#### Hangen, a Minor, Appellee, *v.*Hadfield, Appellant.

(Decided March 12, 1938.)

*94*Messrs. Goubeaux & Goubeaux,*for appellee.

*Messrs. Maher & Marchal,*for appellant.

Geiger, J.

On January 16, 1937, at about ten o’clock in the morning a collision occurred between the cars of the plaintiff and defendant, near the brow of what is known as the Bisley Hill on the Pittsburg-Laura road in Darke county. A trial of the issues was had before a jury. At the end of the plaintiff’s testimony a motion was interposed for an instructed verdict on behalf of the defendant, which was overruled, and, on being repeated after all the evidence, was again overruled. The jury found in favor of the plaintiff awarding the entire amount asked in the petition. Motion for new trial was made and overruled and the case is before this court for review on questions of law. Counsel for defendant in their brief before this court set out 16 errors complained of. As is usual in cases of this character the evidence slibmitted was conflicting, but we do not find that the court erred in refusing to instruct the verdict. It was eminently a case for the consideration and determination of the jury. We have carefully gone over the evidence. While there is conflict, we think a fair picture of the case is that on the day in question the plaintiff was driving his car eastward at a speed of approximately 45 miles an hour, ascending Bisley Hill where his vision was obstructed by the brow of the hill. He was traveling on the south or his right-hand side of the road. As he reached the crest of the hill he detected the defendant’s car coming west, at a distance of about 200 feet, on the south side of the center line of the road. The defendant had passed a boy riding Ms bicycle along the edge of the road. This caused him to swerve from the north to the south or his left-hand side of the road. Whether he had recovered his position on the north side of the road before the collision is a matter of controversy. When the plaintiff, driving east, saw the *95car of the defendant on the south side of the road he put on his brakes which caused his' car to skid to the northeast for about 30 feet. In skidding, he appears to have crossed the center line to his left-hand side of the road. The defendant in the meantime was endeavoring to recover his proper position on the north side of the center line and to stop his car before the impending impact. His car also skidded and the two came in contact damaging both cars and injuring the plaintiff. The plaintiff’s car, from the damage resulting, seems to have been struck on its right-hand side, while the defendant’s car was damaged on the left side. After the impact the defendant’s car proceeded a short distance, about five feet, before coming to rest, while the plaintiff’s car was' turned completely around and headed westward, coming to repose with one front wheel in a ditch along the south side of the road and the remaining wheels on the south edge of the Tarvia roadway.

The accident occurred about ten o’clock in the morning on a sixteen-foot, Tarvia-surfaced highway which was then dry.

The assertion is made that the plaintiff was guilty of contributory negligence proximately contributing to the injuries complained of. It is pointed out that his car was proceeding up the hill at the rate of from 45 to 50 miles per hour. Whether this was negligence is a question of fact to be determined by the jury, rather than a question of law. To ascend a hill on a well-surfaced highway at the rate of 45 miles per hour is not, in our judgment, negligence *per se,*nor does it necessarily, under the facts disclosed, constitute a high and dangerous rate of speed. It is true that the brow of the hill obstructed the view beyond, but the plaintiff had a right to assume that anyone approaching from the east would do so on the north side of the road and he was not obliged to anticipate that when he arrived at the top of the hill he would find the defend*96ant’s car obstructing Ms progress. The defendant owed a duty when he approached the brow of the hill from the east to keep on the north or his' right-hand side of the road until he could have an unobstructed view of the veMeles that might be approacMng from the west on the south side of the roadway.

It is asserted by defendant that the court erred in instructing the jury relative to the first ground of contributory negligence. It is claimed that the rule as' given by the court in its general charge is erroneous and prejudicial.

In the general charge the court stated that the law provides that no person shall drive any motor veMcle in or upon a public road or highway at a greater speed than will permit Mm to bring it to a stop within the assured clear distance ahead. The court charged:

> “The statutory provision is that a person must keep Ms car under such control as' will enable Mm to stop witMn the assured clear distance ahead. ** * **The plaintiff * * * was entitled in the absence of any visible sign of danger, to assume that the road was free from obstruction uMawfully created by the defendant and to act upon that assumption as' fully as when the facts assumed could be seen. Nothing in the code requires him to assume the contrary.”

This charge is amply supported by the opinion in *Sidle*v. *Baker,*52 Ohio App., 89, 3 N. E. (2d), 537. The third paragraph of the syllabus is as follows:

> “A user of the highways may assume, unless and until he has knowledge to the contrary, that other users of the highways will use them in a lawful manner, and, until he has stich knowledge, he is entitled to govern Ms actions in accordance with that assumption.”

Of all the cases we have examined involving the assured clear distance ahead statute, tMs is one most nearly approaching the case at bar. It is a “ Mil ’ ’ case. Pew of the other cases involved Mils. The court says on page 93:

> *97“As this plaintiff approached the brow of Ports Hill, he owed to the defendant no duty to discover from that position the presence of defendant’s automobile, parked out of sight upon the other side of the summit of said hill. He was not required to see what could not be seen by looking.”

We have read that case with care and find it interesting and instructive and we believe that it correctly states the governing law and supports the charge as given by the court. This court, in the case of *Hess*v. *Kroger Grocery & Baking Co.,*17 Ohio Law Abs., 225, had occasion to consider this statute and in doing so reviewed the then extant cases touching the same question. This case supports the charge of the court.

It is necessary, however, that we ascertain the position of the Supreme Court in its more recent pronouncements.

The first case is *Skinner*v. *Pennsylvania Rd. Co.,*127 Ohio St., 69, 186 N. E., 722. In this case it is held that the “language of Section 12603 * * * is a specific requirement of law, a violation of which constitutes negligence *per se.”*A recovery was sought for damages resulting from a collision between an automobile and a freight train crossing a highway. The court, through Chief Justice Weygandt, states: “It is the opinion of this court that the new language of this section is' plain and unambiguous.”

The court holds that the driving of an automobile through the rain, mist and fog at a speed of approximately 40 miles per hour was negligence as a matter of law and proximately caused the collision, and the plaintiff was held guilty of contributory negligence preventing a recovery.

In the case of *Gumley, Admr.,*v. *Cowman,*129 Ohio St., 36, 193 N. E., 627, the case of *Skinner*v. *Rd. Co.*was approved and followed and the court held that the requirement establishes’ a subjective test whereby a driver is prohibited from operating a vehicle at a *98rate greater than will permit him to bring it to a stop within the'distance *“at which he com see a discernible object obstructing Ms path.”*(Italics ours.) In this case the driver, on a foggy and rainy morning while it was still dark, and proceeding at thirty to thirty-five miles an hour, suddenly discerned the rear of the defendant’s truck, five or ten feet ahead, under such circumstances that it was impossible for Gumley (the driver) to stop. A collision resulted causing injury to one and death to another of the occupants of the car. At the conclusion of plaintiff’s evidence the court granted the defendant’s motion for directed verdict, which action was affirmed by the Court of Appeals and the Supreme Court. The court states in announcing the opinion through Chief Justice Weygandt that “on the question of’ contributory negligence the lower courts held that the plaintiff’s evidence was susceptible of no other reasonable interpretation than that the decedent was himself a factor in the collision by violating the provision of Section 12603,” and that such violation was the proximate caus'e of the collision and injury. The court points out the matters in which the case parallels that of *Skinner*v. *Rd. Co., supra,*and states that the question of proximate cause requires an answer too obvious to justify discus'sion.

The court, in answering the contention of the plaintiff that the court had given the statutes an interpretation under which there could never be a recovery by a driver of an automobile that collides with an object in its path, in other words, that the single fact that an automobile collides with anything ahead of it would be considered aS evidence of negligence upon the part of the driver, stated:

> “This court entertains' no such views as to the intention of the Legislature in enacting this amendment. * * * The Legislature ,did not intend to require drivers to do the impossible. Collisions of this sort may still occur despite the exercise of due care. * * * *99and under proper circumstances the questions of proximate cause and negligence on the part of such driver must be submitted to the jury. * * the present legislative requirement establishes a subjective test whereby a driver is prohibited from operating any motor vehicle * * * at a rate of speed greater than will permit him to bring it to a stop within the distance at which he can see a discernible object obstructing his path.”

In the case of *Kormos*v. *Cleveland Retail Credit Men’s Co.,*131 Ohio St., 471, 3 N. E. *(2d),*427, it is held that motor cars, whether driven or parked, and whether mud-spattered or covered with an accumulation of dirt, are substantial, discernible objects within the purview of the section, that it is the duty of drivers to equip their vehicles with sufficient headlights to show such object ahead of them at a distance of at least 200 feet, and that “an operator who has failed to comply with the ‘assured clear distance’ statute may excuse such failure and avoid the legal imputation of negligence *per se*by establishing that, without his fault, and because of circumstances over which he had no control, compliance with the law was rendered impossible.”

The court holds that under the circumstances of that case the driver had been guilty of contributory negligence and that the court should have sustained the defendant’s motion for a directed verdict. There is' reference made to legal excuses, the principles of which are discussed.

The next case, *Higbee Co.*v. *Lindemann,*131 Ohio St., 479, 3 N. E. (2d), 426, holds that a driver coming into collision with the rear of a stopped truck which she had followed for a few hundred feet was in manifest violation of Section 12603, General Code, in the operation of her automobile and that, upon the showing in that case, a verdict should have been directed against her.

*100We gather from these decisions of the Supreme Court that one of the important questions is whether the object in the pathway of the driver is discernible and also whether the driver who has failed to comply with the “assured clear distance” statute may excuse slich failure and avoid the imputation of negligence *per se*by establishing that, without his fault, and because of circumstances over which he had no control, compliance with the law was rendered impossible. As we have already said, we are of the opinion that the plaintiff in this case was not negligent in proceeding up the hill at such a speed as the jury found did not constitute negligence under the speed statute, and that, in so doing, he had a right to anticipate that any driver approaching from the opposite side of the hill would observe the law and not obstruct his passage. Were it otherwise, a driver ascending a hill which obstructed his view would be guilty of contributory negligence if, when he arrived at such a point as to give bim a vision, he found the roadway obstructed by an illegally driven car, which he could not avoid, and collided with it. Such a rule would be intolerable. It is more intolerable when we consider that, where two cars are approaching from opposite directions at equal speed, the assured clear distance will be covered in half the time that would be consumed if one car was approaching a static object, and in less than half the time that would be consumed where the two cars were going in the same direction, the front car, however, going at a slower speed than the following car.

We feel that the cases of *Kormos*v. *Cleveland Retail Credit Men’s Co.*and *Higbee Co.*v. *Lindemann, supra,*impose a burden under the “assured clear distance ahead” statute beyond which we do not feel at liberty to go under the conditions of the present case.

The question remains as to what was the proximate cause of the accident. Was it the fact that the defendant’s car was on the wrong side of the road or was it *101the fact that the plaintiff improperly applied his brakes causing his car to skid after he had discovered the defendant’s car? The statement made by the plaintiff, which the jury had a right to believe, is, in substance, that when he arrived at the top of the hill he saw the defendant’s car about 250 feet away and about two feet from the south side of the road upon which he was traveling eastward, and that thereupon he pulled his right wheels off the Tarvia and applied the brakes.

“Q. What happened to your car when you applied your brakes? A. It threw it sideways. I skidded into him.

“Q. About how far would you say that you skidded? A. Around 30 feet.”

It is a disputed question as to the position of the two cars in reference to the center line of the road when the impact occurred. We feel that, under the conditions disclosed, the fact that the plaintiff’s car, after the application of the brakes, may have skidded to the left into the defendant’s oncoming car did not make the plaintiff guilty of contributory negligence, *per se.*This was a question for the determination of the jury.

The principle announced in *Pennsylvania Rd. Co.*v. *Snyder,*55 Ohio St., 342, 45 N. E., 559, 60 Am. St. Rep., 700, is still the law of Ohio, and seems to be applicable to this' situation:

> “When a person without Ms fault is placed in a situation of danger, he is not to be held to the exercise of the same care and circumspection that prudent persons would exercise where no danger is present; nor can it be said that, as [a] matter of law, he is guilty of contributory negligence because he fails to make the most judicious' choice between hazards presented, or would have escaped injury if he had chosen differently.”

Upon suddenly discovering defendant’s car obstructing his passage he was obliged to act quickly to avoid *102a collision. Most careful drivers would have done as he did, apply the brakes'. He might possibly have escaped the collision had he turned to his right further than he did and gone into the ditch on the right, but he was not obliged to do this. He might possibly have applied the brakes more gently and avoided skidding, but it may not be said that as a matter of law he was guilty of contributory negligence in so applying the brakes that the car skidded to his left.

We are of the opinion that it was Within the province of the jury to determine that the proximate cause of the collision was the position of the defendant’s car on the right of way of the plaintiff. There was no negligence *per se,*either in approaching the brow of the hill at the speed at which he was operating the car or in applying the brakes as he did. The whole situation was before the jury. The court properly charged both as to speed, right of way, proximate cause and contributory negligence. We are not disposed to disturb the ruling of the court below in overruling the motions for directed verdict and for new trial.

*Judgment affirmed.*

Barnes, P. J., and Hornbeck, J., concur.