
    McKinnon v. Pettibone.
    (Decided February 13, 1932.)
    
      
      Mr. Charles H. May and Messrs. Williams, Sinks <& Williams, for plaintiff in error.
    
      Mr. Barton Walters and Mr. C. A. Weldon, for defendant in error.
   Matjck, P. J.

Osmer Pettibone brought his action in the common pleas, alleging that on the night of March 17, 1929, he was walking on the highway in a southerly direction about two miles north of South Bloomfield, in Pickaway county, when he was struck by an automobile then and there being operated by the defendant, John J. McKinnon, and that he suffered substantial injuries therefrom. He charged that the defendant was traveling north and was operating his automobile in a negligent manner, in that he was driving at an excessive rate of speed; that he neglected to give any warning of his approach; that he negligently drove his machine over on the west side of the highway where the plaintiff was walking; that he discovered that plaintiff was in a perilous situation, but nevertheless failed to avoid striking and injuring the plaintiff; and that he neglected to stop or check the speed of his automobile after he discovered the plaintiff’s perilous position. The defendant-by answer made a general denial and further pleaded that if any damage was sustained by the plaintiff it was caused by the plaintiff’s sole negligence. Trial was had resulting in a verdict for the plaintiff. A judgment was entered upon this verdict, and the defendant now prosecutes error to this court.

The only assignments of error deemed worthy of notice at this time relate to the instructions to the jury. These will be severally disposed of.

While the court by a special instruction before argument, given at the instance of the plaintiff, and once in the general charge, laid down the rule that the fact that the automobile was traveling in excess of thirty-five miles an hour outside of a municipal corporation, should be prima facie evidence of an unlawful rate of speed, the court further and later in the charge instructed the jury that if it found that the defendant operated his automobile at a speed greater than thirty-five miles per hour or “at a speed which was greater than was reasonable under the circumstances of this case” the plaintiff might recover if the plaintiff was himself free from fault. This last instruction contradicted the preceding instruction by advising the jury that a speed in excess of thirty-five miles per hour was not merely prima facie unlawful, but was absolutely so.

Schell v. DuBois, Admr., 94 Ohio St., 93, 113 N. E., 664, L. R. A., 1917A, 710, is cited in justification of this charge. This court has no disposition to qualify the principle laid down in Schell v. DuBois that the violation of a penal statute constitutes negligence per se. The Schell case involved a question of speed. At that time the statute penalized one operating an automobile at a rate of speed in excess of that fixed by statute. There is no such statute now. Section 12603, General Code, makes the substantive offense thereunder the operation of an automobile at a speed greater than is reasonable and proper under the immediate conditions. As a matter of evidence certain rates of speed are fixed as making a prima facie case of unlawfully operating a machine at an unreasonable and improper speed. Whether the statute is violated depends upon whether or not the speed is unreasonable and improper. No particular rate of speed is conclusive of a violation of the statute, and no rate of speed is therefore an act of negligence per se. A speed greater than that fixed in the statute may under the conditions be reasonable and proper, and a rate of speed less than that fixed under the statute may under the circumstances be unreasonable and improper. Wales v. Vanderhoof, 15 Ohio App., 147; State v. Blair, 24 Ohio App., 413, 157 N. E., 801; Schneiderman v. Sesanstein, 121 Ohio St., 80, 167 N. E., 158, 64 A. L. R., 981; Eshner v. City of Lakewood, 121 Ohio St., 106, 166 N. E., 904. The charge complained of was accordingly erroneous.

The next complaint of the charge is that relating to contributory negligence. There is no difference of opinion about contributory negligence being in this case. There was evidence that justified a charge upon that issue. The fault of the instruction in this case was not that there was a charge upon contributory negligence, or what was said with reference to contributory negligence. The vice of the charge was that the court instructed the jury that the defendant had pleaded contributory negligence, when the defendant had not done so. There is a difference between a case where contributory negligence becomes an issue by reason of evidence adduced where no plea of contributory negligence had been made by answer, or where the answer pleads the sole negligence of the plaintiff as the proximate cause of the injury, and a case where contributory negligence is pleaded by the defendant. Glass v. William Heffron Co., 86 Ohio St., 70, 98 N. E., 923. Where a pleading of contributory negligence is found in the answer of the defendant it assumes that the defendant has been guilty of primary negligence, and where relied on is a tacit admission that the defendant has himself been guilty of negligence. As put by Judge Johnson in Rayland Coal Co. v. McFadden, Admr., 90 Ohio St., 183, 194, 107 N. E., 330: “An averment of contributory negligence necessarily implies some negligence on the part of defendant, and there is no arbitrary rule which requires a defendant to elect at his peril, whether or not to plead contributory negligence, if he honestly feels that he has not been negligent at all.”

In this case the defendant had prudently avoided the plea of contributory negligence by pleading the sole negligence of the plaintiff, and came within the rule of the Glass case. The instruction to the jury, however, robbed him of the prudence exercised by him when it advised the jury that the defendant had in fact pleaded contributory negligence, thus advising the jury that the defendant had impliedly admitted primary negligence on the part of the defendant. This feature of the charge was erroneous.

There was much evidence in the case for and against the contention of the defendant that the plaintiff was intoxicated at the time of his injury and that his condition accounted for the collision. Upon this feature of the case the court charged as follows: “If, however, you find that the plaintiff was intoxicated at the time of the accident and that the defendant observed or should have observed such fact prior to the accident, then the defendant owed the plaintiff the duty of using such degree of reasonable care to avoid injuring him as he would have owed to a child or helpless person.”

This charge was an attempt to apply to the ease the doctrine of the last clear chance, and so applied that doctrine as to fix liability upon the defendant notwithstanding the plaintiff’s negligence if the defendant should have observed the plaintiff’s condition. The plaintiff is quite right in pointing out that this instruction is justified by Railroad Co. v. Kassen, 49 Ohio St., 230, 31 N. E., 282, 16 L. R. A., 674. On the facts the Kassen case was not one where the defendant should have observed the plaintiff, but was one where defendant actually had knowledge. The Supreme Court has followed the facts of the Kassen case in subsequent cases, but has expressly abandoned the doctrine in the syllabus that the last clear chance can be predicated on what the defendant should have known. Erie Rd. Co. v. McCormick, Admx., 69 Ohio St., 45, 68 N. E., 571.

In Toledo, Columbus & Ohio River Rd. Co. v. Miller, 108 Ohio St., 388, 140 N. E., 617, the Supreme Court refused to reverse a judgment in which this sort of erroneous instruction had been given, for reasons that appear in the opinion, but it expresses its disapproval of the instruction.

Assuming that the plaintiff was entitled to a charge on the last clear chance such charge should not have included the words “or should have observed.” As given the instruction was erroneous.

For the three errors mentioned the judgment is reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Middleton and Blosser, JJ., concur.  