
    The Fairlawn Supply & Coal Co. v. Jones.
    (Decided February 8, 1929.)
    
      Messrs. Musser, Kimber & Huffman, for plaintiff in error.
    
      Messrs. Grant, Thomas & Buckingham, for defendant in error.
   Washburn, P. J.

James Jones was driving Ms automobile in a westerly direction along the north side of an improved main thoroughfare; the Fair-lawn Supply & Coal Company drove its truck from its private right of way on the north side of said highway out onto said main thoroughfare and in the path of the Jones car, and before said truck crossed over the north half of said improved highway the left front part of the Jones chr came into collision with the left rear part of said truck, and Jones brought an action to recover damages for injuries to his person sustained in said collision. In the trial of the case in the common pleas court, Jones recovered a judgment against the Supply & Coal Company.

The place where the accident occurred was outside of any municipal corporation, and the error relied upon is in reference to the charge of the court— the claim being that the error was not an error of omission, but, on the contrary, consisted of a positive misstatement of the law by the court.

In charging the jury, the trial court read to the jury Sections 6310-22, 6310-24, 6310-28, and 6310-29, General Code, saying that these statutes laid down rules of conduct for the Supply & Coal Company to follow, and that a failure to comply with any of said rules would constitute negligence as a matter of law, which the court designated as “statutory negligence. ’ ’

An exception was. duly noted to said charge, and counsel for the Supply & Coal Company then requested the court to charge that the Supply & Coal Company was not required by any positive provision of the law to bring its truck to a stop before entering upon said main thoroughfare, but was only required to use reasonable and ordinary care in approaching the highway. The court in response to said request, charged the jury as follows:

“This being outside of a municipality, it is not subject to any ordinance or any traffic provision, except such as I have read to you, and did not impose upon the driver of that truck any statutory duty to stop. It was his duty, as I did indicate to you, only to exercise ordinary care and to yield the right of way in obedience to the traffic ride, which I read to yon, and that is all.”

The court therefore made it plain to the jury that if the Supply & Coal Company did not yield the right of way on the main highway to Jones, it was guilty of negligence as a matter of law.

Our consideration of the case leads us to the unanimous conclusion that the trial court was in error in its charge in two particulars:

In the first place, Sections 6310-22 and 6310-24, General Code, do not, in our opinion, apply to the situation disclosed by the record.

In the second place, while Sections 6310-28 and 6310-29 provide rules of conduct which are applicable to the situation,-they do not impose a specific requirement to do, or to omit to do, a definite act; and a failure to observe the rule of conduct required thereby does not constitute negligence as a matter of law.

As we view the matter, our conclusion is not only justified, but required, by the syllabus in the case of Heidle v. Baldwin, 118 Ohio St., 375, 161 N. E., 44, a decision which was not announced at the time of the trial of this case in the common pleas court.

In that case the court specifically determined that Section 6310-31, which provides that vehicles going on main thoroughfares ‘ ‘ shall have the right of way over those going on intersecting thoroughfares,” taken in connection with Section 6310-28, which defines “right of way” as meaning “the right of a vehicle to proceed uninterruptedly in a lawful manner in the direction in which it is moving in preference to another vehicle approaching from a different direction into its path,” does not impose a “specific requirement to do or to omit to do a definite act, but rather a rule of conduct, and the rule of per se negligence is not applicable thereto.”

In the case at bar, Section 6310-29 provides that a vehicle joining the flow of traffic on a road or highway from private property “shall yield the right of way to all other vehicles,” meaning the “right of way” as defined by Section 6310-28, and it seems plain to us that there is no substantial difference between a statute providing that a vehicle on a main thoroughfare shall have the right of way and a statute providing that one going upon a main thoroughfare shall yield the right of way to vehicles on said thoroughfare, and that, if the former statute provides merely a rule of conduct, the latter does also.

The driver of the vehicle proceeding from private property onto a main thoroughfare is not bound, under all circumstances, to yield the right of way to vehicles on the main thoroughfare; of course, if the approaching vehicle on the main highway, traveling at a lawful rate of speed, is so close that a prudent person would not have reasonable ground to believe that he can safely enter the main highway, it would be negligence for him to attempt to do so; but the question of his negligence is not determined as a matter of law by any definite act required of him by statute. That question is to be determined by the jury, after taking into consideration all the facts and circumstances, including the fact that if the two vehicles are likely to reach an intersecting point at about the same time the law gives a preference to the vehicle on the main highway.

The charge of the court, in view of the undisputed evidence that the Supply & Coal Company did not yield the right of way, was tantamount to a direction to the jury to find that the Supply & Coal Company was guilty of negligence, which, in our opinion, was clearly erroneous, and, as such error involved the very basis of the action, it was necessarily prejudicial.

Moreover, there is a marked conflict between the testimony of Jones and the testimony of the driver of the Supply & Coal Company truck, and the testimony of each is in part so unreasonable as to leave one in great doubt as to just how the accident happened. Therefore the circumstances are such that we cannot certify that substantial justice was done notwithstanding the error in the charge of the court.

Judgment reversed for error in the charge of the court, and cause remanded to the court of common pleas.

Judgment reversed and cause remanded.

Funk and Pardee, JJ., concur.  