#### Purdy, Admr., Appellee, *v.*Kerentoff, Appellant.

(No. 31711

Decided December 21, 1949.)

*393*Messrs. Smith & Ells,*for appellee.

*Messrs. Ritter & Boesel,*for .appellant.

*394Turner, J.

The question before us is whether either Mr. Purdy or his wife was guilty of contributory negligence as a matter of law.

It needs no citation of authority to establish that if Mrs. Purdy was guilty of negligence which was a proximate cause of her injury, no recovery may be had.

If Mr. Purdy was guilty of such contributory negligence, no recovery may be had in this case. (The allegations of the amended petition show that Mr. Purdy is the only heir and next of kin.) (See *Wolf, Admr.,*v. *Lake Erie & Western Ry. Co.,*55 Ohio St., 517, paragraph 3 of the syllabus, 45 N. E., 708.)

The weight of the evidence is not involved. It was the duty of the trial court to view the evidence and the' reasonable inference from it in the light most favorable to plaintiff.

In the case of *Wilkeson, Admr.,*v. *Erskine & Son, Inc.,*145 Ohio St., 218, 61 N. E. (2d), 201, we held:

> *“2.*Where a defendant, at the close of all the evidence, moves the court to direct a verdict in its favor,, the plaintiff is entitled to have the evidence construed most strongly in his favor. *(Hamden Lodge*v. *Ohio Fuel Gas Co.,*127 Ohio St., 469, approved and followed.)

> “3. Where, on the trial of a cause, substantial evidence has been introduced from which it might reasonably be concluded that defendant was guilty of negligence which was the proximate cause of plaintiff’s injury, the court may not sustain defendant’s motion to direct a verdict. The test is not whether the trial judge would set aside a verdict in favor of plaintiff on the weight of the evidence. *(Ibid.)”*

Under the circumstances of the instant case the trial' court should have taken into consideration that Mrs. Purdy had the right to assume that defendant would obey the law by keeping his car under such control as-would enable him to stop within the assured clear dis-*395lance ahead. (Section 6307-21, General' Code.) The evidence shows that twenty-five to thirty cars had passed Mrs. Purdy without injury to her prior to the accident and during the time she was helping her husband.

In the case of *Trentman*v. *Cox,*118 Ohio St., 247, 160 N. E., 715, it was held:

> *“2.*The failure of a pedestrian to anticipate negligence on the part of the driver of the automobile does not defeat an action for the injury sustained.”

We know of no statute requiring a motorist to park his car on either the right or left side of a country highway where there is no curb. Whether parking on the divider strip would constitute contributory negligence was a question of fact to be determined by the jury under all the evidence.

We call attention to Section 6307-64, General Code, and particularly to paragraph (b) thereof. Such section provides:

> “(a) Upon any highway outside of a business or residence district no person shall stop, park, or leave •standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed portion of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of two hundred feet in each direction upon such highway.

> “(b) This section shall' not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.”

*396Whether the facts in the instant case brought the driver of this disabled car within the exception was a jury question under the circumstances of this case.

The law question here is decided upon the facts of this particular case without intention of modifying the law as announced in previous cases.

Being of the opinion that plaintiff’s evidence, together with the reasonable inferences from it when construed most favorably for the plaintiff, does not show contributory negligence as a matter of law on the part of either Mr. or Mrs. Purdy, the judgment of the Court of Appeals should be and hereby is affirmed.

*Judgment affirmed.*

Weygandt, . C. J., Matthias, Hart, Zimmerman and Stewart, JJ., concur.

Taft, J.,

dissenting. As appears from the outline of the facts by the majority, the evidence most favorable to the plaintiff shows that (a) the right rear wheel of plaintiff’s car was about one foot on the paved portion of the highway so as to provide a good foundation for the bumper jack, (b) plaintiff was changing the right rear tire, and (c) plaintiff’s wife stood behind him and was directing the light on the tire.

If the bumper jack was on the pavement and the right rear wheel was only one foot on the pavement, then plaintiff would necessarily have to be to the west side of the rear wheel in order to be in a position to change the tire; or to the west side of the jack located on the pavement if his wife was standing behind him and facing east. If his wife was standing behind him facing east and directing her light-on the tire, she must have been even farther from the east side of the *397paved portion of the southbound lane. In other words, this “evidence most favorable to the plaintiff” would certainly not justify a jury in finding plaintiff’s wife any closer to the east edge of the paved portion of the southbound highway than three to four feet.

While plaintiff testified that his wife was only 1% feet out on the paved part of the highway, the jury would certainly not be justified in believing that she was only that distance out on the pavement if, as plaintiff testified, the jack was on the pavement, the wheel was one foot out from the edge of the pavement, his wife was standing behind plaintiff and he was letting the jack down.

However, even if plaintiff’s wife was only 1 *%*feet on the paved portion of the highway, here was a party standing with only a flashlight warning on the paved portion of a well-traveled highway at a time when it was dark. Applying the rule stated in paragraph three of the syllabus of *Hamden Lodge*v. *Ohio Fuel Gas*Co., cited by the majority, it seems to me that reasonable minds should reach no other conclusion than that decedent was not exercising that degree of care which an ordinarily reasonable and prudent person would exercise under the same or similar circumstances.

The majority states that the failure of a pedestrian to anticipate negligence of an automobile driver will not bar recovery for injury to such pedestrian. However, reliance on others to use due care is not due care when such reliance is accompanied by obvious and apparent danger. Automobiles traveling in a southerly direction had a right to use the paved portion of the highway upon which plaintiff’s wife was standing. She knew that and therefore knew that automobiles would use the portion. of the highway on which she was standing.