
    Powers, Appellant, v. Gilmore, Appellee.
    (No. 35934
    Decided December 16, 1959.)
    
      
      Messrs. Mayer & McDermott and Mr. Herschel G. Holland, for appellant.
    
      Messrs. Zelkowits S Barry, for appellee.
   Per Curiam.

At the time involved herein, plaintiff was operating his car continuously on the right or proper side of the road at a rate of speed within the speed limit which at that time was 50 miles an hour (Section 4511.21, Revised Code, 124 Ohio Laws, 520). Defendant was operating his car in excess of the prima facie lawful speed limit on the left or wrong side of the road, rounding a curve on the outside thereof at a speed of from 55 to 60 miles an hour and attempting to pass two cars ahead of him proceeding in the same direction without first making sure that the left side of the road was clearly visible and free from oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any traffic approaching from the opposite direction or any traffic overtaken, as required by Section 4511.29, Revised Code. The defendant in thus violating the statute was clearly guilty of negligence as a matter of law.

Since contributory negligence is not pleaded, there must be direct proof of a fact from which an inference of such negligence can reasonably be drawn. Parras v. Standard Oil Co., 160 Ohio St., 315. The record contains no evidence of contributory negligence on the part of plaintiff or proof of a fact from which an inference of such negligence can reasonably be drawn. Plaintiff was driving on the proper side of the road well within a lawful speed, and under the circumstances his reaction in turning into the ditch to avoid a head-on collision was normal, prudent and reasonable.

The trial court was in error in charging on contributory negligence.

The judgment of the Court of Appeals is reversed and the cause remanded to the trial court for further proceedings according to law.

Judgment reversed.

Weygandt, C. J., Zimmerman, Taet, Matthias, Herbert and Peck, JJ., concur.

Beil, J.,

dissenting. It has long been the law of Ohio that, even though the pleadings do not raise the issue of contributory negligence, if it arises in the case by virtue of the evidence, the court should charge on that subject. Behm v. Cincinnati, Dayton & Toledo Traction Co., 86 Ohio St., 209, 99 N. E., 383; Bradley v. Cleveland Ry. Co., 112 Ohio St., 35, 146 N. E., 805; Fries v. Cincinnati Street Ry. Co., 138 Ohio St., 537, 37 N. E. (2d), 193; Centrello, a Minor, v. Basky, 164 Ohio St., 41, 128 N. E. (2d), 80.

Probably no greater difficulty faces the trial judge in the course of a negligence trial than the determination of whether the question of contributory negligence is “in the case.” Such difficulty is probably only surpassed by that confronting the jury in comprehending the instructions which the judge is required to give in the event he determines that the plaintiff’s evidence raises an inference of contributory negligence. Baltimore & Ohio Rd. Co. v. Whitacre, 35 Ohio St., 627.

The trial judge here heard all the evidence. In attempting to find the fine line between whether he should charge on contributory negligence or whether he should not, he undoubtedly gave careful consideration to all the evidence. He determined that the question was there. The Court of Appeals reviewed that record and a majority thereof came to the same conclusion. For this court to say from that same record that, as a matter of law, the reaction of the plaintiff was “normal, prudent and reasonable” is an arrogation to itself of a function more properly to be relegated to the jury.  