
    Spreng v. Flaherty.
    (Decided January 5, 1931.)
    
      Mr. G. H. Hock and Mr. M. G. Thraves, for plaintiff in error.
    
      Mr. E. B. Voorhees and Mr. W. J. Mead, for defendant in error.
   Richards, J.

This is an action to recover damages for personal injury and injury to an automobile by collision with a stone road roller, and in the court below resulted in a directed verdict for the defendant, M. S. Flaherty, at the close of the evidence offered for the plaintiff.

The collision occurred about midnight on September 22, 1929, while the plaintiff, Edmund O. Spreng, who resides at Perrysburg, was returning with two friends from a trip to Wooster. In traveling north from Fostoria they reached a point on what is known as state route No. 23, where the road was under construction, and a sign showed that the road was closed. In order to make the detour they turned to the right, and then followed a road nearly parallel with route 23 and distant a mile or two therefrom. They followed this detour for a considerable distance, passing intersecting roads, on which they saw signs indicating that the approach to route 23 was closed, and they continued north on the detour until they reached a road where there was no sign erected showing that the road was closed. At this point they turned to the left and traveled for a mile or two until they again reached route 23, and then turned north and pursued their journey. When they again reached route 23, they traveled north on that route something over a mile until the car struck a road roller standing on a bridge, and having no warning lights. The plaintiff testified that there was no light burning and no sign erected indicating that the road was closed at the point where they left the detour, or at any other point between there and the place where the collision occurred.

He testified that he was traveling at the rate of from 20 to 25 miles an hour, when he saw the two road rollers ahead on the bridge, and that as soon as he saw them he did all he could to stop the car and had reduced the speed to from 8 to 10 miles an hour at the time of the collision, but was unable to avoid the collision. Dunbridge Road intersects route 23 about 200 feet south of the bridge on which the rollers were located, and he says that he saw these rollers as he passed the north line of the intersection, or shortly thereafter, and he estimates the distance at wMch he first saw the rollers at from 100 to 150 feet. One of the passengers riding with Kim gives the distance at which the rollers were seen as 100 feet.

The plaintiff had known before he took this trip that the road was under construction, or being resurfaced, but he did not know how much of it had been finished. The night was dark, with some fog, and the roadway somewhat slippery.

A verdict was directed for the defendant, evidently upon the contention that the plaintiff was guilty of contributory negligence directly causing the collision.

The plaintiff testified that after the collision they walked back a distance and found a torch on the side of the road not burning, and that, for fear that somebody else pursuing the same route might have a collision, they lighted the torch and set it up in the road. It further appears from the testimony that when plaintiff was traveling north on route 23 three vehicles passed him going south and one passed him going in the same direction that he was traveling. The testimony offered by the plaintiff shows that as soon as the road rollers were discovered, every effort was made to stop his car in time to avoid a collision, but without avail.

The defendant was called by the plaintiff for cross-examination and testified that he had barricades erected, and had a warning torchlight burning between the Dunbridge intersection and the point where the rollers were located, and that he left the light burning when he and his men ceased work on the evening of the 22d of September.

Under this state of the evidence, we are asked to say as a matter of law that the plaintiff was guilty of such contributory negligence as would bar a recovery. The distance at which the plaintiff and his friends saw the rollers is variously estimated, and was at best only a matter of estimate. The ability to stop a car quickly depends upon a variety of circumstances, some of which are the nature of the roadway, and its condition as to being slippery, or, otherwise, and the record contains evidence that this roadway was wet and more or less slippery.

Certainly a court cannot take judicial notice that an automobile traveling from 20 to 25 miles an hour on a certain pavement can be stopped in less than 100 to 150 feet, when the uncontradicted evidence shows it could not be done. And, of course, on a motion by the defendant for a directed verdict the evidence must be construed most favorably for the plaintiff.

In Mostov v. Unkefer, 24 Ohio App., 420, 424, 157 N. E., 714, decided by this court, it appears that -the driver of the car could see by his own lights an object 200 feet ahead, and saw the truck with which he collided when he was 75 or 100 feet from it, and could have stopped his car in from 30 to 50 feet, and yet he recovered a judgment in the court of common pleas, which was affirmed by this court, and the Supreme Court overruled a motion to certify the record.

The rule is stated in Doran v. Bethards, 26 Ohio App., 426, 160 N. E., 110, that the question of contributory negligence of the driver of an automobile approaching an unlighted parked truck in the night season is ordinarily one for the jury, and this court is of opinion that the rule thus stated is applicable to the case at bar.

Holding that the evidence was sufficient to carry the case to the jury, the judgment is reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Williams and Lloyd, JJ., concur.  