Not overruled or negatively treated on appealinfoCoverage
Court of Appeals of OhioMay 31, 1932
42 Ohio App. 520 (Ohio Ct. App. 1932)
42 Ohio App. 520182 N.E. 58912 Ohio Law Abs. 646

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Decided May 31, 1932.

Negligence — Automobile, swerving to avoid pedestrian, collided with oncoming automobile in nighttime — Ordinary care required in emergency — Pedestrian entitled to walk on right side of highway, when — Oncoming automobile need not anticipate approaching automobile will swerve to avoid pedestrian — Statutes requiring headlight distances and dimming, not in conflict — Dimmed or full headlights must permit observing objects within 200 feet — Drivers to maintain speed permitting stopping within assured clear distance ahead — Sections 6310-1, 6310-34, 12603 and 12614-2, General Code — Negligence per se — Driving in nighttime at speed not permitting stopping to avoid accident — Driver violating law cannot claim acts were emergency — Charge to jury.

1. Emergency does not change requirement of "ordinary care."

2. There being no crosswalks or cinderpaths paralleling highway, pedestrian had right to walk on right side of road as regards motorist's duty (Section 6310-34, General Code).

3. Motorist, plaintiff's host, held not required to anticipate that defendant motorist would cross to wrong side of road to avoid pedestrian (Section 6310-34, General Code).

4. Requirements that headlights must illuminate objects 200 feet ahead, and that driver must dim lights on approach of other vehicles, held not conflicting, but must be considered together (Sections 6310-1 [111 Ohio Laws, 465] and 12614-2 [110 Ohio Laws, 129], General Code).

5. Whether dimmed or not, headlights must permit objects 200 feet ahead to be seen by driver (Sections 6310-1 [111 Ohio Laws, 465] and 12614-2 [110 Ohio Laws, 129], General Code).

6. Statute requiring drivers to maintain speed permitting them to stop within assured clear distance ahead held applicable to both day and night driving (Section 12603 [113 Ohio Laws, 283], General Code).

7. Motorist unable, because of insufficient headlights, to see pedestrian until within few feet, must be able to stop within such distance, and failure to drive at speed permitting such stopping is negligence per se (Section 12603 [113 Ohio Laws, 283], General Code).

8. Motorist unable, because of insufficient headlights, to see pedestrian until within few feet, and crossing to wrong side of highway to avoid striking pedestrian, but colliding with approaching automobile, could not excuse act on emergency theory (Sections 6310-1 [111 Ohio Laws, 465], 12603 [113 Ohio Laws, 283] and 12614-2 [110 Ohio Laws, 129], General Code).

9. Charge permitting finding that defendant motorist, involved in collision, acted in emergency held prejudicial error, where his violation of law caused emergency (Sections 6310-1 [111 Ohio Laws, 465], 12603 [113 Ohio Laws, 283] and 12614-2 [110 Ohio Laws, 129], General Code).

ERROR: Court of Appeals for Sandusky county.

Mr. John A. Price, for plaintiff in error.

Mr. Wm. A. Finn and Mr. I.G. Stout, for defendant in error.

In these proceedings in error it is sought to reverse a judgment of the court of common pleas of Sandusky county rendered in favor of Morris Hubbel, the defendant in error. The action in the court of common pleas was commenced by Lena Curtis to recover damages for personal injuries resulting from a collision between an automobile driven by Mrs. Schachtler, in which Mrs. Curtis was riding as a guest, and an automobile owned and operated by Hubbel.

The collision occurred at about 7:30 o'clock in the evening of January 18, 1931, on state route No. 102, also known as the Woodville road, and at a point not within any municipality. The macadamized portion of this road was about 18 feet wide. Paralleling it on the westerly side was a ditch 8 to 10 feet in depth, separated from the road by a narrow berm. On the other side of the macadamized portion of the road was a berm from 10 to 12 feet in width, beyond which was the right of way of the Lake Shore Electric Railway Company, which at that point also paralleled the highway. The night was dark and stormy, and, according to Hubbel, "it was snowing or raining" at the time of the collision. "The road was slippery," and for some time theretofore it had been alternately snowing and raining. Hubbel was proceeding southerly and the automobile of Mrs. Schachtler northerly along the road. Hubbel dimmed his lights for the approaching Schachtler automobile when "probably 100 feet" therefrom. Behind Mrs. Schachtler's car were "possibly three or four other cars," and "they seemed to have very bright lights." In testifying, Hubbel said: "Before this accident occurred I was driving not to exceed 25 miles an hour and I seen this approaching car at approximately 100 feet, but before this time I dimmed my lights on account of driving on the right and this approaching car. I dimmed for it also and all at once there appeared a man walking on the pavement, walking in the same direction I was going. He was between 6 and 8 feet ahead of me when I seen him."

Hubbel says that his automobile was then proceeding 6 or 8 inches from the "right edge of the highway," and "the man was walking a foot to the left" thereof, and that, owing to the condition of the night, he could see only 15 feet ahead of him after he dimmed his lights. Upon seeing the pedestrian ahead of him, Hubbel swerved his car to the left, hitting the pedestrian, and then either striking or being struck by the automobile driven by Mrs. Schachtler. The evidence shows that Mrs. Schachtler was driving her car on the easterly side of the road, where she had a right to be, and at a speed which, prima facie, was not negligent.

Counsel for Hubbel in their brief say that Mrs. Schachtler, "the driver of the Studebaker, did not change her course at any time prior to the collision, but continued straight north." There is no evidence in the record tending to show that Mrs. Curtis was guilty of contributory negligence.

Mrs. Curtis asks a reversal of the judgment rendered in the court of common pleas on two grounds: First, that the verdict and judgment are manifestly against the weight of the evidence; and, second, that the trial judge erred in his charge to the jury.

A reading of the record discloses that the first ground of error is well founded. The verdict and judgment are manifestly against the weight of the evidence.

In his general charge to the jury the trial court said:

"The defendant, in presenting his case, says he was confronted with a sudden emergency, in that there appeared in front of his car a pedestrian on his side of the road and that to avoid the pedestrian he had to swerve his car to the left, and that because of this sudden emergency he had to make a sudden decision as to what to do.

"If you find this is true then it is proper to say to you that when a person, without his 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 as a matter of law that he is guilty of negligence because he fails to make the most judicious choice between hazards presented, or that he would have escaped if he had chosen differently. The question in such case is not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do, in the presence of such existing peril. Of course, if a person by his own fault and negligence places himself in a position of danger he is not excused because he is suddenly confronted with an emergency which requires a quick decision."

The question thus presented to this court is whether there is any evidence which would justify a jury in finding that Hubbel was confronted with an emergency as that term is legally defined.

What ordinarily careful and prudent persons would or would not do when confronted with an emergency requiring prompt and immediate decision might not and probably would not be what such persons would or would not do where no emergency existed, but the degree of care required is the same. It does not increase or diminish. It is always ordinary care, that degree of care which ordinarily careful and prudent persons are accustomed to exercise under the same or similar circumstances. In other words, if applied to the instant case, and there was an emergency as claimed, such care as ordinarily careful and prudent persons are accustomed to exercise in a situation such as that in which Hubbel found himself.

Section 6310-34, General Code, provides: "Where crosswalks or cinder paths parallel the public road or highway pedestrians shall not walk in, along or upon the vehicular traveled portion of such public road or highway, except at crossing and crosswalks, except in cases where crossings or crosswalks are an unreasonable distance apart."

The place of the occurrence under discussion was in the open country. There were no crosswalks; nor cinder paths paralleling the highway. This pedestrian had a right, therefore, to walk along and upon the right side of the road, and Hubbel was bound to anticipate such use of the highway by others and be prepared to act accordingly.

No duty devolved upon Mrs. Schachtler, driving her car on the easterly side of the road where she had a lawful right to be, to expect or assume that Hubbel would cross to that side of the road.

Section 6310-1, General Code (111 Ohio Laws, 460, 465), effective as amended July 20, 1925, requires that the forward lights of a motor vehicle, other than a commercial vehicle, "shall, when the motor vehicle is in motion, 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."

Section 12614-2 as amended, effective July 18, 1923 (110 Ohio Laws, 129), provides that the driver of any motor vehicle upon a highway of the state in the night season, upon the approach of another vehicle, shall control the headlights thereon by dimming or otherwise so that at a distance of not less than 200 feet in front thereof no part of the intensified rays shall be visible more than 3 1/2 feet above the surface of the highway, and remain so until the approaching vehicle passes by. These two sections are not in conflict. One provides that the light shall be of sufficient brightness to distinguish objects on the highway ahead; the other, that, when approaching another vehicle, the intense rays shall not be reflected more than 3 1/2 feet above the surface of the highway at the prescribed distance of 200 feet. Apparently these two sections are to be considered together, and, whether dimmed or not, the lights should be such as will permit objects 200 feet ahead on the highway to be seen by the driver of the car. Then we have Section 12603, General Code, which was amended at the legislative session of 1929 (113 Ohio Laws, 283), becoming effective July 21, 1929, wherein, for the first time, appears the following: "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."

Section 6310-1 and Section 12614-2, General Code, in conjunction with Section 12603, show the attempt and intent of the Legislature to safeguard those lawfully upon a public road against injury by automobiles driven thereon, especially in the night season. The purpose of the above-quoted portion of Section 12603 is obvious, and its language is explicit. It applies generally to all drivers of automobiles, whether using the highways of the state in the night season or in the daytime, and requires that the speed of the automobile shall at all times be such as to permit the driver to stop within the range of his vision. If, when driving at night, the forward lights on his car do not throw sufficient light ahead to enable him to see a pedestrian lawfully upon the highway until he is within 8 feet of striking distance, then, since he is bound to anticipate the presence of the pedestrian, he must drive at such speed as will enable him to stop when he does see the pedestrian, and failure to do so is negligence per se. And, if he veers to his left to avoid striking the pedestrian, and in so doing crosses to the other side of the center of the highway in front of an approaching automobile, he cannot excuse this latter act on the theory that it was done in an emergency. In a sense, a situation such as is shown by the evidence creates an emergency, but it is an emergency caused by a violation of positive law, of which he who violates the law cannot claim the benefit.

Our attention has not been called to any Ohio authorities which discuss that portion of Section 12603 which we have been here considering. In Michigan a statute containing this same provision was enacted in 1927 (Section 5, Title III, Act No. 318, page 584, Public Acts, Michigan 1927), and it was retained in the amending statute passed in 1929 (Section 4697, Section 5, Comp. Laws of Michigan, 1929, page 1851).

In Bowmaster v. William H. De Pree Co., 252 Mich. 505, 233 N.W. 395, the third paragraph of the syllabus is: "Automobile driver, who, on snowy, windy day, drove his car at greater speed than permitted him to bring it to stop within assured clear distance ahead, in violation of 1 Comp. Laws 1929, § 4697, resulting in collision with truck standing on right side of road, was guilty of negligence as matter of law."

At page 512 of the opinion [233 N.W. 398], the court says: "The defendant * * * was driving his automobile upon the highway at a speed greater than permitted him to bring it to a stop within the assured clear distance ahead, in violation of the plain provisions of the statute, and we think was guilty of negligence as a matter of law."

There is no ambiguity in the language used by the Legislature in Section 12603. The evident and unmistakable purpose was to compel every one driving a motor vehicle upon any of the highways of the state to respect the rights of others also lawfully using them. Its strict observance would prevent not only loss of life, but also daily occurring injuries to person as well as property, which in number seem rather to increase than to diminish.

We conclude, therefore, that the evidence in the record does not disclose facts tending to show an existing emergency of which Hubbel can claim the benefit, and that it was prejudicial error for the court to charge the jury on that subject.

For this reason, and because the verdict and judgment are manifestly against the weight of the evidence, the judgment of the court of common pleas is reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

WILLIAMS, J., concurs.

In my opinion the verdict and judgment are manifestly against the weight of the evidence, for which reason alone the judgment should be reversed. I therefore concur in the judgment of reversal.