55 Ohio Law. Abs. 159 | Ohio Ct. App. | 1949
Submitted on motion of appellant to certify the judgment in this case to the Supreme Court as being in conflict with Buddenberg v. Kavanaugh, 11 Oh Ap 252, Court of Appeals of Cuyahoga County. The syllabi of the Buddenberg case hold,
“It is the duty of a driver of an automobile to stop his car when for any reason he cannot see where he is going.”
and that,
“Where a petition recites that plaintiff was blinded by the lights of an approaching machine so as to be unable to see the street ahead of him, and that while so driving he collided with another machine negligently left in the street, the contributory negligence of the plaintiff is apparent and there is nothing to submit to the jury.”
The facts as developed showed that the plaintiff did not stop his machine but changed its course and thereupon the accident occurred. There is no finding that the plaintiff was making any attempt to stop as is developed in the instant cause. Manifestly, there is a period between the time when a person prepares to stop and the moment when the car comes to rest. It was the claim here that it was during the period of time that the car was being brought to a complete stop that the accident occurred.
We are also referred to Becker v. Dayton Power and Light Company, 56 Oh Ap 140, 10 N. E. 2d 36, an opinion by a member of this court. In the Becker case the object with which the plaintiff came in contact was a Power and Light Pole which was not in the street but on the pavement thereof which was not separated from the street by a curb. We determined that under the physical facts appearing there was no issue as to the discernibility of the pole, the object which was struck. In the instant case we are of opinion that there was such an issue.
The motion will be denied.