
    AUTOMOBILES — NEGLIGENCE.
    Licking (5th) Court of Appeals,
    April 21, 1917.]
    Powell and Houck, JJ.
    Shields, J., not sitting.
    Ellis Beeson v. David Criss et al.
    1. Competency of Testimony of Expert as to Whether an Automobile Was Under Control at Time of Collision with Another.
    Where the plaintiff has alleged that the automobile which collided with his own was being driven at a furious, unlawful and reckless rate of speed, contrary to the laws of the state, and that the driver had no control over said machine at the time of the collision, it is prejudicial error to sustain an objection to the testimony of an expert who, if permitted, would have testified-that in his opinion the defendant driver did not have his machine under control.
    2. Driver of Automobile on Right Side of Road Turning to Left and Colliding with Another Automobile Fearing Latter Would not Turn not Absolved from Negligence.
    Where the driver of an automobile traveling east on the south side of the road sees another machine coming from the opposite direction on the same side of the road, and fearing that the approaching machine will not turn out of his way the driver of the first machine himself turns to the north and in so doing causes a collision, the question whether he was negligent in so doing was for the jury, and a charge is erroneous which instructs them that if the driver of the first named car in the exercise of ordinary care believed it was dangerous for him to continue on the side where he belonged, his judgment in that matter controlled and he is relieved of negligence, notwithstanding his action in turning to the north was a mistake.
    [Syllabus by the court.]
    Error.
    
      Fitzgibbon, Montgomery <& Black, for plaintiff in error.
    PM. B. Smythe, for defendant in error.
   HOUCK, J.

The plaintiff in error was the plaintiff below and the defendants in error were the defendants below.

Plaintiff in his suit in the court of common pleas sought to recover damages in the sum of $7000 from the defendants for personal injuries, which he claimed as the result of a collision between a Ford automobile driven by him and a motor ambulance driven by an employee of the defendants.

In the common pleas court the cause ivas' submitted to a jury and a verdict returned for the defendants. A motion for a new trial was filed, heard and overruled, and a judgment catered on the verdict.

Plaintiff in error seeks a reversal of the judgment below and in his petition in error sets forth numerous grounds of alleged prejudicial error.

After a careful reading of the bill of exceptions and the record here presented we find errors in the record prejudicial to the rights of the plaintiff in error as hereinafter set forth.

A. P. Hess was sworn and examined as a witness on behalf of plaintiff, and on pages 88, 89, 90 and 91 we find the following:

“Q. What is your name? A. My name is A. P. Hess.
“Q. What business are you in, Mr. Hess? A. P am In the automobile business.
“Q. How long have you been engaged in the automobile business? A. About ten years.
“Q. . Do you remember the time of the collision on the Oranville road near Sixteenth street some time in March, 1915?. A. I do; yes, sir. * * *
‘ ‘ Q. About how far were you behind these machines at the time of the collision? A. About one block.
“Q. At what speed was it coming? A. Well, I couldn’t judge the speed from wdiere I was, but it ivas coming fast.
‘ ‘ Q. What did you hear ? A. I heard them strike.
“Q. How much experience have you had in handling automobiles ? A. About ten years.
“Q I will ask you to state from your experience as an automobile salesmam or driver whether the driver of the ambulance when this collision occurred, just from the way he was coming and the way the collision occurred or happened, whether or not in your opinion he had his car under control ?
“By Phil. B. Smythe: I object.
“The Court: I think you may show the facts. I don’t think it is subject to an expert opinion. The objection is sustained.
“By J. R. Fitzgibbon: Note an exception; and we offer to prove that the witness will say that in his judgment at the time of this accident the driver of the ambulance did not have the ambulance under control, and we wish an exception.
“The court refused to permit the plaintiff to so prove, to which refusal of the court counsel for plaintiff then and there excepted. ’

We think that this testimony should have gone to the jury and that its exclusion by the court was clearly prejudicial to the rights of the plaintiff below. The plaintiff alleges in his petition that “the employee of the defendants, driving said motor ambulance, was driving the same at a furious, unlawful and reckless rate of speed, which rate of speed was in violation of the laws of the state of Ohio, and so reckless that the driver of said motor ambulance had no control over the machine.”

This testimony tended to prove one of the matérial allegations in the petition and to establish negligence on the part of the defendants, as claimed by plaintiff, and it seems to us that it being necessary for the plaintiff to prove the essential allegations in his petition, that it was clearly competent to show by the witness, Hess, who qualified as an expert, just what plaintiff attempted to prove by this testimony; and therefore we hold that it was improperly excluded by the court.

Before counsel argued the ease to the jury, and at the request of counsel for the defendants, the court instructed the jury as follows:

(a) “If you find from the evidence that the plaintiff’s car approached the scene or point at which the collision took place on the south side of Granville street traveling westwardly, and you find from the evidence that the defendants’ ambulance approached the scene or point where the collision occurred on the south side of Granville street or road traveling eastwardly, and plaintiff’s car approached said point on the south side of said Granville street so close that in the exercise of reasonable care it appeared to the driver of defendant’s ambulance that the plaintiff intended to continue on the south side of Granville street or road, and you find that the driver of defendants’ ambulance turned the same to the left to avoid a collision, and you further find that at the same time plaintiff turned his car to the right, thereby causing the collision, the court charges you that in so doing the driver of defendants’ ambulance was not negligent in the operation and driving of said ambulance by turning to the left, even if you find that the driver of said ambulance erred in his judgment upon being confronted by said state of facts, and that defendant in the exercise of due care was not bound to bring his ambulance to a stand-still. ’ ’

(b) “Every person has a right in governing his own conduct to assume that others will perform their duty, and also act accordingly, until he sees, or by the exercise of ordinary care might see that it is dangerous to do so. Therefore, if you find from the evidence that the defendants’ ambulance approached the scene of the accident on the south side of the road', travelling eastwardly, he had a right to assume that the plaintiff would bear to the right and. pass him on the north side of the road. That if in the exercise of ordinary care it appeared to him that it was dangerous to continue driving on the south side of said road, the defendant was not negligent in attempting to avoid such threatened danger by attempting to pass plaintiff’s car on the north side of the road, if you find from the evidence that he did so attempt to pass the plaintiff’s car; and the defendant would not be guilty of negligence in so doing, even though you find that his judgment was bad in said respect, if you find that he had reasonable grounds for believing that the course he pursued would be the safest. A person in a place of danger is not to be held to such a course as would seem most judicious on deliberate survey of the situation after the accident. The question is not what a careful person would do, but what he might reasonably be expected to do in the presence of the peril, and this is for the jury. ’ ’

It is the duty of a trial court to submit to the jury propositions of law before argument, if they are correct propositions and applicable to the issues in the case.

The language used in the above charges, as we construe it, simply left it with the driver of the motor ambulance to determine the fact as to whether or not he believed, or had a right so to do, that the plaintiff intended to continue on the south side of Granville street, and whether or not he could have avoided the collision. These were questions of fact to be submitted to the jury to be passed upon and determined by it, and not by the driver of the motor ambulance. These questions were for the jury to decide under all the circumstances of the case, taking into consideration the rapidity with which both cars were travel-ling at the time, their relative position to each other, and whether the driver of the car of the defendants had it under proper control, all of which must be determined by the jury under the evidence submitted.

These propositions of law, as given to the jury, left nothing for it to pass upon as to whether the driver of the car of the defendants was negligent or not, because the force and effect of the instruction was that this question was to be determined by the driver, and if he so believed, then the plaintiff could not recover.

It necessarily follows from what we have already said that the judgment of the court of common pleas should be reversed.

Judgment reversed and cause remanded for a new trial.

Powell, J., concurs  