
    Franklin Asphalt Paving Co. v. Marsh.
    (Decided December 9, 1932.)
    
      Messrs. Hamilton & Kramer and Mr. Alexander 8. Dombey, for plaintiff in error.
    
      Méssrs. Cowan, Adams é Cowan, for defendant in error.
   Allkead, P. J.

This action was brought by Clara L. Marsh against the Franklin Asphalt Paving Company for personal injuries resulting from ah automobile collision. The amount prayed for was $10,600 and costs. Upon the trial in the court of common pleas plaintiff recovered a verdict for $527.08. Motion for new trial was filed and overruled, and judgment was rendered on the verdict. The Asphalt Paving company prosecutes error. A number of legal questions are presented by counsel in the oral argument and in the briefs. It appears from the record in the case that Clara Marsh, on a trip from Cleveland to Indianapolis, on November 8, 1930, occupied an automobile driven by her husband; that in the course of the trip, at about 7 to 7:30 in the evening, the driver of the automobile entered upon a piece of new road which had recently been opened to the public; that there were signs upon this road, at each end, warning the people that they traveled at their own risk; and that neither plaintiff nor her husband, on account of the darkness, noticed these signs. They saw the road open, and they entered, and drove upon the road upon the assumption that it was open to public travel. About three miles distant from the point where they entered upon the new road, they came across a bridge upon which the plaintiff in error, the Asphalt Company, maintained a tool box. This box was upon wheels, and was moved from place to place as it might be needed in the company’s work. It was left, according to plaintiff’s evidence, upon the bridge, and the location, according to plaintiff’s evidence, was in the roadway about nine feet from the side of the bridge, or four feet from the line of the road. The plaintiff’s husband was driving with his lights turned down to dimmers on account of another automobile approaching from the opposite direction. It is claimed and not denied that the tool box was left without lights. There was evidence, however, that a lantern was suspended near the corner of the tool box, and there is some evidence that, the lantern was dimly burning. Neither the plaintiff’s driver nor the plaintiff noticed the tool box located upon the road until they came within 25 or 30 feet of it. The plaintiff’s evidence tends to prove that the plaintiff’s husband saw the box while he was driving at the rate of about 30 miles per hour, that, in order to avoid a collision with the box, he turned the car somewhat abruptly across the middle of the road until he had passed it, and then turned the car back to his proper side of the road, but that in doing so the car came into collision with the car approaching from the opposite direction, resulting in the injury to plaintiff’s wife and the injury to the car which was registered in her name. We cannot escape the conclusion that the Asphalt Company, in the location of its tool box or house on the roadway, was guilty of negligence contributing to the injury of the plaintiff below. The evidence of the Asphalt Company tends to contradict this negligence, but we think there was sufficient evidence of negligence to justify the court in submitting the case to the jury. It is claimed by counsel for plaintiff in error that the trial court should have directed a verdict in favor of defendant upon the ground of contributory negligence. This is the principal question of the case. Counsel cite the case of Bloom v. Leech, Admr., 120 Ohio St., 239, 166 N. E., 137. The syllabus of that case reads:

“1. The doctrine of imputed negligence does not ordinarily apply in Ohio, an exception being when parties are engaged in a joint enterprise.

“2. A ‘joint enterprise’ within the law of imputed negligence is the joint prosecution of a common purpose under such circumstances that each member of such enterprise has the authority to act for all in respect to the control of the agencies employed to execute such common purpose.

“3. While in actions between a third party and any or all of the members of a joint enterprise, the doctrine of imputed negligence on the part of such members of the joint adventure may be invoked, the rule does not apply, however, to an action by one member of the enterprise against another.”

We think that the evidence in this case offered by the plaintiff does not establish as a matter of law imputed negligence on the part of plaintiff, but in the consideration of the case we may assume that upon the doctrine of joint .enterprise the evidence does establish that the plaintiff, Clara L. Marsh, is chargeable with the negligence of her husband, and is liable for whatever negligence that may be ascribed to her husband in the driving of the car.

The question therefore is, What negligence, if any, was her husband liable for in the management of the car? In his testimony he says he did not notice the signs on the road, but entered upon the road as a public road; that he had no notice of any obstruction on the road until he came within 30 or 35 feet of the tool box, when he suddenly turned across the middle of the road to avoid a collision with the tool box. It is claimed that Marsh, as a driver of the ear, was bound to notice the tool box, as a matter of law, and that his failure to notice the tool box until he came so close to it as to be in danger of a collision is contributory negligence on his part. We cannot reach this conclusion. Marsh testifies that the tool box was mounted upon wheels, which placed the box about two feet from the bottom floor of the bridge, and was of a color that blended into the bridge, and could not have been readily distinguished. Marsh, the driver of the car, had his bright lights on, that enabled him to see 200 feet ahead of his car, but he turned them down upon the approach of the car from the opposite direction, so at the time Marsh approached the tool box he was approaching with his dimmed lights. The tool box therefore was between the two approaching automobiles and it was a question for the jury as to the amount of care Marsh, the driver of the car, should have exercised and did in fact exercise. The court could not hold him to contributory negligence as a matter of law for failure to see the tool box in time to have stopped. The court therefore properly overruled the request for a directed verdict and submitted the ease to the jury. Certain cases have been decided by the Supreme Court in regard to the care required of the driver of a car approaching a parked car without lights. Among these cases is Tresise v. Ashdown, Admr,, 118 Ohio St., 307, 160 N. E., 898, 58 A. L. R., 1476. The syllabus in that case is as follows:

“1. In an action to recover damages for injuries claimed to have been sustained by the driver of a motor vehicle resulting from a collision with another motor vehicle parked at the right side of the highway at night with no light in the rear or other warning thereof, an instruction to the jury, that operation of such motor vehicle at such a rate of speed that the driver cannot stop within the distance that an obstruction in the highway could be seen by his own headlights constitutes negligence per se, is erroneous.”

And it was held in that case, at page 313:

“The better reasoning supports the view that conduct of a driver of a motor vehicle which is not shown to have been in violation of law or ordinance should not be declared to be negligence per se, but that each such case must be considered in the light of its facts and circumstances, and the usual tests applied to determine whether there was a failure to exercise ordinary care in the operation of such motor vehicle. The question presented is one of fact, and should be determined by the jury under proper instructions.”

Marsh as the driver of the car, upon seeing the opposite automobile approaching, was required to turn down his bright lights and rely upon his dimmers. This was done by Marsh, and we think that under the authority of the Tresise case he was not guilty of contributory negligence as a matter of law, and that the case was properly submitted to the jury. We are clearly of opinion that the case presented a question which was properly submitted to the jury, and that the verdict, as rendered, should be sustained.

Decree accordingly.

Hornbeck and Kunkle, JJ., concur.  