concurring.
I concur in the action of the majority in affirming the dismissal of the petition against defendant-appellee, Robert A. Minch, but for a different reason than that asserted in the majority opinion.
The petition stated a cause of action in the second specification of negligence “that the defendants did not keep any lookout ahead of them” and had the appellant complied with the dismissal order he had the right to proceed upon the second specification of negligence and, in probability, the Common Pleas Court was of opinion that the first specification of negligence stated a cause of action without the matter ordered stricken in sustaining the motion. However, appellant, with knowledge of his rights, elected to refuse to comply with the order of the Court and there is thus presented only the question whether the judge abused his discretion in sustaining the motion. I believe that he acted within his discretionary power although he may have erred in sustaining the motion. Harrison v. Knight, Admr., 19 O. C. C. (N. S.) 457.
In my judgment the court erred in sustaining the motion in both particulars challenged on this appeal. It is of course basic that a pleader must set up operative facts which constitute a cause of action. In a negligence case it is not sufficient nor proper to plead only the violation of a statute in terms of the statute. Goldsberry v. Lefevre, 24 Abs 146. Thus, the mere averment in the petition that defendants failed to stop within their assured clear distance ahead is not good pleading and there must be set forth other ultimate facts which require the conclusion that the assured clear distance ahead provision of the statute has been violated. I am unable to find any subject matter in the allegations of the petition prior to that which the court ordered stricken which would require the conclusion that the defendant violated the assured clear distance ahead statute. There is but a recitation of the fact that the parties were approaching the intersection where the collision occurred; that the plaintiff had stopped her automobile in the intersection without designating the *452exact place where she had stopped and that defendants driving a Chrysler crashed into the right side of the DeSoto. Indulging the presumption of due care on the part of the defendants we find no operative facts in that part of the petition which we are now discussing which invokes the application of §6307-21 GC. Manifestly, the pleader had no purpose to charge a negligent act up to the language objected to by the motion because thereafter he sets out what he asserts constitute the specifications of negligence. There may be some question if the language stricken is a charge of violation of the assured clear distance ahead statute, although it may be so construed; without it there is, in my judgment, no such averment.
The court erred in striking from the third specification the averment “and failed to check their speed” and “after becoming aware of the peril of the impending collision.” The averment “after becoming aware of the peril of the impending collision” is material to the stating of a cause of action and the language in its entirety conforms closely enough to the fifth syllabus of Morris v. Bloomgren, 127 Oh St 148, to be good as against the motion to strike.
I also concur in the reversal of the judgment in dismissing the defendant Industrial Nucleonics Corporation.