Dissenting Opinion.
Lairy, J.— I fully concur in the opinion of the majority of the court as to all questions decided except that part which holds that instruction No. 16 is a correct statement of the law applicable to the evidence in this case. If the opinion recognized the error in the instruction and held that the error was shown to have been harmless by the answers to the interrogatories, I would not be inclined to dissent, but I can not give my approval to the instruction in question. I do not think that it is a correct statement of a legal proposition, especially when applied to a state of facts such as is shown by the evidence in this ease.
Answers to interrogatories may be such as to show that an erroneous instruction did not prejudice the losing party in the particular case under consideration, but such answers can not aid the court in determining whether an instruction is correct or incorrect from a legal standpoint. For the purpose of determining whether a certain instruction is applica-' ble to the evidence, the court should look to the facts as disclosed by the evidence.
In this case the evidence shows without dispute that the *478motorcycle on which appellee was riding was going east on the south side of Twenty-fourth Street, approaching Bellefontaine Street, while the truck driven by the employe of defendant was going south on the west side of Bellefontaine Street approaching the intersection of Twenty-fourth Street, and that a collision occurred between the two vehicles at a point just east of the center line of Bellefontaine Street and just south of the center line of Twenty-fourth Street. It thus appears, that before the collision, the two vehicles were approaching the point where the lines upon which they were traveling would intersect at right angles. If the rates of speed at which the respective vehicles were moving, when considered in connection with the distance that each had to travel to< reach the point of intersection, were such as to bring them both to that point at, or so near the same time that neither would have a chance to clear the path of the other, there would certainly be a collision if both continued in the same direction and at the same speed, and if neither took any affirmative precaution to prevent it. There is some conflict in the evidence in this case as to the comparative distance of the two vehicles from the point of intersection as they approached and also as to the rate of speed at which they were moving. One witness states that the truck was sixty feet from the corner when the motorcycle was thirty feet from the corner, and that the truck was moving at the rate of fifteen to twenty miles an hour while the motorcycle was moving at the rate of eight miles an hour; another that the truck was moving at the rate of fifteen to eighteen miles an hour and the motorcycle at the rate of seven'to eight miles an hour. Appellee as a witness stated that he saw the truck sixty or seventy feet north of him and that he had about twenty feet to go, but he states that he did not know how fast the truck was running. Under this state of the evidence, it was certainly for the jury to determine as a question of fact whether a person of ordinary prudence, situated as appellee was and in view of the other conditions as dis*479closed by the evidence, would have foreseen or anticipated the danger of a collision. If there was danger of a collision and a person of ordinary prudence would have foreseen such danger under the existing circumstances, then ordinary care would require him to use reasonable precautions to prevent it. lie should not assume that the driver of the other vehicle would take the precautions necessary to avoid a collision and act upon that assumption, but he should take reasonable precautions himself.
The care which is required of a person who receives an injury, to absolve himself from the charge of contributory negligence is such as a person of ordinary prudence would have used under, existing circumstances to shield himself from danger. The danger against which such a person must use care to protect himself includes the'danger which may result from the negligent conduct of the party causing the injury. If he can assume in all cases that others will not be negligent he need not in any case use care to protect himself from the results of negligence on the part of others. The rule governing negligence is that a person must use reasonable prudence to foresee any danger likely to result, and he must use reasonable care under existing circumstances to guard against injury resulting from such danger. If he fails to use ordinary prudence to foresee danger, or if he neglects to use ordinary care to guard against injury from a danger which might have been reasonably anticipated, he is guilty of negligence, and this rule applies to contributory negligence as well as original negligence. The question then arises, Is a person required in the exercise of ordinary care to anticipate a danger resulting from the negligence of another? That must depend upon the circumstances. He is not required to exercise precautions to guard against such a danger when it could not be foreseen by the exercise of ordinary prudence, but if the danger arising from the negligence of another is known or if by the exercise of reasonable care, it might have been foreseen from conditions which were open *480and obvious, the rule is otherwise. Thera are cases at least where it would be a question of fact for the jury to say whether ordinary care would require a person to foresee and guard against such a danger. In such eases it is error to charge, as a matter of law, that a plaintiff has a right to assume that a defendant will exercise due care and that the plaintiff is not required to anticipate or to guard against any danger which may result from a want of due care on the part of the defendant. In case the danger is open and apparent and is of such a character that injury is likely to result unless one or the other or both take some affirmative precaution to prevent it, and where the attending circumstances are of such a nature that the requirement to take such affirmative precaution rests as much upon one party as upon the other, can it be said as a matter of law, that either party is not required to foresee and to guard against the danger which would result from the other party failing to take the precaution necessary to prevent it ? It may well be that a plaintiff is not required to anticipate that the defendant would be guilty of an affirmative act of negligence which would expose such plaintiff to a greater danger than that already apparent; but, if the danger already apparent is of. such a nature as to indicate that ordinary care requires the exercise o.f some affirmative precaution on the part of either the defendant or the plaintiff or both, in order to avoid the injury, the plaintiff can not assume that the defendant will take such affirmative precaution to prevent injury to him. Ordinary care on his part requires him to take similar precautions and he has no more right to assume that the other party will take them than such other party has to assume that he will do so.
The evidence in this case shows that immediately before the collision the two vehicles were approaching a common point, and the distance which each had to move to reach that point, and the rate at which each was moving as shown by the evidence was such as to justify the jury in finding *481that there was imminent clanger of a collision unless it was avoided by some precaution on the part of the driver of one or the other of such vehicles or of both. It was for th.e jury and not for the court to say whether such danger was imminent or apparent; and, if it was, it was error for the court to tell the jury in substance that each party had a right to assume that the other would exercise the precaution necessary to avoid the collision and that each had a right to act on such presumption. If two persons meeting under such circumstances, should both act on the law as thus stated, a collision would most likely occur. Ordinary care on the part of each of the drivers would require him, to slacken speed, change course, stop or to do whatever else a person of ordinary prudence would .have done under the circumstances to avoid the collision. In this ease it might well be that if the person in charge of the truck had made a reasonable use of these precautions, appellee might have crossed Bellefontaine Street in safety without resorting to any of them, and on the other hand if the driver of the truck had a right to assume that appellee would use reasonable care to prevent a collision by the timely use of the means at hand, it might not have been necessary for him to exercise such precautions, but if each had a right to assume that the other would obsérve the care and exercise the precautions necessary to prevent a collision, and if each acted upon such presumption, no precautions would be taken by either to prevent the collision. If a duty rests equally upon the two parties and each has a right to assume that it will be performed by the other, it is not likely that it will be performed by either. If the drivers of two vehicles meeting under the circumstances shown by the evidence of this case were to follow the law as indicated in instruction No. 16 and a collision resulted, either both would be guilty of negligence or neither would be guilty.
In actions by a servant against his master it is the law *482that a servant has a right to assume that the master has used ordinary care to provide a safe place for the servant to work and to furnish safe tools and appliances, but, even in such cases, it is held that the servant can not recover in a case where the danger occasioned by the master’s negligence is known to the servant or is so open and obvious that he should have known it by the exercise of due care.
Many cases are cited in the majority opinion in which the general statement is made that one person has a right to act upon the assumption that another will obey the law and exercise due care. Such expressions have been frequently made use of in judicial opinions by way of argument and in eases where the question involved here was not under consideration. These statements are generally correct when con'sidered in the light of the facts involved in the particular cases in which they occur, but it does not follow that the principle is one of universal application, or that it can apply to a state of facts such as we have in this case. In one or two of the cases cited, the question arose upon instructions, but the question directly presented in this case does not seem to have been considered or discussed in any of the cases cited.
The fact that appellee had passed beyond the center line of the street before the collision occurred, as shown by the answers to interrogatories, might have the effect of render-' ing the. instruction harmless in this case, but that could not cure the error in the instruction. If the driver of the truck could have avoided the collision by slowing its speed or by stopping it, and if appellee had a right to assume that he would use due care in these particulars, and if appellee had .a right to act upon such assumption without being chargeable with negligence, the .instruction would have applied even though the collision had occurred between the west curb and the center of Bellefontaine Street.
In view of the congested condition of many streets and highways and in view of the modern means of transportation employed, I am of the opinion that a person using streets *483and highways should be alert and that he should use such care for his own safety and the safety of others as a person of ordinary prudence would exercise under like circum- . stances, and that he can not rely solely on .the care that others may exercise for his safety. It is with regret that I am compelled to express my dissent, but the principle embodied in the instruction, when applied to such a ease as this, seems to’ be so subversive of justice that I can not permit its adoption by this court without a protest.
Morris, J., on consideration of petition for rehearing, concurs in the above dissenting opinion.
Note. — Reported In 108 N. E. 234; 109 N. E. 353. As to tlie law of tlie road, see 73 Am. Dec. 404; 13 Am. Rep. 135; 1 Ann. Cas. 104; 41 L. R. A. (N. g.) 322, 346. As to tlie question of negligence of operator of automobile under particular state of facts, see 1 L. R. A. (N. g.) 228. gee, also, under (1) 28’ Cyc. 49; 38 Cyc. 1927; (2) 28 Cyc. 1913 Anno. 47-new; 37 Cyc. 282; (3) 28 Cyc. 37; 37 Cyc. 272; (4) 29 Cyc. 650; (5, 6, 10) 28 Cyc. 27; 37 Cyc. 274; (8) 28 Cyc. 49; 37 Cyc. 283; (9) 38 Cyc. 1809; (11) 3S Cyc. 1782; (12) 3S Cyc. 1711.