Bickel v. American Can Co.

Decision Date16 December 1950
Docket NumberNo. 32095,32095
Citation154 Ohio St. 380,96 N.E.2d 4
Parties, 43 O.O. 259 BICKEL v. AMERICAN CAN CO.
CourtOhio Supreme Court

Syllabus by the Court

Under Section 6307-21, General Code, which provides that 'no person shall drive any motor vehicle, trackless trolley or streetcar in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead,' there is no distinction to be made with reference to a discernible object within the assured clear distance, based upon whether that object is moving at a normal speed, a slow speed, or is static.

Roland T. Bickel, appellee, who was plaintiff in the trial court and will hereinafter be so designated, instituted an action against American Can Company, appellant, which was defendant in the trial court and will hereinafter be so designated.

On March 16, 1949, plaintiff filed an amended petition against defendant, to which defendant filed a demurrer upon the ground that such amended petition did not state facts which show a cause of action. The demurrer was sustained and, plaintiff not desiring to plead further, a final judgment was entered against plaintiff.

Upon appeal to the Court of Appeals the judgment of the trial court was reversed and the cause remanded to that court for further proceedings.

A motion was filed in this court to require the Court of Appeals to certify its record, which motion was allowed.

According to the allegations of the amended petition which, on demurrer, we must assume to be true so far as they are relevant and well pleaded, the following facts appear:

At about 8:15 o'clock in the morning of September 1, 1948, plaintiff was driving his automobile in a westerly direction along and upon the north half of the paved portion of U. S. route No. 2, a main thoroughfare running in an easterly and westerly direction.

Plaintiff's automobile was following defendant's automobile which was being driven in a westerly direction upon the north half of the improved part of the highway by defendant's employee who was operating the automobile on defendant's business and within the scope of employment.

Plaintiff desired to pass defendant's automobile, sounded his horn as the signal that he was about to pass, and thereupon turned out to the left of the center line of the roadway. He observed an eastbound automobile approaching at a speed of more than 60 miles an hour, which automobile was not discernible to plaintiff until he had turned out into the south lane. Because of the location of the eastbound automobile and its rate of speed, and in order to avoid a collision with it, plaintiff was obliged to and did immediately turn his automobile back into the righthand lane. The operator of defendant's automobile negligently suddenly stopped the same without first giving any signal whatever to the traffic in the rear, which included plaintiff's automobile, and, because of such negligence of defendant, plaintiff's automobile collided with the rear of defendant's automobile, causing plaintiff to suffer certain personal injuries and damages to his automobile.

Plaintiff alleged that the acts and conduct of defendant's driver were the direct and proximate cause of plaintiff's injuries, loss and damage.

Shumaker, Loop, Kendrick & Winn and Charles W. Peckinpaugh, Jr., all of Toledo, for appellant.

W. W. Campbell and J. S. Rhinefort, Toledo, for appellee.

STEWART, Judge.

The sole question before us is whether, under the allegations in plaintiff's amended petition, a cause of action was stated. This question involves the application of Section 6307-21, General Code, which reads in part as follows:

'* * * and no person shall drive any motor vehicle, trackless trolley or street car in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead.'

The meaning and interpretation of the foregoing statute have been before this court many times, just as similar statutes have been before the courts of other states.

In the case of Skinner v. Pennsylvania R. Co., 127 Ohio St. 69, 186 N.E. 722, the syllabus reads:

'The language of section 12603 [now incorporated in Section 6307-21], General Code, providing that no person shall drive any motor vehicle in and upon any public road or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead, is a specific requirement of law, a violation of which constitutes negligence per se.'

The Skinner case was approved and followed in the case of Gumley, Admr., v. Cowman, 129 Ohio St. 36, 193 N.E. 627.

In the Gumley case the second paragraph of the syllabus reads:

'The present legislative requirement establishes a subjective test whereby a driver is prohibited from operating any motor vehicle in and upon any public road or highway at a rate of speed greater than will permit him to bring it to a stop within the distance at which he can see a discernible object obstructing his path.'

The principles of law pronounced in the Skinner and Gumley cases were reaffirmed in the cases of Kormos v. Cleveland Retail Credit Men's Co., 131 Ohio St. 471, 3 N.E.2d 427, and Higbee Co. v. Lindemann, 131 Ohio St. 479, 3 N.E.2d 426.

The fourth paragraph of the syllabus in the Kormos case reads:

'Section 12603, General Code, enacted for the public safety, has fixed a standard of care, and a failure to comply with such standard is negligence per se. It is the duty of the party failing to comply to offer proof excusing his failure to observe such legal standard of care; and if he fails to do so he is guilty of negligence as a matter of law.'

In the case of Smiley v. Arrow Spring Bed Co., 138 Ohio St. 81, 33 N.E.2d 3, 133 A.L.R. 960, the syllabus reads:

'1. Section 12603, General Code, is a safety measure which, to accomplish its purpose, must be applied according to its clear and unambiguous language.

'2. To comply with the assured clear distance ahead provision of Section 12603, General Code, the driver of a motor vehicle must not operate it at a greater speed than will permit him to...

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17 cases
  • Arrasmith v. Pennsylvania Railroad Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 16 Mayo 1969
    ...171 Ohio St. 383, 171 N.E.2d 496 (1960); Whitaker v. Baumgardner, 167 Ohio St. 167, 146 N.E.2d 729 (1957); Bickel v. American Can Co., 154 Ohio St. 380, 96 N.E.2d 4 (1950); Smiley v. Arrow Spring Bed Co., 138 Ohio St. 81, 33 N.E.2d 3, 133 A.L.R. 960 (1941). See also Carufel v. Chesapeake & ......
  • Smith v. United Properties, Inc., s. 38780
    • United States
    • United States State Supreme Court of Ohio
    • 23 Junio 1965
    ...the court, that motion should have been sustained. '* * * final judgment is rendered for defendant.' See, also, Bickel v. American Can Co. (1950), 154 Ohio St. 380, 96 N.E.2d 4 (where this court approved sustaining demurrer to petition which alleged plaintiff's automobile hit defendant's au......
  • Hipp v. Williams
    • United States
    • United States Court of Appeals (Ohio)
    • 19 Diciembre 1960
    ...directing a verdict for plaintiff as was done in Satterthwaite v. Morgan, Jr., 141 Ohio St. 447, 48 N.E.2d 653, and Bickel v. American Can Co., 154 Ohio St. 380, 96 N.E.2d 4. Especially was this warranted upon the issue of contributory negligence since sufficient evidence was adduced to pre......
  • Rogers v. Anchor Motor Freight, Inc.
    • United States
    • United States Court of Appeals (Ohio)
    • 2 Marzo 1953
    ...Gumley, Adm'r, v. Cowman, 129 Ohio St. 36, 193 N.E. 627; Higbee Co. v. Lindemann, 131 Ohio St. 479, 3 N.E.2d 426; Bickel v. American Can Co., 154 Ohio St. 380, 96 N.E.2d 4, or (2) which appears in his path at a sufficient distance ahead of him to give him time, in the exercise of ordinary c......
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