
    The George Ast Candy Co. v. Kling.
    (No. 21657
    Decided November 20, 1929.)
    
      Mr. Simeon M. Johnson and Messrs. Kelley <& . Remke, for plaintiff in error.
    
      Messrs. Schorr & Wesselmann and Mr. Thos. L. Michie, for defendant in error.
   Marshall, C. J.

This case comes to this court on error from the Court of Appeals of Hamilton county, Ohio. It originated in the court of common pleas of that county as a personal injury case1 growing out of an automobile collision, which occurred on Harrison avenue near the point where Kling avenue intersects. Kling avenue enters Harrison avenue from the east, but does not cross the same. Adolph P. Kling, plaintiff below, was driving a Paige coupe on Kling avenue toward Harrison avemíe and made a left turn into Harrison avenue toward the southeast. A truck belonging to the candy company and driven by its agent came into collision with the coupe at a- point about 50 or 60 feet southeast of the point where the southerly line of Kling avenue, if produced, would meet the west curb of Harrison avenue. Kling, having suffered damages, brought suit against the candy company. The evidence is in conflict as to the exact cause of the collision. Harrison avenue is a main thoroughfare, and, as the coupe entered Harrison avenue, the truck was approaching from the right.

The plaintiff charged that the driver of the truck was negligent in wrongfully attempting to pass plaintiff’s coupe on its right side instead of on its left, and in failing to have the truck under proper and reasonable control in passing said street intersection, and in failing to check the speed of the said truck or to keep proper lookout for the automobile of plaintiff.

The candy company answered that the collision was caused solely by the negligence of plaintiff in driving at a high rate of speed, and further justified the attempt to pass the coupe on the right on the alleged ground that the truck was approaching from the right of the coupe, and therefore had the right of way. The candy company pleaded an ordinance of the city of Cincinnati which provides that ‘ ‘ every driver or operator of a vehicle approaching the intersection of a street shall grant the right of way at such intersection to any vehicle approaching from his right,” etc. Defendant also invoked Section 6310-28a, General Code, as follows:

“Excepting where otherwise hereinafter provided the operator of a vehicle shall yield the right of way at the intersection of its path and the path of another vehicle to the vehicle approaching from the right.”

After both parties had rested, and before the arguments, defendant requested the court to charge the jury, and the court in fact charged:

“If the jury find that both plaintiff and defendant were operating their motor vehicles at the same time on Harrison avenue, and if they should also find that the path of the automobile operated by plaintiff intersected the path of defendant’s truck, approaching from the right, then it was the duty of the plaintiff to yield the right of way to defendant’s truck at the intersection of the path of plaintiff’s automobile with the path of defendant’s truck, and if plaintiff failed so to do, and such failure contributed in any degree to the damages and injuries of which plaintiff complains, then your verdict must be for the defendant as to such damages and injuries.”

The verdict was for the defendant. Plaintiff prosecuted error to the Court of Appeals, and the Court of Appeals reversed the judgment and remanded for new trial on the sole ground that the aforesaid instruction was erroneous.

The instruction virtually stated that the machine approaching from the right had an absolute and unlimited right of way, and interpreted the statute as conferring an inflexible privilege. It must be admitted that the instruction was practically in the language of the statute. The vice of that instruction is that, while it correctly defined the duty of the driver of the coupe, it failed to take into consideration the duty imposed by the common law upon the driver of the truck. The statute is not materially different from Section 6310-31, General Code, relating to the relative rights and duties of vehicles crossing intersecting thoroughfares. That section reads as follows:

“Vehicles and street cars going on main thoroughfares shall have the right of way over those going on intersecting thoroughfares.”

Section 6310-28a, General Code, requires the operator of a vehicle to yield the right of way to another vehicle approaching from the right. In Section 6310-31 it is merely stated that the vehicle on the main thoroughfare shall have the right of way. Manifestly there can be no difference between giving a right of way and requiring the other party to yield the right of way to him. The same rule of interpretation must therefore apply to both sections. In Heidle v. Baldivin, 118 Ohio St., 375, 161 N. E., 44, 58 A. L. R., 1186, this court interpreted Section 6310-31, and declared that the driver having the right of way must proceed in a lawful manner, and that he owes to the driver upon the intersecting highway the duty to exercise ordinary care.

While no two cases are alike, and a definite rule cannot be declared to define the duty of the driver having the right of way, and instructions to the jury must therefore depend upon the peculiar facts and circumstances of each case, the rule was declared in that case that the right of way referred to in the statute is not an absolute or inflexible or unqualified right, but, on the other hand, that it established precedence only when rights might otherwise be evenly balanced.

Heidle v. Baldwin has been several times under discussion at the bar of this court since the date of its rendition, and it has been argued that this court may not declare a rule to be flexible which the Legislature has declared in inflexible terms. Statutes which declare a rule of conduct should be interpreted in the light of the existing evil and the remedy sought. Both these statutes, giving to certain drivers the right of way, should be so construed as to require the drivers having that right to exercise it in a reasonable manner. We are not without very respectable precedent in so declaring. The Sherman Anti-Trust Act (Title 15, Section 1, et seq., U. S. Code) declares that -any combination of capital to create or carry out restrictions in trade or commerce is unlawful, and any contract or agreement in violation thereof is void. The language of the Sherman Anti-Trust Act is unequivocal, unambiguous, and unconditional, and yet has been construed as only forbidding an unreasonable restraint of trade or commerce. The Valentine AntiTrust Law of Ohio (Section 6391 et seq., General Code) is couched in language almost identical with that of the Sherman Anti-Trust Act, and it has been construed by this court as declaring a rule of reason.

The instruction given by the court in the instant case does not contain all the vices of the instruction in Heidle v. Baldwin, and yet the majority of this court, adhering to the declarations in Heidle v. Baldwin, are of the opinion that the court of common pleas in the instant case has violated the rule, and that, in reversing the judgment, the Court of Appeals did not err.

Judgment affirmed.

Kinkade, Robinson, Matthias and Allen, JJ., concur.

Jones, J.,

dissenting. Judge Day and I deem it our duty to explain our noneoncurrence with the syllabus or in the judgment. The right of way sections of our Ohio Code are based upon their practical application, and upon past experience derived from the operation of automobiles over our highways.

Harrison avenue was a main thoroughfare running substantially north and south, and was occupied by a double-track street railway. Kling avenue was a narrower street entering Harrison avenue from the east, and there dead-ending. The one-ton truck of the defendant was being driven southwardly on Harrison avenue, while the plaintiff’s Paige car was being driven westerly on Kling avenue. The vehicle of the defendant (the Ford truck) was approaching this intersection from the Paige car’s right. Section 6310-28a, General Code, provides that “the operator of a vehicle shall yield the right of way at the intersection of its path and the path of another vehicle to the vehicle approaching from the right.” Under this section it became incumbent upon the driver of the Paige car to yield the right of way to the vehicle which was approaching from his right. Under the section immediately preceding, Section 6310-28, General Code, this right of way is defined 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.” Under these two cognate statutes the defendant’s Ford truck, if proceeding in a lawful manner, had the unrestricted right of way upon the main highway as against a vehicle approaching from its left. The vice contained in the syllabus lies in the statement that, although the right of way was yielded to the driver of the Ford truck, by the statute, he was nevertheless bound to exercise the common-law duty of ordinary care. The application of that rule to the instant case relegates the driver of the Ford truck to the same duties as would arise if no statute existed; it deprives him of the advantage of the statute giving him the uninterrupted right of way; it permits the plaintiff to violate the law with impunity, and places both drivers on an equal plane by requiring ordinary care where their paths converge; it emasculates the statute, and requires the defendant, in such a situation, to exercise ordinary care under the rules of the common law, although he may be driving on the main highway in a lawful manner. If the truck were driven in an “unlawful manner” (Section 6310-28, General Code), then, not being within the pale of the statute, such unlawful driving would be negligence per se, and in that event the question to be submitted to the jury would be whether such infraction of the law by the defendant was the sole and proximate cause of the collision.

The special charge requested by the defendant and given by the court was given in the language of the statute, and was based upon the defendant’s theory of the case; the defendant was not bound to amplify the charge by anticipation of what the plaintiff’s theory might be, or to cover the proof claimed to have been established by the plaintiff. The latter could well have requested the court to charge the jury that the statute yielding the right of way to the defendant would not relieve defendant from liability if the jury found that its unlawful speed was the proximate cause of the collision.

There is another cogent reason why the verdict should be sustained and the trial court’s judgment affirmed. The plaintiff’s amended petition alleged that defendant’s servant was driving at a speed greater than 25 miles per hour in violation of Section 12603, General Code. Both parties asked for a special request to be given before argument, and the court gave them both. The special request of the defendant has already been alluded to. The special request of the plaintiff contained the provisions of Section 12603, General Code, and was read by the court to the jury. This section relates to the speed of automobiles within and without municipalities, and in connection with that section the court explicitly advised the jury that, if the defendant operated the truck “at a greater speed than is lawful,” and in violation of law, at the time and place in question, such operation was negligence as a matter of law, and that, if such violation proximately caused plaintiff’s injuries, plaintiff would be entitled to recover if he himself were not guilty of negligence proximately contributing to his injury. It is therefore self-evident that, by the two special-requests given before argument, one for the plaintiff and one for the defendant, the court covered the statutory law applying to the parties at the time when their vehicles approached the converging paths. It ill becomes the plaintiff, who specially requested and had read to the jury Section 12603, General Code, fixing liability for unlawful driving upon the defendant, now to complain that the court erred in giving the defendant’s request to the jury, embodying the terms of Section 6310-28a, G-eneral Code, yielding the right of way to the driver of the truck “approaching from the right.” In view of these two requests, both given before argument, it cannot be said that the defendant was given an absolute and unqualified right of way at the time, for the court explicitly advised the jury before argument that, if the defendant violated the law as to speed, it was negligence as a matter of law, and the defendant was liable if such unlawful driving proximately caused the injury. On the one hand, in defendant’s request, the court charged that, if the plaintiff failed to yield the right of way, and such failure contributed to his injury, he could not recover; on the other hand, in plaintiff’s request, the court charged that, if the defendant violated the speed laws, and such violation proximately caused plaintiff’s injury, the plaintiff would be entitled to recover. We think that the jury were fully advised as to the legal rights of the parties upon those two vital issues of the case; and the jury found,-as shown by the general verdict, in favor of the defendant upon both issues, and must have found in defendant’s favor upon the issue contained in the special request of the plaintiff, that the defendant was not violating the speed laws at the time of the injury. If the driver of the truck was not driving in violation of law, he was entitled to the right of way, and, if plaintiff violated the law in not yielding the right of way, he was guilty of negligence per se and no liability could arise upon the part of the defendant except in case of wanton or gross negligence, or of negligence on defendant’s part after its discovery and appreciation, in sufficient time to avoid injuring him, of the perilous situation in which the plaintiff had placed himself. However, such a situation was neither pleaded nor charged.

Day, J., concurs in this dissenting opinion.  