15 Ohio App. 102 | Ohio Ct. App. | 1921
The plaintiff in error in this action seeks to reverse the judgment of the court of common pleas in an action in which the defendant in error, M. Pollock, was plaintiff, and the plaintiff in error, Glen Webster, was defendant.
For convenience, we will refer to these parties, plaintiff and defendant, as they appeared in the court below.
Pollock brought an action in the court of common pleas claiming that his damage occasioned by the injury to the cattle was caused by the reckless driving and operating of the automobile by Webster.
Webster filed an answer to this petition in which he denied that the collision between the automobile and the cattle was caused by any negligent act of his. He further filed a cross-petition in which he asked compensation for the loss which he suffered by reason of the damage to his automobile.
He alleges that immediately before the accident he was passing three other automobiles going in the opposite direction; that he, as required by the Code of this state, dimmed his lights, and for that reason was unable to see ahead of his car, and that just as he passed the last automobile he was right upon this herd of cattle; that he could not stop, and attempted to turn his car so as to avoid injury to the cattle, but struck the cattle, with the result that his automobile was damaged.
He alleges that the plaintiff was negligent in not carrying lights while driving the cattle along the public highway, and in not making any outcry to
There is a sharp conflict between the testimony of: the plaintiff and the defendant in this- action. It appears that it had been raining shortly before the accident, and that the night was very dark, so that the operator of an automobile was. unable to see the public highway except from the lights on his automobile.
The errors complained of in the court below are claimed to be in the charge.
The. court charged the jury that it was the duty of Webster, in- driving his. car on the public Mghway on this night, to keep it in such control that the car could be stopped witMn the range of the light produced from the lamps of Ms automobile. In this charge, the court said to the jury that it was the duty of the defendant to drive his car at such a rate of speed that if there was an obstruction in the road he could stop within the distance that the obstruction could be seen from the lights on his machine.
The legislature of this state, and perhaps of all the states, now requires motor vehicles, when operated upon the public highways in the nighttime, to be.equipped with lights, and that the lights be kept burning. This requirement is for the safety of travelers on the public highway.
The only object that the legislature could have in enacting such a provision is to enable persons traveling on the Mghway to see the approach of a motor vehicle, and further to enable the operator of the automobile to see any obstruction or traffic that may b.e on the public highway, in time to avoid run
But it is urged, that, although this may be a legal requirement under ordinary conditions, at the time of this accident, or immediately before, the defendant had his lights dimmed under the requirement of Section 12614-1, General Code (107 O. L., 540), and for that reason the principle does not apply in this case. He claims that he was right up on these, cattle when he turned his lights on after passing the other automobiles. and that for that reason the principle should not have been given in charge to the jury.
This section requires a person operating an automobile in the nighttime, when he is approaching other machines coming in the opposite direction, to dim, control, deflect or so adjust the lights on.his automobile that at a distance of two hundred feet or
This act of the legislature was intended to make travel on the highway, at times when automobiles are passing, safer than if they are permitted to pass without the intensified rays from their lights being controlled.
The same rule of safety would require the operator of an automobile to reduce the speed, so that he would have his car under control at that time just as much so as at other times, in order to avoid coming in collision with other objects on the highway.
We can see no reason why the principle above announced should not apply while cars are passing. The operator of an automobile is not excused from the legal requirement to have his machine under control when the lights on his machine are dimmed while passing other machines, under the provision of the Code. Knoxville Ry. & Light Co. v. Vangilder, 132 Tenn., 487; 178 S. W. Rep., 1117, and Pietsch v. McCarthey, supra.
It was further urged that the court erred in not directing the jury that if they found that the plaintiff was driving his cattle along the public highway on this night without lights, that he was guilty of negligence as a matter of law. This, the court did not do, but charged the jury that it was a question of fact for them to determine from the evidence whether he was in the exercise of ordinary care in driving the cattle along the highway without lights.
Prior to these legislative enactments, we think the principle had never been announced that it was negligence per se for a traveler on the public highway to fail to have his vehicle lighted. It was a question whether, under all the circumstances- of each particular case, the failure to carry lights was negligence.
In the absence of a statutory requirement, it is not negligence per se for a person driving cattle on the public highway in the night season to fail to carry lights, but it is a fact for the jury to determine under the evidence whether a person, so doing, is in the exercise of ordinary care. Bombard v. Newton, 94 Vt., 354, 111 Atl. Rep., 510, 512.
The only other error urged was that the court did not properly charge the jury with regard to the exercise of ordinary care on the part of plaintiff while driving these cattle on the highway. "Without here quoting the part of the charge complained of, or making further reference thereto, we think that the defendant has no right to complain of that part of the charge as given.
Judgment affirmed.
