dissenting.
The issues and factual background of this case are sufficiently described in the majority opinion, thus obviating the necessity of repetition here.
In my opinion the conclusion of the trial court that the plaintiff was guilty of contributory negligence as a matter of law is not sustained by the evidence and is in direct conflict with the special findings of fact returned by the jury in answer to interrogatories Nos. 2 to 5, inclusive. The evidence in the record clearly shows issues of fact from which reasonable minds might reasonably draw different conclusions. Therefore, the determination of these issues was a question of fact for the jury rather than a question of law for the court.
The answer of the jury to interrogatory No. 1, to the effect that the plaintiff could see a substantial object in front of his car immediately before the accident, only forty feet due to weather conditions, is not supported by the trial court. The evidence in the record on this subject is the testimony of plaintiff to the effect that his automobile was equipped -with good headlights and that he could see a distance of from two to three hundred feet in front of his car.
The answers of the jury to interrogatories Nos. 2 and 3, together with the evidence proffered by plaintiff, indicate that the trailer emerging from the private driveway first appeared to plaintiff when he was a distance of only forty feet away and that at that time the rear end of the trailer was out in the highway, east lane No. 1, about four feet west of the curb. There is a striking similarity here to the case of Reeves v. Joe O. Frank Co., 76 Oh Ap 1, where the court said in part:
“In applying the rule laid down here it is of vital importance whether the truck was parked on the main portion of the traveled highway or whether it was parked completely on the berm and then started up and cut across the highway in front of the plaintiff. If the latter was the case, then the assured clear distance rule would not apply and there would be no -violation of §6307-21 GO, by the plaintiff.”
*416It will be noted in the instant case that the jury could well find from the evidence, as undoubtedly they did, in view of their answers to special interrogatories 2 to 5, inclusive, and by their general verdict, that the assured clear distance ahead of the driver was cut down or lessened by the entrance into his path or line of travel of an obstruction creating an emergency which rendered him unable, in the- exercise of ordinary care, to avoid colliding therewith.
The view of the Court of Appeals in the Reeves case, supra, finds adequate support in the decision of the Supreme Court in the case of Smiley v. Arrow Spring Bed Co., 138 Oh St 81. See also, Proctor v. White, 22 Abs. 115.
The majority opinion does not discuss interrogatories 4 and 5 and the answers thereto, which were as follows:
“4. Was the plaintiff negligent?
“Answer: In our opinion ‘No.’”
“5. If you find the plaintiff was negligent, was such negligence a proximate cause of the collision?
“Answer: No.”
These answers, which must be construed as findings of fact on all the evidence, were entirely consistent with answers to interrogatories 2 and 3 and the general verdict, which was in favor of the plaintiff in the sum of $20,000.
Holding these views, it is my opinion that the judgment of the Common Pleas Court should be reversed for error of law in granting the motion non obstante veredicto. The trial court having failed to rule on the motion for new trial, and no error prejudicial to the rights of the defendant appearing in the record, the case should be remanded to the trial court with instructions to overrule the motion for a new trial and to enter judgment in favor of the plaintiff upon the general verdict.