
    Mast v. Lehman, a Minor, et al.
    (No. 124612
    Decided January 7, 1965.)
    
      Messrs. Smith S SchnacJce, for plaintiffs.
    
      Messrs. Altich & McDaniel, for defendants Nellis.
    
      Messrs. Wm. C. Ailes & Associates, for defendants Lehman.
   Mills, J.

This cause is before the court upon the motion of the plaintiffs to vacate the entry sustaining the demurrer of defendants Joseph Henry Nellis, Jr., and Joseph Henry Nellis, Sr., filed December 22,1964.

The plaintiffs allege that on July 9,1962 plaintiff Joseph L. Mast was operating a 1957 Dodge automobile on State Route 48, Washington Township, Montgomery County, Ohio, in a southerly direction on the west half of the highway; that Eugene P. Lehman and Joseph Henry Nellis, Jr., were operating automobiles side by side on Route 48 at seventy miles per hour, in a southerly direction, where the prima facie lawful speed limit was sixty miles per hour; that defendant Eugene Paul Lehman was operating a 1955 Buick automobile and was in the same lane of travel as the plaintiffs; that defendant Joseph Henry Nellis, Jr., was operating a 1956 Chevrolet automobile and was in the lane of traffic immediately east of the plaintiffs. That defendant Eugene Paul Lehman drove into the rear of plaintiffs’ vehicle causing it to go off the roadway into a ravine adjacent to the west side of said roadway, causing injury.

Plaintiffs further say the collision and injuries were proximately caused by the negligence of both defendants.

There is no allegation that plaintiff’s automobile was struck by the automobile driven by Joseph Henry Nellis, Jr., but that the automobile of plaintiffs was struck in the rear by the automobile driven by Eugene P. Lehman.

Joseph Henry Nellis, Jr., and Joseph Henry Nellis, Sr., demurred to the amended petition of plaintiffs for the reason that on its face it does not state facts sufficient to show cause of action against the defendants, Nellis.

Section 4511.251 of the Eevised Code of Ohio defines drag racing on public highways, as follows:

“(A) Drag racing is defined as the operation of two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other or the operation of one or more vehicles over a common selected course, from the same point to the same point, wherein timing is made of the participating vehicles involving competitive accelerations or speeds. Persons rendering assistance in any manner to such competitive use of vehicles shall be equally charged as the participants. The operation of two or more vehicles side by side either at speeds in excess of prima facie lawful speeds established by divisions (a) to (g) inclusive, of Section 4511.21 of the Eevised Code or rapidly accelerating from a common starting point to a speed in excess of such prima facie lawful speeds shall be prima facie evidence of drag racing.
“(B) No person shall participate in a drag race as defined in division (A) of this section upon any public road, street, or highway in this state.”

Section 4511.21, Eevised Code, defines the speed limits; Eoute 48 is a state highway and seventy miles an hour at this location is an unlawful rate of speed.

Volume TV, Eestatement of the Law of Torts, Chapter 44, Section 875 reads:

“Except as stated in Sec. 881, each of two or more persons whose tortious conduct is a legal cause of harm to another is liable to the other for the entire harm.”

Section 876 from the same volume reads:

“For harm resulting to a third person from the tortious conduct of another, a person is liable if he
(a) orders or induces such conduct, knowing of the conditions under which the act is done or intending the consequences which ensue, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.”

In Shipper, Admr., v. Hartley, 242 S. C. 221, 130 S. E. 2d 486, paragraphs 2, 3 and 4 of the syllabus read:

“Where appellant was participating in a race with two other motorists on a public highway and one of the other automobiles collided with automobile in which plaintiff’s decedent was riding as a passenger, the appellant was jointly and concurrently liable with the other racing motorists.
“Violation of an applicable statute is negligence per se, and whether such breach contributes as a proximate cause to a plaintiff’s injury is ordinarily a question for jury.
“Negligence need not be sole cause of injury in order to impose liability, but need only be a proximate concurring cause, which is a cause so efficient in causation that but for it the injury would not have occurred, even though one of several concurring causes may not have been reasonably anticipated.”

In Boykin, Admx., v. Bennett, 253 N. C. 725, 118 S. E. 2d 12, decided by the Supreme Court of North Carolina, January 20, 1961, it was held that violation of the racing statute is negligence per se. Those who participate are on a joint venture and are encouraging and inciting each other. The primary negligence involved is the race itself. All who wilfully participate in speed competition between motor vehicles on a public highway are jointly and concurrently negligent.

Thomas v. Rasmussen, 106 Neb. 442, 184 N. W. 104, holds:

“Where a person is injured by the racing of two or more other parties on a public highway, all engaged in the racing are liable, although only one of the vehicles came in contact with the injured person or the vehicle in which he is riding.”

Brown, Admr., v. Thayer, 212 Mass. 392, 99 N. E. 237, was decided in 1912 by the Supreme Court of Massachusetts, and while it was a carriage drawn by two horses, the court followed the same principle of the law.

The same principle is set forth in Landers v. Ice Cream Company, which is a Georgia case, reported in 106 S. E. 2d 325, at page 329; in Berry on Automobiles, 2d edition, section 184, and Berry on Automobiles, Vol. 2, page 467; in 60 C. J., Sec. 297, page 702; in Reader v. Ottis, 147 Minn. 335; 180 N. W. 117.

The court, therefore, is of the opinion that plaintiffs have a concurrent negligence action against both parties defendant herein, and that the motion of plaintiffs to vacate the entry sustaining the demurrer of the defendants, Nellis, should be sustained.

Motion sustained.  