#### The State of Ohio, Appellee, *v.*Cheatwood, Appellant.

*126(No. 4190

Decided October 4, 1948.)

*Mr. Ralph J. Bartlett,*prosecuting attorney, *Mr. T. Vincent Martin*and *Mr. Edmund B. Paxton,*for appellee.

*Mr. William L. Maugan, Mr. Arthur W. Wiles*and *Mr. Edivard F. Lynch,*for appellant.

By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county on the verdict of a jury finding the defendant guilty of manslaughter in the second degree.

*127The defendant was indicted on six counts. In the first •count it was charged that the defendant “while operating a motor vehicle without due regard for the safety and rights of others and so as to endanger the life, limb or property of other persons in the lawful use of the streets and highways, did unlawfully and unintentionally kill one Lillian Held,” etc.

In the second count it was charged that the defendant “while operating a motor vehicle upon the streets and highways at a speed greater than is reasonable and proper, having due regard to the traffic, surface, and width of the streets and highways, and other conditions then existent, and while operating a motor vehicle upon the streets and highways at a speed greater than would permit him, the said Glenn W. Cheatwood, to bring his motor vehicle to a stop within the assured clear distance ahead, did unlawfully and unintentionally kill one Lillian Held,” etc.

In the third and fourth counts, defendant was charged with the killing of Pearl Clutter and, in the fifth and sixth counts, with the killing of Lenore Held.

The third and fifth counts charged the same offense as was charged in the first count. The fourth and sixth counts charged the same offense as was charged in the second count.

The jury found the defendant guilty as charged in the second, fourth and sixth counts and not guilty as ■charged in the first, third and fifth counts.

The deaths of the three persons occurred when the automobile which the defendant was driving and in which the three deceased persons were riding collided with the abutment of a bridge on the Groveport pike in Franklin county, Ohio, at about midnight on November 7,1947.

The defendant was charged with manslaughter in the second degree, under Section 6307-18, General *128Code. In the first, third and fifth counts the defendant was charged with a traffic violation, under the provisions of Section 6307-20, General Code, and in the second, fourth and sixth counts, on which he was found guilty, the defendant was charged with a traffic violation, under the provisions of Section 6307-21, General Code.

We find no misjoinder of counts in the indictment;, neither was the defendant put in double jeopardy as claimed. It is contended that if the counts were properly joined the court erred in sentencing the defendant on three counts of manslaughter in the second' degree. The defendant was found guilty of killing three persons, one in the second count, another in the-fourth count and still another in the sixth count. Three-persons were killed and the defendant committed an unlawful act which resulted in the death of those three persons. The court acted properly in sentencing-the defendant on each count, the sentences to run concurrently.

The defendant contends the court erred in not permitting the defendant to introduce evidence that the-acts of the defendant were not the proximate cause-of the deaths of the decedents. The defendant called a traffic engineer as a witness who offered testimony which in substance tended to prove that a driver of a motor vehicle in approaching the bridge met with a traffic hazard due to a sharp curve in the highway and the narrowness of the bridge; that the curve could not be taken at a rate of speed of 50 miles per hour; that the highway at that point could be safely traveled at a rate of speed of 30 miles per hour; and that an automobile traveling at 45 to 50 miles per hour under certain conditions could not be brought to a stop under 363 feet. This testimony was offered and objection to its admission being sustained, proffer was made. *129The defendant sought to introduce this evidence to show a defect in the highway and that because of such traffic hazard the act of the defendant was not the proximate cause of the deaths of the decedents. Assuming there was a defect in the highway which created a traffic hazard, such defect or hazard was a condition of the highway which must be observed and would require every motorist to operate his motor vehicle accordingly. Section 6307-21, General Code, in part provides that “no person shall operate a motor vehicle * * * in and upon the streets and highways at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface and width of the street or highway and of any other conditions then existing.” Every motorist uses the highways as constructed and with whatever defects exist, subject to the perils which may arise. The fact that a traffic hazard exists does not furnish legal justification to a motorist to travel at a speed which is not “reasonable or proper, having due regard to the traffic, surface and width of the street or highway and of any other conditions then existing.” This evidence was inadmissible on this issue. If admitted the probative effect of such evidence would have been to show the defendant did not operate his automobile with ordinary care and did not observe the traffic laws of the state. The exclusion of such evidence was not prejudicial to the defendant.

The defendant assigns as error that the verdict of the jury is contrary to law and was not sustained by any evidence. The court charged the jury on the “assured-clear-distance-ahead” rule. The contention is made that the “assured-clear-distance-ahead” provision of Section 6307-21, General Code, had no application.

Section 6307-21, General Code, in part, provides:

*130“* * * and no person shall drive any motor vehicle * * * in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead.”

The defendant contends that there was no obstruction in the highway with which the defendant collided; that the abutment of the bridge with which the defendant collided was not in his lane' of travel and, therefore, the “assured-clear-distance-ahead” provision had no application under the definition given to that expression by our Supreme Court in the second paragraph of the syllabus in *Smiley*v. *Arrow Spring Bed Co.,*138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960, which held:

“2. To comply with the assured-clear-distance-ahead provision of Section 12603, General Code, the driver of a motor vehicle must not operate it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a *discernible object obstructing Ms path or line of travel,*unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance, within such clear distance ahead and into his path or line of travel, of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.” (Emphasis ours.)

However, the court in that case, on page 83, said:

“In.the later cases of *Gumley, Admr.,*v. *Cowman,*129 Ohio St., 36, 193 N. E., 627, decided in 1934, and *Kormos*v. *Cleveland Retail Credit Men’s Co.,*131 Ohio St., 471, 3 N. E. (2d), 427, decided in 1936, wherein the drivers of automobiles in the nighttime had crashed into motor vehicles on the highway ahead of them, this court held that each automobile driver had violated the statute in operating his automobile at a speed greater than would permit him to bring it to a stop *131within the distance at which he could see a discernible object obstructing his path. This court in those cases also held that the assured-clear-distance-ahead provision of the statute is a specific requirement of law, a violation of which constitutes negligence per se. The ‘assured clear distance ahead,’ as used in the statute, must be the distance or space between the motor vehicle of the motorist and *any discernible obstruction or any limit of vision ahead of him on the highway.*For example, if a train of cars is standing across the highway immediately ahead of the motorist, the distance between himself and the train of cars is the assured clear distance ahead. *If his view is cut off by darkness, by a curve in the highway, or by the crest of a hill, the distance between him and the point where his vision ends or is cut off is the assured clear distance ahead.*The requirement of the statute is that the motor vehicle be so operated that, at any instant, it can be stopped within such assured clear distance ahead.” (Emphasis ours.)

In the discussion of that question it is evident that the Supreme Court announced a principle broader in scope than that stated in the syllabus.

In *O’Mara*v. *Goodsite,*16 Ohio Law Abs., 139, it was held that the rule would not apply “in an action for injuries sustained- when an automobile in which the plaintiff was riding- collided with a girder of a bridge not in, or'a part of, the traveled part of the bridge, but adjacent thereto, adjoining the sidewalk on the bridge.” In the statement of the facts in that case, which is very meager, there is no mention of a curve in the highway or of any obstruction to the view of the motorist and, hence, that case is distinguishable on the facts.

We are not disposed to hold that the assured clear distance ahead is always the distance between the mo*132tor vehicle of the motorist and some discernible obstruction in the lane of travel of such motorist. As stated by the Supreme Court, the view of the motorist may be cut off by darkness, by a curve in the highway, or by the crest of a hill. In such case, the distance between the motorist and the point where his vision ends or is cut off is the assured clear distance ahead. Under such circumstances a discernible obstruction may or may not be found in the lane of travel. The specific requirement of the statute is that the motor vehicle be so operated that it can be stopped within the distance between the motor vehicle and the point where the view of the highway is cut off or where a discernible object is found in the lane of travel of the motorist. The offense mentioned in the statute is the improper operation of the motor vehicle and not the collision with a discernible obstruction in the lane of travel of such motor vehicle.

In the case at bar the existence of a sharp curve in the highway, not the bridge or the abutment of the bridge, requires the application of the rule. By reason of the curve, the view of the traveled portion of the highway was cut off and, under the rule, the defendant was required to operate his motor vehicle at such a speed that it could be brought to a stop within the seeable distance.

At no time during the trial did the defendant contend that the assured-clear-distance-ahead provision of the statute had no application. It is apparent from the record that the defendant sought to show a justifiable legal excuse for a noncompliance with this statutory provision. The court in charging on the application of the assured-clear-distance-ahead provision followed closely the rule laid down in the *Smiley case.*

The defendant did not introduce or proffer any evidence which would bring his case within an exception to the rule or present a justifiable legal excuse.

*133However, in the case at bar the verdict can and must be sustained on the ground that the second, fourth and sixth counts, under which the defendant was found guilty, charged the defendant with a violation of the first provision of Section 6307-21, General Code, which is-:

“No person shall operate a motor vehicle, * * * in and upon the streets and highwáys at a speed greater -or less than is reasonable or proper, having due regard to the traffic, surface and width of the street or highway and of any other conditions then existing.”

There was evidence of a substantial character to the effect that the defendant operated his motor vehicle at a rate of speed considerably greater than 50 miles per hour. There was ample evidence from which the jury could find that the defendant had violated the provision of the traffic law above quoted.

The defendant contends that there were no traffic signs cautioning the driver of a motor vehicle of the •existence of a traffic hazard. Again we conclude that the failure of the proper authority to erect suitable and -effective warning signs does not relieve the motorist ■of the duty to observe the traffic laws applicable to the situation. In the same category is the refusal to admit in evidence rules and regulations of the highway director relative to the erection of signs.

The record does not show any error committed on the cross-examination of the defendant on collateral matters. An effort was made by the state to impeach the defendant on a collateral and immaterial matter. Counsel for defendant interposed an objection which was sustained.

The record shows that the court interrogated a witness called by the state. The witness had been questioned relative to the speed of the defendant’s automobile as it passed the witness and immediately before *134the accident. A comparison was attempted to be made-between the speed of the defendant’s automobile and. the speed of the automobile which the witness was driving. At this point an argument took place between.counsel. The court then questioned the witness and. drew from him a statement that the defendant’s automobile was being operated at a speed of over 70 miles per hour. We find no abuse of discretion on the part of the court in interrogating the witness, in view of the-state of the record.

The defendant assigns as error the failure of the-trial court to give three special instructions before argument. The provision of Section 13442-8, General-Code (formerly Section 13675, General Code), relative-to the giving of requested instructions before argument in trials of criminal cases, is discretionary and not mandatory. If the requested instructions are proper they should be incorporated in the general charge. *Wertenberger*v. *State,*99 Ohio St., 353, 124 N. E., 243; *Grossweiler*v. *State,*113 Ohio St., 46, 148 N. E., 89; *State*v. *Houser,*73 Ohio App., 115, 55 N. E. (2d), 273; *State*v. *Weger,*25 Ohio Law Abs., 49. The-defendant requested the court to give four special instructions before argument. The court gave instruction No. 1 and refused to give instructions Nos. 2, 3- and 4. The record shows that requested instructions-Nos. 2 and 4 were completely covered by the general charge. Instruction No. 3 related to the failure to erect signs on the highway at or near the place of the accident, according to the Ohio Manual of Traffic Control. This instruction was not covered by the general charge,, and rightly so, as this matter had no bearing on the-issues in this case.

We find no prejudicial error committed in overruling the defendant’s motion to dismiss at the close-of all the evidence and in overruling defendant’s mo*135tion for a directed verdict. Neither do we find any terror in the record relative to the rulings of the court •during argument of counsel, nor in the general charge.

As we find no prejudicial error in the record, the .judgment is affirmed.

*Judgment affirmed.*

Wiseman, P. J., Miller and Hornbeck, JJ., concur.