
    Miller v. Trummer, Admx.
    (Decided October 11, 1934.)
    
      Mr. M. C. Moore, for plaintiff in error.
    
      Messrs. Seeman & Seeman, for defendant in error.
   Lemert, J.

This cause is in this court upon a petition in error from the Common Pleas Court of Stark county. The uncontroverted facts are as follows:

The Louisville-Freeburg road is a public highway running east and west from Louisville to Yeagley’s Corners in Stark county, and is paved with brick and is about sixteen feet wide. At the time of the happening of the accident herein complained of, there was being operated a cider mill on the north side of said Louisville-Freeburg road. On the nineteenth day of November, 1931, the plaintiff’s decedent, Alfred Trummer, together with his son, had taken a load of apples to the cider mill to be made into cider.

Decedent’s son drove the team of horses attached to his wagon from the rear of the cider mill to the front and adjacent to the improved highway, and backed the wagon to the loading platform for the purpose of loading the barrels of cider. Plaintiff’s decedent at the time was standing to the west and close to the team of horses, it being conceded and admitted that it was after dark. Defendant at such time and place was driving a Pontiac coupe in a westerly direction upon the highway. The team of horses was standing on the highway with their heads and front feet at or near the north curb line, and defendant, driving westerly as aforesaid, struck the lead or left horse with the corner of the top of his coupe, inflicting a wound upon such horse, from which it later died. The left or lead horse was knocked down and the right or off-side horse was left standing. Plaintiff’s decedent suffered injury from which he later died. It is conceded that there were no lights of any kind either upon the horses or the wagon of plaintiff’s decedent.

The jury in the case below awarded damages in favor of the plaintiff in the sum of $564. The principal errors complained of in this case are that the court erred in overruling motion of plaintiff in error to direct a verdict at the close of the testimony of plaintiff below, and erred in overruling said motion to direct a verdict at the close of all the testimony in the ease.

Plaintiff in error contends that the violation of the statutory provision with reference to lights by the decedent was negligence that precludes a recovery in this case, even if we should admit that the defendant below was negligent. We have carefully examined the record before us and are of the opinion that the testimony clearly shows that the place around the cider mill was well lighted and so well lighted that even though the wagon had been standing on the public highway with a light as the law requires, it would not have assisted or aided the defendant in error in avoiding the collision. This is borne out by the record.

Since the record clearly shows that there was testimony to the effect that the lights around the cider mill were sufficient to enable the defendant to see an object, it was for the jury to say whether the plaintiff contributed to his injury.

In the case of Hanser v. Youngs, 212 Mich., 508, 180 N. W., 409, it is held that the absence of a tail light on a disabled motor truck which is standing on the traveled portion of a street underneath an arc light is not, as a matter of law, a contributing cause to the injury of a person, who, while standing by such truck, is struck by a passing automobile.

It is the duty of a person driving a ear to comply with the laws, and noncompliance is frequently regarded as negligence. “But such noncompliance is not necessarily a proximate or contributing cause of an accident in which such vehicle is concerned. ” 42 Corpus Juris, 1012, Section 744. Under this notation the author refers to the Hanser v. Youngs case with the heading: “Vehicle standing under arc light.”

The testimony clearly shows that the place where the collision occurred was so well lighted up that it was impossible for anyone who was observing not to have seen the horses. The horses and wagon were backed up at an angle of about forty-five degrees and the heads of the horses were about two feet north of the paved road. If this be true, the jury could then have found that the wagon was not on the public highway and there is no law requiring the person to have a lantern attached to the head of the horse or horses.

The further contention is made that the verdict was a compromise. With this we do not agree. The prayer of the petition in the court below was for $728. The jury found for the plaintiff below in the sum of $564. There was evidence to warrant such finding.

We find no error in this case and the judgment of the court below will be, and the same is hereby, affirmed.

Judgment affirmed.

Sherick, P. J., and Montgomery, J., concur.  