
    The Board of Commissioners of Logan County v. Bicher, Admx.
    
      Negligence — Imputed — Guest of driver of automobile — Charge to jury — Exercise of care.
    
    (No. 15791
    Decided June 21, 1918.)
    Certified by the Court of Appeals of Logan county.
    The defendant in error brought suit against the board of county commissioners of Logan county to recover damages sustained on account of the alleged carelessness and negligence of the commissioners, which resulted in the death of her husband.
    In her petition she described a county road called the “Carlisle Pike,” in Logan county, across which there is a stream called “Stony Creek,” over which the commissioners have maintained, for many years, a bridge.
    She alleged that the bridge was destroyed a long time prior to September 26, 1913, and that the commissioners negligently permitted the highway across the creek to remain open without any bridge or other means of passage being provided for vehicles; that the commissioners did not provide any barricade or barrier to prevent persons from using said highway and approaching said creek, or provide any means of warning passengers along said highway of the danger by reason of the destruction of the bridge, of which danger the commissioners. had full knowledge and notice.
    She alleged that the commissioners had full notice and knowledge that no barricades were across said highway to prevent passengers from using the same, and that no lights or other means of warning passengers had been placed along or across said highway; that on the day named, in the night season, John E. Bicher, deceased, was a guest in a certain automobile driven along said highway; that the automobile was driven in a careful and prudent manner and that deceased and the other persons in the same had no knowledge of the destruction of said bridge, or of the dangers existing thereof; and that while so traveling along the road, the automobile, with all of its passengers, was suddenly plunged from the level of the highway to the bottom of the creek and the plaintiff’s intestate received injuries from which he died.
    In its answer the board denied that on said day there was an opening between the banks of Stony Creek where it crossed the pike, that had been left open and exposed and uncovered, and especially denied that the road had been negligently and carelessly permitted by the defendant to be and remain open and exposed and uncovered, where the pike crossed the creek. The defendant denied that the pike on the 26th of September was without any bridge or means of passage for travelers along said highway, and denied all negligence alleged in the petition.
    For a second defense defendant set out that said bridge was washed away by unprecedented rains in March, 1913, and that defendant had caused to be constructed a good and sufficient wood bridge across said creek from 25 to 30 feet east and south of the location of the former, bridge, together with proper approaches; that about 75 or 80 feet south and west of the old bridge the traveled road had been turned by the defendant towards the east so as to provide a good and sufficient roadway and approach, abandoning the old roadway approaching the original bridge; and that defendant had erected barriers at the point where said traveled roadway had been turned to make the approach to the new bridge and had in every way exercised ordinary care for the' protection of the public.
    For a third defense defendant says that the decedent and others were driving from Middletown, Ohio, to the Lewiston Reservoir, a journey of some 100 miles, in an automobile driven by Adams, ■the owner thereof; that the deceased well knew that the roads and bridges in Miami and Mad River valleys had been practically all washed out by the spring flood, and that there had been no opportunity on the part of the various county authorities to restore the same entirely; that the automobile was not provided with good and sufficient brakes and its occupants were without means of controlling the car, all of which was well known to the deceased; and that in a wilful and negligent disregard of the turn in the roadway, and of the barricades erected by the defendant, the said deceased and other occupants of the automobile deliberately turned off said traveled roadway on to the abandoned and unused portions thereof and into and through and over the barricades that had been placed at the turning of the road by the defendant, and thereby received the injuries complained of.
    In her reply the plaintiff denied the allegations in the second and third defenses.
    On the trial the jury returned a verdict in favor of the plaintiff, and the judgment entered on this verdict was affirmed by the court of appeals, which court certified the cause to this court for review and final determination because it found that its judgment was in conflict with the judgment pronounced on the same question by another court of appeals of the state.
    
      Mr. Lewis F. Hale, prosecuting attorney, and Mr. A. Jay Miller, for plaintiff in error.
    
      Mr. Benjamin Harwits; Messrs. West & West and Mr. H. L. Dell, for defendant in error.
   By the Court.

Plaintiff in error urges that the trial court erred in overruling motions made by it to arrest the case and to direct a verdict in its favor, on the ground that no negligence on its part had been shown.

There was a distinct issue made by the pleadings as to the negligence of the defendant below; substantial evidence was, introduced by each party on this issue; and the court properly left its solution to the jury.

Defendant earnestly insisted in the courts below, and here, that the decedent was guilty of contributory negligence, and considerable evidence was introduced touching that issue. Plaintiff in error urges, that the trial court erred in refusing to give to the jury the following special charge requested by it before argument:

■ “8. I now charge you that Mr. Bicher seated as he was in the front seat by the side of Mr. Adams, the driver, was required to reasonably use his faculties of sight and hearing to observe and avoid any impending dangers incident to such driving along a country pike during the nighttime, and apprise the driver of the machine as would a person of reasonable and ordinary prudence under the same or similar circumstances.”

It is insisted that within the rule declared in The Toledo Railways & Light Co. v. Mayers, 93 Ohio St., 304, the above charge should have been given.

In that case, where a guest of the owner and driver was injured, it was held that the negligence of the -driver of an automobile which comes into collision with a street car is not imputable to the guest, although the guest is required to exercise ordinary care for his own safety and to reasonably use his faculties, of sight and hearing to avoid danger incident to crossing the track. But it is the function of the jury to determine from the facts shown in each case whether the injured person used such care, and what care the circumstances required.

Plaintiff in error by the request made desired the court to instruct the jury what in the particular circumstances of this case a person of reasonable and ordinary prudence would do. Such a thing can only be determined from the circumstances, and these the jury must find. They might find that under the facts of a particular case a person who is not driving, but is merely a guest, might, under the circumstances disclosed in that case, rely on the driver without being negligent or imprudent. Especially would this be true if there was nothing in the situation indicating probable danger.

Moreover, the court gave to the jury seven special charges requested by defendant (plaintiff in error), in two of which, numbers six and seven, the duty of decedent to exercise ordinary care for his own safety in avoiding danger incident to such driving along a country road in the nighttime is fully stated.

We do not find any reason to interfere, and the judgment will be affirmed.

Judgment affirmed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.  