#### Stout, Appellant, *v.*Wagner, Appellee.

(No. 1976

Decided November 24, 1948.)

*Messrs. Matthews & Altich,*for appellant.

*Messrs. Harshman & Young,*for appellee.

Hornbeck, J.

Plaintiff appeals on questions of law *from*a judgment of the Common Pleas Court dismissing her petition, upon a verdict of a jury for the defendant.

The action was for personal injuries sustained by plaintiff when she was struck by an automobile driven by defendant. The collision occurred on the north crosswalk on South Main street, Dayton, Ohio, at the intersection of South Main and Fourth streets.

*474Plaintiff--¡was moving/, from the east, side-of: South Main street on the crosswalk, intending to cross, to. thg west side, of ..the street, defendant was moving, southwardly on South Main-street and approaching Fourth street, in the middle' strip' of a three-way lane in the west half of South Main street. The collision occurred after the plaintiff had reached a place on the crosswalk in front, or to the left side, of the left fender of defendant’s automobile.

The principal isstie' between the parties arises upon the respective obligation of each party in the situation presented at the time of impact.

Eight errors, are assigned, all of which except Nos. 7 and 8 may be encompassed under two headings; namely, (1) refusal to give certain special instructions before argument upon request of plaintiff and error in the general charge and (2) the giving.of special instruct tion No, 1 before argument upon request of defendant.

-. The case-made by the-plaintiff upon her testimony is not that which is pleaded in her petition. She stated, 32 times, that prior to.and- at the time she was struck she had the green traffic light in her favor; that she waited on the east side.of South- Main- street until the light changed to green, then stepped off the curb onto the street and.hurriedly.walked on the,crosswalk:across the street anc had almost,,attained, the; west-side ,of* the street when she was struck by defendant’s automobile. Thq re-fis, consistency,in her .statements because- site: had 17%;,seconds from.the, time the signal changed to green until,it. flashed amber, anclif §he had hurried she would; in probability, have reached the place where she. - was struck before the change,in the signal light;-to-amber. Had,she- ;so pleaded, she would have been- entitled, tcj have, her theory of-her case,presented to-the jury, al-t though other testimony from. her own. witness was not in accord with *hers. Painesville Utopia Theatre*Co. v. *475*Lautermilch;*118 Ohio St., 167, 160 N. E., 683; *Pope, Admx.,*v. *Mudge,*108 Ohio St., 192, 140 N. E., 501. Plaintiff, however, pleaded that • at the time she was walking in the crosswalk the traffic light exhibited a green signal for traffic and pedestrians proceeding westwardly; and “that when said traffic light changed to green for southbound traffic on Main street said defendant proceeded forward into said north crosswalk without permitting plaintiff to. proceed the- rest of the way across South Main street and struck her- with his automobile.”- That-is to say,:plaintiff pleaded-that, while she was moving on- the crosswalk and before .-she had completed her crossing to the -west, side of South Main street, the traffic light changed-to'.green for the defendant, and, therefore, because, of: the arrangement of the traffic signals, the light at-that time Was red for her. • .. - - i . . *■*

; T.he first specification of negligence, is.-the; failure of defendant, to. yield- the right- of .-way. to. plaintiff. ■ Com sistent with-.this claim, plaintiff presented four ...special instructions to the court which.she requeste.dfo be.given to.the jirry.before.argument,-alhof -whiehpN’os. 4,. 5, 6and.8, .were refused.. It as; asserted that-No. 8 was requested only, after Nos. 4:and- 5bad been.refused and, as we understand, would, not have been, urged but. for t-herefusal.- • -

The instructions requested are:

“4. If you find by a preponderance of the evidence that Mary Stout was walking across South Main street at Fourth street within the north crosswalk with the green signal of the traffic light, and that the traffic signal changed to green for southbound-traffic on. South Main-street, at. said time,-then, you are instructed that Robert Wagner was required .by. statute to..yield the right of way to her, and was legally-bound,-to permit her to proceed uninterruptedly' in a -lawful manner through the intersection.

*476• “5. If you find that Mary Stout had the ‘right of way’ while in the crosswalk then, I charge you as a matter of law, that in the absence of knowledge to the contrary, she had a right to expect and assume that Bobert Wagner would obey the law and yield to her such‘right of way.’

“6. If you find that Mary Stout had the ‘right of way’ while in the crosswalk and that defendant, Bobert Wagner, failed to yield it to her and such failure to yield the ‘right of way’ was the sole proximate cause of her injuries, if any, then, I instruct you as a matter of law that said Bobert Wagner was guilty of negligence and your verdict must be for the plaintiff and against the defendant. ’ ’

“8. If you find by a preponderance of the evidence that Mary Stout was walking across South Main street at Fourth street within the north crosswalk with the green signal of the traffic light in her favor, and that the traffic signal changed to green for southbound traffic on South Main street-while she was lawfully crossing said street-within said crosswalk, then you are instructed that Bobert Wagner was required by statute to yield the right of way to her and she had a statutory right to proceed uninterruptedly in a lawful manner in the direction in which she was moving in preference to the southbound automobile of Bobert Wagner and under such circumstances she would have a right to expect, in the absence of knowledge to the contrary, that Bobert Wagner would obey the law and yield the right of way to her. ’ ’

Defendant’s special charge No. 1, given at his request before argument, is:

“The court charges you that if you find that plaintiff, as she was proceeding across South Main street, did not use her senses of sight and hearing, or such care for her own safety as a reasonably prudent person *477would have done under the same or similar circumstances then plaintiff, Mary Stout, was negligent, and if you then further find that plaintiff’s own negligence directly caused or contributed in the slightest degree to cause the injuries and damages complained of, your verdict must be for the defendant.”

The court in its general charge in various places therein said to the jury, in substance, that at the time of the collision each of the parties had an equal right to the use of the highway and both were bound to exercise ordinary care for their own safety and for the safety of each other.

The court in refusing plaintiff’s requested special charges before argument, and in its general charge, followed the doctrine of the case of *Martinovich, a Minor,*v. *E. R. Jones*Co., 135 Ohio St., 137, 19 N. E. (2d), 952, and, if that case is controlling, the action of the court was correct.

It is urged by plaintiff that the rights of the parties here are controlled by Sections 6307-13 and 6307-45, General Code. These provisions of the Code were effective September 6, 1941, while the cited case was decided on March 15, 1939. The first and second paragraphs of the syllabus of that case read:

“1. In the absence of statute or ordinance so prescribing, there is not an absolute duty devolving upon the driver of a motor vehicle .standing at or approaching a street intersection, upon'receiving the green or ‘go’ signal of a traffic light-,do wait until one on the crosswalk is entirely out of the intersection before such driver may move into it. A charge to the jury imposing such absolute duty would be erroneous.

“ 2. A signal by automatic light or traffic policeman to proceed does not absolve, the driver of a motor vehicle from the duty to .exercise- ordinary care for the safety of pedestrians at -.a known street crossing. The *478eare/and caiition to-beiexereidéd' as to those in the ititeaw section; must be commensdrate with the existing danger-of;collision and consequentdn[jufyd’',

Inasmuch as we now have the statutes defining fights and obligations *of*those affected by traffic signals and their operation, which statute were notin effect when the cited case was decided, the narrow question is whether the terms of these; statutes change in and particular the rights of the parties as')declared; in! the adjudicationc.'.! The peftihént language' of Section ;@$07d IdyiG'eritefal'CQde^is

“Whenever traffic is controlled by traffic-control signals' .exhibitingthe •• wbf ds f ^p,:’: :i caution, ’ or ‘ stop,!’ i 'or exhibiting, 'different colored lights;-successively one 'alt a> time,'-Wt?'.the following colors only;shall be usedhnd shidderhis and lights! dhalli indícatcañd apply to'opeik ators; of; vehicled,o streetcars; 'anditriáckless'trolleys idinjpedestrians, as follows:

(a): Grfeeh¡al'oine’orilg@í;Vi/

¡ “•li/'-Bedestriana/'facing)!the! sj|giial¡ ¡.may proceed'! aeross the róádw''áy!>wi'thi.n¡'any! marked .or unmarked erbsswalk.-''

r‘f:2. All .other traffio'-fadiiig tMeisign'al except as! pro; vided under Sections;-35; and 56 may ¡proceed straight; through or ¡turn right'O'r left unless:® sign at such place prohibits either such turn; "But such traffic.shall yield the ■' right; of' way • to > .vehicles,’ - ¡streetcars ■ and' traeklesk trolleys' lawfully; within the intersection; and to pedestrians-¡lawfully within'aórpsBWalk.'atdhe time such signal i i s ■ exhibited'■

"* ** **

“(d) Red alone'o'i'ibstdjbi'.'Jov/

"* * *

-'.’V2.Í- All other traffic fácingthé; ¡signal shall stop; be-; fore entering the= intersection: and shall remain stahdd ing-i tmtil authorized -to; prpebed-by rs; traffic-contro 1 ' device. ’ ’

*479bnSection 630'7)49, CteneráH) Cbde\'($rbvidés :u!

. ¡;ffl(a) It shall: fee! fhe-iduit#I of the! (operator of (any: ves hicle->*i.* * to yieldithe ®lgM>io®.tway to. a pédéstriafflaivsH full# pros sing .'the!¡¡rbádwá# (' within¡ any crosswalk;-/o-t'i

mP;('b) Whenéber,'any iveliicle';-*i<'is-stopped) átr-a marked 'crosswalks?.' *ld at;an idtebseetion to pebipit la pedestrian to: cross! ithe: ¡roadway,! -the/ operator' of¡ ah# bther vehicle *?*f- 'approaching from, the rear sháll not overtake and pass:such,stopped'vehicle';* iris eiii

The testimony of plaintiff’s witness, Scott,:.was'tb the; effect that, /as: the; plaintiff .proceeded acr'obsith'é,-'intersection, when ¡she¡passed'¡the!. center thereof,his) aiftómobile was -stopped’¡on the.: bed'signal a very (short -distance from the-north: side-of-the crosswalk ¡just' Jó ■■the ¡west of a sáfety ■ zOné I bn., the -first'lane in! ithe;-west, há/lf! of 'Sonth: ¡Maikii strpét; ihnd that whfens plaintiff, ivas btnudo ¡she .had ipafefeedothis.i fiistf aútomobilé ¡áridi iprobí •a-My! hadltakeh cohevstepotb theuwés.tbwdp.eib¡the¡si^nái changed to greé'ñ.ifor¡ liina,5 ándt'kéref ore, gbeén- ifidr¡ ithíé -defendant. . At ¡that momterit defendant,-whose (autdnio^ bilfe the petitiohca-vers Was/then ¡standing iartheosecbnd iaiife for antomobile:',traffic ándi júst(westeofrthe ÍScott ¡áhtóínbbile, imineáiútfel#. kipon\ th.ebcha’ngfi, ofulighb-stb •gréen ¡ for him ¡moved irito; (the) ¡intersection;¡and'sttibek •the) plaintiff; ’ ■- Plaintiff, in'sistedi thát, although (S'tíé/ísáklb t-hb. Scott automobile; shendid.uioti see defendanf’eoc.ár -findldefendant i s’áid ,:thát/. ‘¡álfhbiigh :'he; abberbfe&sVbe Scdtt I car,- he did ihoti see ¡the .'plaintiff! until; she stepped intoihis fender. uThedáiignágeboí' the ¡Codéí ¡nobn prfeiscribes:the resp'ebtivel ri^iitsvanidi (duties', ¡of'the'-pártius MreUánd it: is;; somewhati iat) bariance'-- 'With thátbánwmhcéd in the case; úpou which ! the (trial ¡ jtidge¡ireliedi. •'•il'As the plaintiff hád¡¡thé)green llight-until-about vhhé ■timé!she .reached;thé plaéeswfrete ¡she*¡was 'stMok^éveaii fhobgh .it changed to¡ réd-at ¡that -timep she-, was > lawfully pn¡ the’crosswalkfaud¡ wad Ipebhiitted'-úiíde-r ¡paragraph *480(a) 1 of Section 6307-13, General Code, to proceed across the intersection. This right accorded to her, the .defendant was required to respect because, as provided in paragraph (a) 2 of Section 6307-13, General Code, there was enjoined upon him the specific obligation to “yield the right of way to * * * pedestrians lawfully within a crosswalk at the time such signal is exhibited.” Like obligation was required of the defendant under paragraph (a) of Section 6307-45, General Code.

We held in *State*v. *Howey,*78 Ohio App., 419, 65 N. E. (2d), 671, that, “where a pedestrian starts .across the street on a crosswalk at a street intersection with the green traffic light in her favor, but before she reaches the opposite sidewalk the traffic light changes and the operator of a vehicle, with the green light then in his favor, attempts to cross the intersection and strikes such pedestrian,” he may be found to have “violated the provisions of Section 6307-45 * * * General Code, prescribing the duty of an operator of a vehicle to yield the right of way to a pedestrian.” We said in the opinion in that ease, as we say here, that *Juergens*v. *Bell Dist., Inc.,*135 Ohio St., 335, 21 N. E. (2d), 90, is more applicable to the case at bar than *Martinovich*v. *E. R. Jones Co., supra.*For cases outside Ohio see the A. L. R. annotation to *Kirk*v. *Los Angeles Ry. Corp.„*26 Cal. (2d), 833, 161 P. (2d), 673, 164 A. L. R., 152. All the special instructions requested by the plaintiff, Nos. 4, 5, 6 and 8,- are, in our opinion, sound propositions of law and should have been given.

So far as the general charge is at variance with the meaning of the statutes, as we have construed them, it was erroneous and prejudicial to the plaintiff. The parts of the general charge to which the plaintiff excepts are numerous and we will not restate them here as there should be no difficulty in applying our holding *481to the incorrect and inapplicable portions of the charge as given.

We find no error in the giving of defendant’s special instruction No. 1 before argument. It is urged that the language, “did not use her senses of sight and hearing,” was too restrictive in that it attempted to define the extent to which the plaintiff was required to use her senses. We do not so read it. It merely requires that she use her senses of sight and hearing and does not undertake to specify when or where she would be required in the exercise of ordinary care to use such senses. The charge does not have the objectionable features found in the cases of *Juergens*v. *Bell Dist., Inc., supra,*and *C., C., C. & St. L. Ry. Co.*v. *Kuhl, Admx.,*123 Ohio St., 552, 558, 176 N. E., 222.

We do not find assignment of error No. 7 well made. No. 8, that the judgment is contrary to law, is established upon the prejudicial error which we have found respecting the special and general charges.

For the reasons assigned the judgment is reversed and the cause remanded.

*Judgment reversed.*

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