Darby v. Jarrett ( 1927 )

By this proceeding in error plaintiff in error seeks a reversal of a judgment entered by the court of common pleas upon a verdict returned in favor of the defendant in error at the trial of the action in that court. We shall refer to the parties herein as plaintiff and defendant, respectively.

On the night of January 20, 1926, the plaintiff, Helen Darby, three year old daughter of Ervin E. and Ethel Darby, seated on her mother's lap, was riding in a Ford touring car driven by her father in a northerly direction on a public highway between Fitchville and Norwalk. The night was dark, the weather misty and foggy, and the highway more or less wet and slippery. On the same evening the defendant, Jarrett, in a Willys-Knight car, was proceeding upon this highway, also in the direction of Norwalk. The lights on his automobile were not burning properly and he stopped at the house of a Mr. Gifford, whose son tried to and apparently did somewhat remedy the trouble, after which Mr. Jarrett and the older Mr. Gifford proceeded toward Norwalk. After going a short distance the lights on the front of his automobile ceased to burn, and defendant stopped his car on the right side of the road; the right rear wheel, he says, being probably 18 inches from the right side of the cement and the front wheel right at the edge of the cement. The center of the road was paved with cement for about 18 feet of its width. Other witnesses testified that the car of the defendant, when stopped, was angling across the road; the front wheels being east of the center of the paved portion of the highway, the rear wheels at or west of the center thereof. The evidence also is in conflict as to whether the red light on the rear of defendant's car was burning when and while it was standing upon the highway, but there is no dispute as to the fact that at the time there was no light or lights on defendant's car visible from the front thereof.

The adult occupants of the Darby car say that although they were looking straight ahead they saw no light and did not see the Jarrett car in time for Mr. Darby to avoid colliding with it. Mr. Gifford testifies that he saw the lights of the approaching Darby car, and jumping from the Jarrett car to the road waved a lighted red lantern. The collision resulted in injury to the infant plaintiff, who admittedly was not in any respect negligent. In behalf of plaintiff it is contended that the trial judge erred in his charge to the jury, in refusing to charge the jury before argument, as requested in writing by the plaintiff, and that the verdict of the jury is manifestly against the weight of the evidence.

There appears to be no error in the proceedings of the trial court prejudicial to the plaintiff except the refusal to give to the jury before the commencement of arguments of counsel the third written instruction requested by plaintiff. This requested instruction reads as follows:

"It is admitted by the defendant that he stopped his automobile on the public highway in question without having lights attached thereto, visible from the front. Such failure was negligence on his part as a matter of law, and if it was a proximate cause of plaintiff's injury, your verdict should be in plaintiff's favor."

The statute upon which counsel for plaintiff based her right to this instruction is Section 12614-3, General Code, which, in so far as it is here applicable, reads:

"It shall be the duty of every person who operates, drives or has upon any public street, avenue, highway or bridge a vehicle on wheels, during the time from one hour after sunset to one hour before sunrise, to have attached thereto a light or lights the rays of which shall be visible at least two hundred feet from the front and two hundred feet from the rear."

This statute applies to all vehicles including motor vehicles, and would seem to differ from the other statutory provisions relating to lights upon motor vehicles in that it applies to nonmoving as well as moving vehicles upon public highways. Any violation of this provision of law is negligence per se. Chesrown v. Bevier, 101 Ohio St. 282, 128 N.E. 94, 13 A.L.R., 308.

Under the facts and circumstances in evidence, the question of whether or not such negligence was a proximate cause of plaintiff's injury should have been submitted to the jury. It was for the jury to say whether the position on the highway of defendant's car was such that a light thereon visible from the front thereof would have been visible in the fog or would have so lighted the pavement or nearby objects as to have been seen by Darby, approaching from the rear, and thereby the collision have been avoided.

The part of the general charge of the court to the jury relating to the subject to which the requested instruction was directed, of course, should have harmonized therewith.

Finding as we do that the trial court erred to the prejudice of plaintiff in refusing to give to the jury before argument the written instruction in question, the judgment is reversed and the cause remanded to that court for a retrial.

Judgment reversed and cause remanded.

RICHARDS and WILLIAMS, JJ., concur.