Skinner v. Penna Rd. Co.

• Decision Date: 21 June 1933
• Docket Number: 23837
• Parties: Skinner v. The Pennsylvania Rd. Co.
• Court: Ohio Supreme Court

186 N.E. 722

127 Ohio St. 69

Skinner v. The Pennsylvania Rd. Co.

No. 23837

Supreme Court of Ohio

June 21, 1933

Motor vehicles - Operating at speed to permit stopping within assured clear distance ahead - Section 12603, General Code - Specific requirement of law - Violation of statute negligence per se.

The language of Section 12603, 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.

On November 17, 1930, plaintiff in error, Skinner, was the owner of an automobile in which he and a young lady by the name of Hohler were returning to their homes in Norwalk, Ohio, after a visit in Springfield, Ohio. They were traveling the same route they had used on the first part of their trip. It was about 2:30 o'clock in the morning when they arrived at Bucyrus. Skinner had been doing the driving, but here he exchanged seats with Miss Hohler for the purpose of having her drive the remaining distance. The night was "rainy misty and foggy." Shortly after they left Bucyrus Skinner fell asleep. As Miss Hohler was driving toward Norwalk at the admitted speed of approximately forty miles per hour she suddenly saw a freight train standing across the highway about four or five feet ahead. She was of course unable to stop the automobile or change its course, and a collision resulted.

Skinner brought this action against the railroad company to recover for injuries to his person and for property damage to his automobile. The trial in the court of common pleas resulted in a verdict and judgment in his favor in the sum of $1,800. This judgment was reversed by the Court of Appeals for error by the trial court in refusing to direct a verdict on the ground of contributory negligence as a matter of law. The Court of Appeals also rendered final judgment for the defendant in error. The case is now in this court by reason of the allowance of a motion to certify.

Messrs Young & Young, for plaintiff in error.

Messrs King, Flynn & Frohman, for defendant in error.

WEYGANDT C. J.

It is not disputed that Miss Hohler was acting as Skinner's agent and that any negligence of hers proximately contributing to produce his injuries would prevent his recovery. Therefore the one important question presented is whether the record shows such negligence as a matter of law.

On July 21, 1929, Section 12603, General Code, became effective as amended by the addition of the following words: "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."

No reported Ohio decisions have been cited containing an interpretation of this language. However, in 1927, the state of Michigan enacted a similar statute. Apparently it served as the model for the later Ohio legislation. With this in mind it is important to note that in the case of Bowmaster v. William H. DePree Co., 252 Mich. 505, 233 N.W. 395, the following language was used:

The defendant Van Ark was driving his automobile upon the highway at a speed greater than permitted him to bring it to a stop within the assured clear distance ahead, in violation of the plain provisions of the statute, and we think was guilty of negligence as a matter of law."

Then too, it should be remembered that under the well-recognized general rule the violation of...