#### Turckel, Appellant, *v.*Archer, a Minor, Appellee.

(No. 171

Decided March 22, 1948.)

*Mr. Ben West,*for appellant.

*Messrs. Nichols, Speidel & Nichols,*for appellee.

By the Court.

After the jury had returned a verdict for the plaintiff and judgment had been rendered thereon, the defendant filed a motion for a new trial and also for judgment notwithstanding the verdict. Upon hearing these motions, the court concluded that it had erred at the trial in overruling the defendant’s motion for an instructed verdict made at the close of the plaintiff’s evidence and renewed at the close of all the evidence, and for that reason set the judgment for the plaintiff aside and rendered judgment for the defendant. It is that judgment that is brought under review by this appeal.

The action is one to recover for damage done to the plaintiff’s automobile in a collision with an automobile operated by defendant.

When the evidence is construed most favorably to the plaintiff, as the trial court was required to do in passing upon the motion for judgment notwithstanding the verdict and as this court must do on this appeal, it shows that these two automobiles were approaching, from opposite directions, an abrupt turn (almost at a right angle) in a gravel road. The traveled portion of the road did not exceed ten feet in width with a narrow berm. There was, however, *279space for automobiles to pass one another. Owing to the presence of shubbery alongside the road, the view was obstructed, and, because 'of the bend, the forward view of a person entering the bend was limited to 15 feet.

Each automobile was going at from 20 to 30 miles per hour as it entered the turn and became visible to the operator of the other. The plaintiff was on his right side of the road and the defendant was on his left or wrong side.

The evidence is that the brakes on the plaintiff’s automobile were in normal condition, but there is no direct evidence as to the distance required to stop his automobile going at from 20 to 30 miles per hour. The occupants of the automobile were not injured.

The trial court found that the undisputed evidence in the case showed the plaintiff was guilty of negligence directly contributing to the collision and for that reason rendered judgment for the defendant, notwithstanding the verdict for the plaintiff.

In support of the action of the court, the defendant asserts that the undisputed evidence proves that the plaintiff was negligent as a matter of law, in that he violated that provision of Section 6307-21 (formerly Section 12603), General Code, by which it is provided that no person shall drive any motor vehicle in and upon any public road at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. This statute has been construed in many cases, including the case of *Smiley*v. *Arrow Spring Bed Co.,*138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960, and there is no doubt that its violation constitutes negligence as a matter of law.

But it must be conclusively proven or adjudged by the trier of the facts before a violation of the statute may be charged as negligence. In this case the jury was the trier of the facts, and it did not adjudge that *280the plaintiff had violated the statute. The action of the court can be supported only on the theory that the evidence conclusively proved a violation. Now is that position tenable? We think it is not.

As the plaintiff approached the bend in the road, he had a right to assume that no one would approach from the opposite direction on plaintiff’s side of the road and thereby cut down the distance within which he could stop his automobile. He, therefore, had' 15 feet as the assured clear distance in which to stop. He was going at the rate of from 20 to 30 miles per hour. There was no evidence that, going at that rate, he could or could not stop within that distance. We are, therefore, presented with a record which neither conclusively proves nor disproves a violation of the statute. Certainly, no conclusive inference of negligence arises from the evidence.

Assuming that the jurors were permitted to apply their general knowledge of the distance in which an automobile may be stopped (53 American Jurisprudence, 657, Section 913), that distance would necessarily vary according to differing conditions as determined by the jury. Certainly, it cannot be said as a matter of judicial knowledge that, under the circumstances, this automobile could not have been stopped within 15 feet.

The burden of proving contributory negligence rested upon the defendant, and, therefore, a failure of proof on the subject would not avail him.

For these reasons, the judgment is reversed, and the cause remanded with instructions to overrule the motion for judgment notwithstanding the verdict, and for further proceedings according to law.

*Judgment reversed.*

Matthews, P. J., Ross and Hildebrant, JJ., concur.