
    Page v. Neiland et al.
    (Decided February 18, 1929.)
    
      Messrs. Dunn & Dunn and Mr. George A. Cheney, for plaintiff in error. ■
    
      Mr. N. R. Harrington, for defendants in error.
   Lloyd, J.

At about 8 o’clock p. m., of October 31, 1927, plaintiff in error, Albert Page, was traveling in his automobile in a southerly direction on the Dixie Highway, being at that time about five miles north of Bowling Green.. He there and then observed an automobile approaching from the south. The headlights on both automobiles were burning and dimmed, but the evidence does not disclose for what distance the light was thrown ahead from the respective automobiles so approaching each other. Page testifies that he was driving his car, an Oakland sedan, at a speed of 25 to 30 miles an hour, and that the “lights” on the approaching car “were not blinding lights,” but “interfered with my vision slightly;” that, because of the condition of these lights, his vision was impaired, and that he could not see as plainly as he otherwise could; that to pass the on-coming automobile he kept to the right side of the road, and when about 20 feet therefrom he saw an obstruction in front of him, and, not then having time to stop, or to change his course, collided therewith. The automobile approaching from the south, proceeding at a speed of from 25 to 30 miles an hour, passed Page at practically the time of the collision, and according to his testimony “side-swiped” his automobile, which by the impact of the collision had been “kind of throwed to the left.” The obstruction which confronted Page was a large-sized truck owned by John Neiland, was headed south, and parked on the west side of the highway, which was the right side of the road for vehicles proceeding in that direction. This truck was in charge of the defendant in error Gorhan and another employe named Myers, and had been so parked for at least three hours prior to the collision, something having happened which required repairing it before it could proceed, and during all of this time there was no light of any kind at the rear of the truck and no warning given to vehicles approaching from the north that it was standing there. The night was very dark, a storm was threatening and there were intermittent flashes of lightning. As a result of the collision, the automobile of Page was damaged, and he commenced an action in the court of common pleas against Neiland, Gorhan, and Myers to recover compensation for the damage so done. Myers was not served with summons, nor did he enter his appearance therein.

Page alleges in his petition that: “While he was so driving his machine on said highway he observed approaching him from the south another machine, going in a northerly direction, and with its lights on; that as he observed the said machine coming toward him he kept to the right side of the road with his dimmers on, so as to properly pass said machine, when, without any warning, there appeared directly in his path another machine, which was a truck, standing parked on said highway on the right hand side thereof and on the traveled portion of said highway, without any lights of any kind whatever; that because of facing the lights of the approaching machine he was unable to see and did not see said truck until he was so close to it that it was impossible to stop, and that as a result thereof he collided with the rear end of said truck with such force as to throw his machine over into the path of the approaching machine, which then collided with his machine.”

He alleges that the truck with which he so collided was owned by Neiland, and was in charge of, and being driven by, two of his employes, Gorhan and, Myers; that the truck had been parked on the highway for several hours prior to 8 o’clock p. m., the time of the collision, without any rear light or signal of any kind to indicate that it was so parked; and that the resulting collision and damage to his automobile were proximately caused by said unlawful parking of said truck. Neiland and Glorhan filed separate answers to the petition of plaintiff in error; each being in form a general denial. At the trial, when Page as plaintiff rested his case, the court, upon motion of the defendants Neiland and Glorhan, directed the jury to return a verdict in their favor, which was accordingly done. Page seeks to reverse the judgment entered thereon; the error charged being that the trial judge erred in so directing a verdict.

The bill of exceptions discloses that the trial judge gave as his reason for so doing that “he (Page) places the blame for his collision upon the fact that there was an automobile coming with lights, and those lights so blinded him and obscured his vision that he was unable to see ahead; to look ahead and see this truck. If he was in that condition so as to be unable to see ahead, it was his duty to lessen the speed of his automobile so that he might stop if any obstruction came within his view before his automobile reached that obstruction, and because of his failure to do this he was guilty of negligence that contributed directly to the injury that he received, and he is not entitled to recover in this case.” In other words, the absolute duty of Page was to operate his automobile at such a rate of speed that he could stop it within the distance that the truck could be seen by him. The evidence, as has already been said, does not disclose how far the dimmed lights from the headlights thereon shone on the pavement in front of his automobile, but, assuming that this distance was less than that required by Sections 6310-1, 12614-2 and 12614-3, General Code, as defendants in error seem to assume was the fact because the lights were dimmed, such fact, although negligence per se, would not determine what was the proximate cause of the collision. Admittedly not only is it negligence to permit a truck to stand upon the highway in the nighttime with no light thereon, but as was said by this court in the case of Mostov v. Unkefer, 24 Ohio App., 420, 157 N. E., 714, to do so is gross negligence. Unless he knew, or in the exercise of ordinary care would have known, thereof, Page was not bound to assume that a truck would be left on the traveled portion of the highway without a warning light thereon, but, on the contrary, had a right to assume and proceed on the basis of that assumption that no such emergency would arise. To hold that the driver of an automobile is guilty of contributory negligence as a matter of law if he operates his automobile at night at such a rate of speed that he cannot stop upon seeing an unlighted truck standing on the highway before colliding therewith is to invite rather than discourage similiar acts of negligence, and provides a rule of avoidance, instead of observance, of the duty imposed on those operating motor vehicles on public highways in the nighttime to provide some lights or signals, as the law requires, for the protection of others traveling thereon.

It may well be that a jury would find that the failure to have a proper light on the rear of the truck was the proximate cause of the accident, and it might so find, regardless of whether or not the headlights on the Page car cast a light on the roadway for the distance required by statute. If he violated a statute in that regard, he would be guilty of negligence per se, but, in our judgment, whether, if he was so negligent, such negligence was the proximate cause of the collision in question, is for the jury to say. We cannot say as a matter of law, under the facts and circumstances disclosed by the evidence, that all fair-minded and reasonable men would agree that Page was guilty of contributory negligence, and we therefore conclude that the judgment of the court of common pleas must be reversed and the action remanded for a new trial.

In our judgment, a careful reading of the opinion of the Supreme Court in Tresise v. Ashdown, Admr., 118 Ohio St., 307, 160 N. E., 898, 58 A. L. R., 1476, especially in view of the authorities cited with approval at page 313 thereof (160 N. E., 899), justifies and requires this conclusion. The following authorities are in accord with those there cited: Moyer v. Vaughan’s Seed Store, 242 Ill. App., 308; Seibert v. A. Goldstein Co., 99 N. J. Law, 200, 122 A., 821; Coca Cola Bottling Co. v. Shipp, 174 Ark., 130, 297 S. W., 856. We call attention, also, to the case of Doran v. Bethards, 26 Ohio App., 426, 160 N. E., 110.

For the reasons given, the judgment of the court of common pleas is reversed, and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Williams and Richards, JJ., concur.  