LIABILITY FOR. INJURY FROM AUTOMOBILE TRAVELING AT EXCESSIVE SPEED.

Court of Appeals for Fayette County.

#### Allen v. Smith.

Decided, May 17, 1916.

*Negligence per se—Where Speed Law Was Violated-by Automobile and Accident Occurred—Provisions of Section 8490, Revised Statutes, Applied—Charge of Jury—Duty of Vehicles Meeting on Roads.*

1. Violation of the state law limiting the rate of 'speed for motor vehicles to twenty miles per hour upon public highways, is negligence *per se.*

2. Section 3490, Revised Statutes, requiring automobiles and motor vehicles when meeting carriages and vehicles to give two-thirds of the road, is valid and should be applied at least in' all cases where the roadway is of sufficient width to permit its application with safety.

3. In a case where the evidence shows ample width of road to permit the passage of- vehicles, a charge to the jury that it was the duty of the defendant on meeting plaintiff to give the statutory portion of the road, “if he could do so with safety to himself and the others then traveling with him,” is misleading and erroneous.

*John Logan*and *H. U. Sanderson,*for plaintiff in error. • *Post & Reid,*contra.

Allread, J.

On February 5, 1910, Frank M. Allen brought the original action for damages for personal injuries alleged to have been caused by the negligence of the defendant, T. T. Smith, in operating his automobile. The accident complained of occurred upon the public highway December 2, 1909. Plaintiff with a horse and buggy approached from one direction and defendant with his automobile from the opposite direction. Plaintiff’s horse took fright as the automobile passed, resulting in the upsetting of the buggy and the injury to plaintiff. ■

*204Before issues were joined by tbe pleadings tbe case was taken to the Supreme Court, which reversed the judgments of the lower courts and remanded the case for trial, accompanying its decision with the opinion appearing in 84 Ohio St., 283.

The negligence charged against the driver of the automobile, briefly stated, consisted of:

1. Speed in excess of twenty miles per hour.

2. Failure to give two-thirds of the road.

3. Excessive speed and failure to use due care under the circumstances.

The answer contained a denial of negligence and a charge of contributory negligence.

The case was tried to the court and jury, resulting in a verdict and judgment for the defendant.

N motion for a new trial having been overruled, a bill of exceptions was taken and the case brought to this court upon petition in error.

'The trial court, in the. general charge, gave the following:

“While the driving of an automobile at a greater rate of speed than twenty miles an hour is in violation of the statute of this state and would subject the offender to criminal prosecution, still driving above the prescribed rate of speed is not negligence of such character as of itself to create a liability in damages ; proof of driving a motor vehicle at a greater rate of speed than allowed by statute is competent to be considered by the jury in connection with all the other proofs as tending to show negligence. So that if you find from the evidence that at and immediately before the instant of passing Allen’s vehicle, Smith was driving in excess of the statutory rate- of speed, you should consider and give the fact such weight toward establishing the charge of negligencia against Smith as you deem it entitled to in view of all the testimony in the case.”

This instruction is erroneous in view of the recent case of *Schell*v. *DuBois, Admr.,*94 Ohio St., 93.

The violation of the statutory regulation as to speed is now considered negligence *per se,*and it only remained for the plaintiff to prove that such negligence was the proximate cause of the injury.

*205The court further charged the jury as follows:

.“It was the duty of the defendant on meeting plaintiff to turn his automobile to his—defendant’s—right of the center line of the road, that is, in the direction of and towards the westerly side of said road so as to afford the plaintiff sufficient passageway for plaintiff’s horse and buggy if -he could do so with .safety to himself and the other’s then traveling with him.-”

;-Tliis may be considered in connection with special charge No. 4, to the same effect, given before argument.

Section 3490, Revised Statutes, provides: . . .

“All persons driving carriages or vehicles'of any description on any public turnpike, road or highway of this state, shall, on meeting. carriages or vehicles of any description keep to the right so as to leave half of the road free, and all persons riding on horseback, or on bicycle, tricycle, tandem bicycle, locomobile, automobile, or motor vehicle, shall, on meeting carriages or vehicles of any description, keep to the right so as to leave two-thirds of the road free.”

The trial court evidently took the view that the concluding clause above quoted, requiring automobiles to give two-thirds of the road, was invalid, as the charge proceeds upon the theory that the driver of the automobile was required to give only one-half of the road. Counsel for defendant in error defend the court’s charge upon the theory that it would be impracticable and impossible in many instances to give two-thirds of the road, and that the statute in that respect is for that reason invalid. We can not, however, bring ourselves to that conclusion.

'The control of the highways is largely legislative. Automobiles are of recent origin, and their use - adds greatly to the dangers of travel. There is no such inherent right in the owner of an automobile to the unrestricted use of a highway as would prevent the Legislature from requiring the user of an automobile-in passing vehicles to give two-thirds of the road.

•It is a matter of common knowledge that automobiles are generally driven at a higher speed than horse-drawn vehicles, and are more easily controlled.

*206The noise and appearance of the - automobile being liable to frighten horses, it is important that the automobile be kept at a reasbnable distance, so as to give the driver of the horse a better chance to pass in safety.

It is urged,-however,, as the highways of the state are at some points so narrow as to interfere with the application and enforcement of the statute, that the law itself should be held invalid.

The court will, however, take judicial notice that the highways of thb state are generally so constructed as to permit the enforcement of the statute. The contention .of counsel, that the entire act should be held void because at some places the roadway may be too narrow, could as reasonably be extended to a provision requiring the giving of half the road, and thus the law .of the- road, would be left to' the will and pleasure of the driver of the more powerful vehicle.

It is customary at.points where the' roadway is too narrow for safe passage of vehicles, or of a vehicle and an automobile, for the driver of one to slow down, and, if need be, stop, so' as to allow the other to pass over the narrow place. It is also customary in cases where there is a considerable stretch of narrow road-to adopt a somewhat similar method to facilitate the safe passage of both vehicles.

While it is probable that the strict letter of the statute could •not be followed, and would not be enforced by the courts in a case where the roadway was too narrow to permit the rigid enforcement of the statute, yet we are clearly of the opinion that the statute requiring automobiles to give two-thirds of the road as against the driver of a vehi.ele should not be ignored - or held invalid, but' should be enforced in all cases where the width and condition of the road make it practicable and safe. - .. Mere inconvenience in-the application and enforcement of a statute is not a sufficient reason for- declaring it invalid. .-The wisdom and policy of a statute is for‘the Legislature to determine, although the question of the inconvenience of its application .maj^ affect its - construction. *Moore*v. *Given,*39 Ohio St., 661.

*207■ There was evidence in the case at bar tending to show that the improved and usable roadway was in the neighborhood of twenty feet.wide, at the point where the plaintiff’s injuries were alleged to have occurred.

One-third of the roadway reserved to the use of the automobile would be six and two-thirds feet, which was ample under the evidence to allow for the safe passage of the automobile.

We think, under the circumstances, therefore, the trial court was not justified in ignoring the statute requiring the driver of the automobile to give two-thirds of the road.

There was evidence tending to prove that the defendant in passing the plaintiff’s vehicle failed to give two-thirds of the road, and on the contrary so kept the main part of the road as to crowd the plaintiff with his horse off the improved roadway, in such manner that the horse, frightened by the sudden and close passage of the automobile and the cloud of dust following the1 automobile,'jumped sidewise into the ditch and overturned the buggy in which plaintiff was riding.

There was evidence introduced by plaintiff tending to- prove that the plaintiff’s horse was gentle, thoroughly broken and used do automobiles. It is claimed on behalf of plaintiff that the fright of the horse was due to the excessive speed of the defendant and the driving of his'automobile-so near to the horse that the plaintiff was unable to control the horse in the narrow portion of the roadway which the driver of the automobile had allowed' him. . ' '

■ The' petition having charged as a ground of negligence that the defendant failed to' give two-thirds of the roadway, - this issue should have been submitted to the jury under proper instructions.

We-think'the court was also in error in instructing the jury, in substance, that'the'driver of the automobile was required to give only one-half of the roadway, “if he could do so with safety to himself and the- others then traveling with him.” This instruction would give the driver and the occupants of the automobile a superior right of safety, even though the condition of *208danger.might have been caused exclusively by the negligence of the driver of the automobile. ■ \ . ......■

The driver and occupants of the automobile, and the driver of the vehicle', in the case at bar, had equal rights.- The safety .of .the former could not be -made a paramount consideration. The.driver of the automobile must, exercise reasonable- care, not only for the benefit .of the occupants of his own car but as well for the.driver and occupants of other vehicles upon the roadway. We think that it was erroneous, therefore, to instruct the jury that the driver of! the automobile was bound to give one-half the road .only -in ease he could do, so. in safety to himself, and the occupants of his car. 1

; . It is!contended -on. behalf of defendant in error that notwithstanding the-errors in the 'charge; -the judgment of the court of common pleas should:be affirmed under Section' 11364, General.Code. We. have-carefully considered this-contention. 'The evidence tending to prove negligence on.the part of-deféndant Avas, in our judgment, sufficient to require the case to go to the jury upon that issue.

There, is evidence tending to show contributory negligence upon the part .of ■ plaintiff. This evidence was not uncohtradicted. Upon the contrary, there .was-a sharp'conflict of evidence upon the subject of contributory negligence. We think that the case, both as to contributory negligence and contributory negligence, should have been submitted to the jury, and Avas of such a nature that this court would not be justified in holding affirmatively that the substantial justice of the case was so clearly in favor of the defendant in error as to require an affirmance of the -judgment notwithstanding the errors in the charge.

We find no other prejudicial errors except those specified.

Judgment reversed, and cause remanded for a new trial.

' Ferneding, J., and Kunkle, J.; concur.