi-trailer or pole trailer is disabled upon the traveled portion of any highway or the shoulder thereof outside of any municipality at any time when lighted lamps are required on vehicles and trackless trolley, the operator of such vehicle or trackless trolley shall display the following warning devices upon the highway during the time the vehicle or trackless trolley is so disabled on the highway except as provided in subsection (b):
1. A lighted - fusee shall be immediately placed on the roadway at the traffic side of such vehicle or trackless trolley •unless red electric lanterns are displayed.
2. Within the burning period of the fusee and as promptly as possible three lighted flares (pot torches) or three red electric lanterns shall be placed on the roadway as follows:
One at a distance of forty paces or approximately one hundred feet in advance of the vehicle, one at a distance of forty paces or approximately one hundred feet to the rear of the vehicle or trackless trolley except as hereinafter provided, each in the center of the lane of traffic occupied by the disabled vehicle or trackless trolley, and one at the traffic side of the vehicle or trackless trolley.
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It was, therefore, prejudicial error for the court below to give defendants’ special Charge No. 4.
As to the issue of contributory negligence, the obligation of a guest is generally set forth in Smith v Cushman, 54 Oh Ap 99, at page 107, quoting from Richards v Warner Co., 311 Pa., 50, (166 A., 496, 87 A. L. R., 1159), as follows:
“ ‘An examination of the eases * * * shows the test of negligence of the passenger is his action or want of action in the face of danger which was manifest or known to him, or *615which it was his duty equally with the driver to observe. None of these cases goes so far as to hold the passenger is bound to exercise the same degree of care in observing the roadway ahead of him as is required by the driver of the.vehicle. * * * The tendency of our decisions is to hold a passenger responsible for his actual negligence in joining with the driver in testing a danger he knows exists, and not for the result of mere inaction in failing to discover dangers of which he is ignorant, but might have discovered had he been giving attention to the roadway ahead of him. * * * The extent to which one riding as an invited guest in an automobile should anticipate an impending peril and act in relation thereto depends upon the facts of each case.’ Mrs. Richards was not required to keep her attention fixed on the roadway ahead of her. She could trust Higgins, the driver of the car, to exercise care in this respect.” .
The evidence here shows plaintiff’s decedent and Crigler left their wives at a picture show and started out for an evening-alone, visiting various places where intoxicating liquors were sold over a period of two or more hours but admitting to only two glasses of beer each. Approximately as late as 9:30, P. M., ór later, they started to drive in a southerly direction on the Middletown-Hamilton Road, with no' particular destination in mind. Crigler testified he was driving about 30 miles per hour, when the lights of a truck blinded him and very shortly thereafter the collision occurred. He testified that decedent was awake and upright in the seat beside him and they were talking and that, although looking ahead at the time, decedent said nothing about, the blinding lights nor the waiving flashlight nor the warning call to “Look out for that truck,” nor took any action of any kind to direct the attention of Crigler thereto.
The Highway Patrolman testified that several hours after the collision, Crigler’s breath was "heavy with the odor of beer. Thus, there was some evidence of drinking of intoxicating beverages by Crigler and decedent was in position to have known the extent thereof. While this Court would be very reluctant to extend to the guest a duty of discovering dangers, yet it appears from the record that decedent was faced with the blinding lights, if they were blinding, at the same time as the driver and was faced with the warning flashlight and spoken warning, and the disabled truck and the open roadway to the left of it which became discernible in the light of the Crigler car were as apparent to him as to Crigler.
*616On approaching the scene of this accident, the ordinarily prudent man, riding as a guest in the front seat beside the driver in the night time, would perforce become aware of the lights described by the driver as blinding, and would perforce become aware that such lights were stationary. He would also become aware of the waving flashlight and attach-his own significance thereto. Would the circumstances above set forth, when coupled together, cause the ordinarily prudent man to become alert and when the driver failed to slacken his speed cast a duty on the guest, out 'of consideration for his own safety, to call the attention of the driver to what his own sense of sight had communicated to him? While the time was short after the warning call, yet still was it too short for the guest to speak and was it too short to observe in the lights of the car the hazard and the open way to the left thereof, so as to utter some word of warning for his own safety? The Court believes the above would not be an unreasonable analysis of the situation and, therefore, presents a question of fact for the jury, rendering the charge on contributory negligence proper.
Since no interrogatory was submitted to test the general verdict, the two issue rule must apply, and it is unnecessary to elaborate on the other claimed errors except to say that the Court finds no error in the record, prejudicial to appellant other than that indicated above.
The judgment is affirmed.
MATTHEWS, J., concurs in separate memorandum. ROSS, J., dissents in separate memorandum.