Schroff v. Foley Construction Co. , 87 Ohio App. 277 ( 1950 )

I respectfully dissent from the majority opinion of the court.

The circumstances of this case impress me as sufficient to legally excuse the plaintiff from the application of the "assured-clear-distance-ahead" rule.

Approaching the barricade across his right lane, he exercised due care, and stopped within the assured clear distance ahead. He is charged at this point with observing the entire discernible barricade presented to view, including the boom, crane, lights, etc., which was incident to a ditch construction job. He was, therefore, apprised that the danger barricaded against was an open ditch below the surface of the street or the mound created by the back filling thereof.

The left or north half of the street was open, so that in conjunction with the barricade on the right, it amounted to an invitation tantamount to an audible direction for traffic to proceed at this point over the north half of the road.

Required to go to his left, plaintiff proceeded as any ordinarily prudent person would do, and turned sharply left in low gear to the left half of the highway. At this point, his assured clear distance was only the width of the left half of the street. He was, therefore, required almost immediately to turn right and straighten his vehicle into the traveled portion of the left half of the street and under the fresh impetus of his low gear, and possibly, from the record, before he had traveled the distance within the range of his lights and before the lights had completed their swing to the right, so as to illuminate the whole width of the north half of the street, his vehicle collided with the diminished end or area of the boom projecting and suspended several feet in the air into the path to which plaintiff had been directed, and before he had time to discern the not easily discernible dark object which was the diminished area presented by the end of the boom.

It seems to me that plaintiff was not required to anticipate, particularly after being apprised that the danger to be apprehended lay at the surface of and below the street, that a veritable trap in the form of the end of a crane boom would be suspended in midair at the right edge of the lane of traffic, which he was directed and required to use.

The situation here seems similar to that in Hangen, a Minor, v. Hadfield, 135 Ohio St. 281, 20 N.E.2d 715, wherein it is said in the third paragraph of the syllabus:

"These provisions of Section 12603, General Code, do not require the driver of a motor vehicle approaching the crest of a hill on a public highway to anticipate that his proper path will be obstructed by another automobile driven in the opposite direction in a manner contrary to law."

The case of Farris v. City of Columbus, 85 Ohio App. 385,85 N.E.2d 605, seems a somewhat similar and exceptional case, wherein it was held in the third, fourth and fifth paragraphs of the syllabus:

"3. The ``assured clear distance ahead' rule is not applicable unless it be shown that the obstruction or defect which caused the accident is discernible, and discernible in time to permit the driver to avoid it.

"4. The ``assured clear distance ahead' rule has no application where the obstacle in front is for the first time in the driver's view, after the vehicle has passed the point where the rule would be effective, and the obstacle is then too close to be avoided.

"5. Where the plaintiff, riding on a motorcycle, was following an automobile at a reasonable distance, and where both vehicles were traveling at a reasonable and lawful rate of speed, and where the automobile suddenly swerved from its path to avoid striking a hole in the street, the hole for the first time coming into the plaintiff's view, after the plaintiff was too close to avoid striking the hole, the ``assured clear distance ahead' rule has no application."

Summing up, it seems to me that in the act of swinging sharply left around the end of the barricade and straightening his vehicle sharply right into the lane of travel, the end of the boom, negligently suspended over the traveled portion of that half of the road, was, in effect, projected into the distance ahead of plaintiff so suddenly that the element of lack of time involved provides a legal excuse from the strict application of the doctrine of assured clear distance ahead.

I, therefore, think that a jury question was presented.