Summary
In Kormos v. Cleveland Retail Credit Men's Co., 131 Ohio St. 471, 3 N.E.2d 427, the Supreme Court held that it is the duty of the party failing to comply with the assured-clear-distance-ahead statute to offer proof excusing his failure to observe such legal standard of care; and if he fails to do so he is guilty of negligence as a matter of law.
Summary of this case from Lagos v. KahlerOpinion
No. 25693
Decided July 15, 1936.
Negligence — Failure to equip motor vehicle with headlights, negligence per se, when — Section 6310-1, General Code — Mudbespattered or dirt covered motor vehicles are substantial, discernible objects — Violation of "assured clear distance" statute, contributory negligence per se — Section 12603, General Code — Noncomplying driver may excuse failure and avoid legal imputation, how — Noncomplying party to offer proof excusing failure to observe standard of care.
1. Motor cars, whether driven or parked and whether mudbespattered or covered with an accumulation of dirt, are substantial, discernible objects within the purview of Section 6310-1, General Code; and under the provisions of that section it becomes the duty of drivers to equip their motor vehicles with sufficient headlights to show such objects ahead of them for a distance of at least 200 feet; and if they fail to do so, they are guilty of negligence per se.
2. One who violates Section 12603, General Code, requiring a driver of a motor vehicle on public highways not to drive his vehicle at a greater speed "than will permit him to bring it to a stop within the assured clear distance ahead" is, in the absence of proof of a legal excuse therefor, guilty of contributory negligence as a matter of law.
3. 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.
4. Section 12603, General Code, enacted for the public safety, has fixed a standard of care, and a failure to comply with such standard is negligence per se. It is the duty of the party failing to comply to offer proof excusing his failure to observe such legal standard of care; and if he fails to do so he is guilty of negligence as a matter of law.
ERROR to the Court of Appeals of Cuyahoga county.
The parties will be referred to in the order in which they stood in the trial court, where Kormos was plaintiff and the defendant in error was the defendant.
During the course of the trial, the defendant moved for a directed verdict in its favor at the close of plaintiff's evidence, and renewed its motion at the close of the entire case. Both motions were overruled by the trial court. The trial resulted in a verdict and judgment for the plaintiff. The Court of Appeals, writing no opinion, reversed the trial court and rendered final judgment in favor of the defendant on the authority of Gumley, Admr., v. Cowman, 129 Ohio St. 36, 193 N.E. 627. This court ordered the cause certified for review.
The accident occurred after dark between seven and eight o'clock in February, 1933, when the plaintiff's car, being driven westward, collided with an unlighted Ford car belonging to the defendant, and parked by an employee at the street curb on one of the avenues in Parma. The only eye witnesses testifying to the accident were the plaintiff and one Stanko, who was riding with him on the front seat. The plaintiff's automobile was being driven at a speed of twenty-five to thirty miles per hour about four feet from the curb on the proper side of the street. These witnesses testified that the plaintiff's car was equipped with lights which enabled them to see anywhere from 200 to 300 feet ahead. Plaintiff's witness testified that, at the speed plaintiff was traveling, his car could be stopped within a range of 15 to 20 feet. Plaintiff testified that, before striking the unlighted car, he observed an automobile being driven rapidly eastward, and that a moment before the collision the headlights from the approaching car blinded the occupants of the plaintiff's car in such a way as to make the collision unavoidable. When he first observed the approaching car, it was several hundred feet west of the parked car. The eastbound car and the plaintiff's car passed each other just at the time of the accident. Plaintiff was asked:
"Q. And you say this eastbound car was just passing you at the time of the accident. A. Just about passing when I hit."
Plaintiff also testified that he did not observe the parked car until within five or six feet from it, when he jammed on his brakes in order to avoid collision.
Messrs. Minshall Mosier, for plaintiff in error.
Messrs. McKeehan, Merrick, Arter Stewart and Mr. Neil P. Beall, for defendant in error.
In parking its car at the curb without lights and after dark, the defendant violated Section 12614-3, General Code, and was therefore guilty of negligence per se.
The real crux of this controversy lies in the construction of Section 12603, General Code, which, inter alia, provides: "No person shall drive any motor vehicle in and upon any public road or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead." In our former consideration of this section of the Code, this court held that the language therein employed constitutes a specific requirement of law, a violation of which constitutes negligence per se. Gumley, Admr., v. Cowman, 129 Ohio St. 36, 193 N.E. 627; Skinner v. Pennsylvania Rd. Co., 127 Ohio St. 69 186 N.E. 722. Counsel for defendant below rely upon those two decided cases and contend that the evidence of the plaintiff relating to his conduct at and just before the collision entitled it to have the motion for a directed verdict in its favor sustained.
The legal excuse, if it be an excuse, advanced by the adverse party is: (1) That, because of the absence of a tail-light and because there was so much dirt on the parked car, it was not a discernible object within the definition of that term as used in the Gumley case, supra; and (2) that the glare of the headlights on the approaching car just at and before the collision produced an emergency which he was not able to avoid. The states of Iowa, Pennsylvania and Michigan each have "assured clear distance" statutes similar to our own, and have often construed them. Without referring to the many cases that have dealt with the subject, we shall allude to Hart v. Stence, 219 Iowa 55, 257 N.W. 434, 97 A. L. R., 535, decided by the Iowa court November 20, 1934; Ellis v. Bruce, 217 Iowa 258, 252 N.W. 101; Stark v. Fullerton Trucking Co., 318 Penn. St., 541, 179 A. 84; Perkins v. Great Central Tnansport Corp., 262 Mich. 616, 247 N.W. 759. The latter case concerned a suit for an Ohio accident brought in the state of Michigan. In the argument of the case, counsel had relied upon the law pronounced in Tresise v. Ashdown, Admr., 118 Ohio St. 307, 160 N.E. 898; but the Supreme Court of Michigan rightly said it was not applicable for the reason that the "assured clear distance" statute was not adopted in Ohio until 1929 and after the foregoing case was decided.
Without passing in detail on the various decisions of the Supreme Courts of Pennsylvania, Michigan and Iowa, we are content in saying that their "assured clear distance" statutes are strictly construed; and in the Gumley case, supra, we held that the Ohio statute prescribed a "specific requirement of law, a violation of which constitutes negligence per se." It is indicated in the opinion in the Gumley case, supra, that situations may arise and collisions occur under circumstances which provide legal excuses to the person charged with the violation of a statute. Kadlec v. Al. Johnson Const. Co., 217 Iowa 299, 252 N.W. 103; Wosoba v. Kenyon, 215 Iowa 226, 243 N.W. 569. The Supreme Court of Iowa, in the Kadlec case, supra, on page 304 quoted with apparent approval from the case of Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552, where, speaking of the rule of proof applicable, the learned judge said: " 'In other words, accurately speaking, where the statute or ordinance has fixed the standard of care, the failure to observe such standard is negligence, and when in the trial of a case — the other elements being proven — it is shown that the defendant failed to observe the standard of care thus fixed, a case is made for the jury in the first instance. In such case, the defendant may offer proof excusing his failure to observe such legal standard of care. If, however, he fails to furnish proof of such legal excuse, then it is accurate to say that negligence is established as a matter of law.' "
Counsel for plaintiff below rests chiefly upon the contention that the parked car, because of the fact that it was covered with dirt, was not a discernible object. A similar excuse was unavailingly advanced by counsel in the Iowa case of Ellis v. Bruce, supra, where it was argued that, because the truck was the same color as the pavement and because it was spattered with mud, it was not reasonably discernible.
Section 6310-1, General Code, requires motor vehicles to be equipped with forward lights which, after dark, shall throw sufficient light ahead to show "any person, vehicle, or substantial object upon the roadway straight ahead of the motor vehicle for a distance of at least two hundred feet." The automobile in the instant case was a substantial object and, whether mud-spattered or otherwise, whether driven or parked, was an object which should have been discernible by the plaintiff below. It is well known that at certain times of the year, under varying weather conditions, motor cars of every shape or color may become bespattered with mud or be covered with an accumulation of dirt like the car in the instant case; even so, the plaintiff owed them the statutory duties required by the two sections alluded to. Such cars are discernible objects in a driver's path. In Lindquist v. Thierman, 216 Iowa 170, 248 N.W. 504, 87 A. L. R., 893, the opinion alludes to the case of Dalley v. Mid-Western Dairy Products co., 80 Utah 331, 15 P.2d 309, and apparently approved the following language used in the Utah case:
" 'The only reasons assigned by plaintiff for his failure to discover the truck sooner was because it was without lights and was painted yellow. The law imposed upon him the duty of having such lights as would enable him to discover objects without as well as those with lights. If his lights would not reveal unlighted objects at the prescribed distance, he was negligent. Some of his witnesses testified that part of the truck was painted red. The legislature having prescribed that the front lights of an automobile in use upon public highways of this state shall be of sufficient candle power to render all substantial objects clearly discernible at a distance of 200 feet, it is not within the province of the courts to carve out an exception to the law because of the color of the object involved in a given case. The claim that an operator of an automobile should be excused from discovering a substantial object directly in front of him because it was painted yellow or yellow and red, finds no support in law and is, as we believe, without any foundation in fact.' "
The plaintiff below has advanced no legal excuse for a violation of the "assured clear distance" statute. He testifies that his car was equipped with headlights with which he could see a pedestrian ahead of him for more than two hundred feet. He does not explain why, at some point within that distance, he was unable to see the parked car. He says he did not see it until within five or six feet. The inferences arising from his evidence are that the glare of the headlights and the collision were almost simultaneous occurrences. If he were blinded many moments before the collision, it was his duty to immediately decrease his speed and, if necessary, to stop until he recovered his vision. In the Wosoba case, supra, the syllabus reads: "The failure of the driver of an automobile to drive at such speed as will permit him to bring the car to a stop 'within the assured clear distance ahead' constitutes, in the absence of some legal excuse, negligence per se. And such excuse is not made to appear by evidence that the driver met a car and was temporarily blinded by the lights shining in his face, but did not slacken his speed." There is no evidence that plaintiff made any effort to decrease his speed until a moment before the collision occurred. Thompson v. Southern Michigan Transportation Co., 261 Mich. 440, 246 N.W. 174; Russell v. Szczawinski, 268 Mich. 112, 255 N.W. 731.
Having been unable, by his own testimony, to justify his action by any valid, legal excuse, the trial court should have sustained the defendant's motion for a directed verdict. The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., STEPHENSON, MATTHIAS and ZIMMERMAN, JJ., concur.
WILLIAMS, J., concurs in propositions one, two and three of the syllabus, but not in the judgment of affirmance.
I concur only in the judgment and dissent from that portion of paragraph one of the syllabus which reads as follows:
"Motor cars, whether driven or parked and whether mud-bespattered or covered with an accumulation of dirt, are substantial, discernible objects within the purview of Section 6310-1, General Code."
Whether a motor vehicle, parked in the nighttime on the highway, without lights, is or is not discernible to an approaching motorist within the radius of the rays of his headlights — at least 200 feet — is a question of fact for the jury to determine, in the light of all the facts and surrounding circumstances then and there existing.
To hold a motor vehicle, without lights on the highway, discernible, under any and all circumstances, within a distance of 200 feet, the radius of the rays of the headlights, is to disregard natural conditions which make objects otherwise discernible within a distance of 200 feet sometimes undiscernible within a lesser distance. A rule of law making that discernible which under certain natural conditions may be wholly undiscernible is, in the writer's opinion, to announce a legal absurdity. Laws of nature cannot be modified by laws of man. It is common knowledge that snow, snow drifts, fogs, mists, dust clouds and other atmospheric conditions may hide from view substantial objects on the highway otherwise discernible.
I do not disagree with the finding of the court that the parked automobile was discernible to plaintiff in the instant case. I do disagree with the majority of the court, however, in holding discernible, as a matter of law, under all circumstances, an automobile which may, under certain circumstances, not be discernible. The writer feels that it is more sound to leave the determination of that question, which is wholly one of fact, to the triers of facts.