
    McKee v. Liming.
    (Decided May 18, 1928.)
    
      Messrs. Young é Barnes, for plaintiff in error.
    
      Messrs. Bagby é Bagby, for defendant in error.
   Matjck, J.

"William M. Liming recovered a judgment in the common pleas court in an action in which he claimed damages for certain injuries sustained by him by reason of having been struck by an automobile operated by defendant "W. L. McKee.

The first, and perhaps the most important, question arising in this case, concerns the sufficiency of the service on the defendant. The latter was a resident of the state of Indiana. The injury forming the basis of the action occurred in Brown county, Ohio. Personal service was had on the defendant in Adams county, Ohio, by a summons issued from the court of common pleas of Brown county. It has been sought to justify this service on the authority of Section 6808, General Code. That section provides in its first sentence that actions predicated on the negligence of the owner or operator of a motor vehicle may be brought in the county where the injury occurred. By its second sentence it authorizes the issuance of process to the sheriff of another county in which the defendant resides. It is now urged that, inasmuch as the defendant was not a resident of Adams county at the time of service, the case does not come within the provisions of the section referred to, which only covers the exceptional cases mentioned. We do not consider it necessary to give to Section 6308, General Code, an interpretation broader than its literal terms in order to sustain the service had in the instant case. That section relates to the venue of actions. Klein v. Lust, 110 Ohio St., 197, 143 N. E., 527.

The chapter of the Code beginning with Section 11268 fixes generally the counties in which actions may be brought. This being a personal, transitory action, it could, of course, be brought in any county where service could be had on the defendant, whether the defendant was a resident or nonresident. If a given defendant is a resident, Section 11277, General Code, enlarges the opportunity to sue him by authorizing the action to be brought, not only in any county where he might be served, but also in the county where he resides. If he is a nonresident of the state, Section 11276, General Code, enlarges the opportunity to sue Mm by authorizing an action to be brought, not only in the county where he may be served, but also in the county where the cause of action arose, in all cases save those covered by Sections 11268 to 11271. It will at once be seen that Section 6308, General Code, had the purpose and effect only of changing the law providing the place where actions could be brought so far as residents are concerned. It made it possible to bring an action for negligence against a resident automobile operator in the county where the cause of action arose. It did not undertake to change the law of the venue of actions against nonresidents, because the law was already broad enough to enable them to be sued in any county where the cause of action arose, whether for negligence in operating an automobile or for any other personal action, with the exceptions already referred to. Inasmuch as the cause of action here sued upon arose in Brown county, and inasmuch as this is not an action covered by Sections 11268, 11269, 11270, or 11271, and inasmuch as the defendant was a nonresident of the state of Ohio, this action was properly brought in Brown county, and this is so wholly independent of Section 6308, General Code. The service derives its validity from Section 11282, General Code, in the chapter following that relating to venue. That section provides that, when an action is rightly brought in one county, summons may issue to another county. TMs section is not confined to instances where one defendant is resident of the county of venue and other defendants of other counties. It is the only section authorizing service in foreclosure and other local actions, and requires no restricted construction, It authorizes service out of the county in all cases where the action is rightfully brought within the county. We accordingly find that the service was good.

Plaintiff in error frankly states that he is complaining of no rulings in regard to the evidence and that he has no complaint to make of the court’s instructions. He does, however, contend that the court erred in not directing a verdict at the conclusion of the plaintiff’s testimony, and that the error was repeated by not directing a verdict at the conclusion of all the testimony, and that the record as a whole shows the plaintiff guilty of contributory negligence precluding recovery. This contention is based upon the testimony that tends to show -that the plaintiff crossed the highway when he might have seen the rapid approach of the defendant’s automobile. The record as a whole shows that immediately prior to crossing the highway the plaintiff did see the defendant approaching the scene at the distance of several hundred yards. There was testimony warranting the jury in finding that the defendant was traveling at such a speed as to constitute negligence. Not only did the testimony of the eye-witnesses who observed the moving car warrant the jury in believing that the defendant’s speed was grossly excessive, but the distance traversed by the machine after the plaintiff was struck in spite of the defendant’s, efforts to stop it also so warranted. It is perfectly clear that, if the defendant was traveling at an excessive rate of speed, the plaintiff would not have been injured had the defendant been traveling at a less rate, for the .plaintiff had almost crossed the road before he was struck. The plaintiff had a right to assume when he saw the defendant’s approach that the latter was proceeding in a lawful and prudent manner. He was not obliged to anticipate any negligence on the part of the defendant. While the jury under the facts adduced might have concluded that the plaintiff was guilty of contributory negligence, it was not bound to do so. We consider this feature of the case to be determined by the recent opinion of the Supreme Court in Trentman v. Cox, 118 Ohio St., 247, 160 N. E., 715.

Judgment affirmed.

Middleton, P. J., and Thomas, J., concur.  