The cases and comments abound with discussion as to which view of the “per diem” or “mathematical” argument represents the weight of authority in this country. See Annotation, 60 A. L. R. 2d 1347, 1350; 28 Univ. of Cincinnati L. Rev. 138. Nevertheless, a majority of this court is persuaded to adopt a rule favorable to its use, under proper circumstances, by the force of the reasoning expressed in a number of opinions of our sister state courts. Corkery v. Greenberg, *99253 Iowa 846, 854, 114 N. W. 2d 327; 1 Caley v. Manicke, 29 Ill. App. 2d 323, 336, 173 N. E. 2d 209; 2 Four-County Electric Power *100Assn. v. Clardy, 221 Miss. 403, 430, 73 So. 2d 144.”3
Some of the more serious considerations advanced against permitting the argument are that (1) it displaces the common knowledge and experience possessed by a jury of the nature of pain and suffering, (2) it ignores the fact that pain is generally intermittent, (3) it makes no allowance for a discount for the present use of the total award, and (4) it stretches speculation to absurdity in that pain measured by, for example, a penny a second is equal to $31,536 a year.
These objections will be disposed of in the same order: (1) The practical fact is that no one intimately experienced with a situation similar to that of the plaintiff in any case would be permitted to sit on a jury; hence, the average juror is unacquainted with the type of pain or suffering which he is called upon to translate into monetary value. (2) Intermittent pain may be, but suffering the loss of a member or of normal activities is continual. (3) An award in gross is never discounted by the court and, if by the jury, the factor used is never disclosed. *101(4) The absurdity of any hypothesis is fair game for the opposing party. Caley v. Manicke, supra (29 Ill. App. 2d 323)4
The position against the argument in question comes close to a position against any monetary recovery for pain and suffering whatsoever, which of course, is not urged here.
We do not think impropriety could have been seriously urged with respect to counsel’s reference to plaintiffs’ preinjury earnings of $35 a week in seeking compensation for future loss of earnings. That she had earned that amount was in evidence. But, that she could have earned the same amount for every remaining year of her life until normal retirement was merely counsel’s suggestion of a weekly rate upon which the jury was permitted to base its verdict. Just as permissible was counsel’s suggestion of a daily monetary amount which, when multiplied by a factor fairly reflective of the probable duration of pain and suffering, illustrated the basis for the total amount sought as compensation for that loss.
Counsel did not misrepresent the evidence. The jury could not have been deceived into accepting the argument as evidence, particularly in view of the timely caveat in the charge of the court that the arguments of counsel were not evidence in the case.
However, most of the cases favoring permitting the argument and the better logic supporting them are based, in part, on the equal opportunity afforded the defense for counter*102argument. Here, plaintiffs’ counsel held back until his closing argument, thus depriving the defense of its rebuttal. We believe this went beyond the limits of propriety.
On the other hand, appellant makes no objection to the timing of the argument and claims no prejudice on that ground. We, therefore, find none in this case. Appellant makes no claim that the verdict was excessive, and we cannot find that it was. See Paul W. Brown, J., in Hall v. Burkert, 117 Ohio App. 528, at page 530: “The risk of overpersuasion resulting in excessive verdicts is counsel’s risk. Such a verdict, however, is to be judged on appeal by its excessiveness under all the evidence, applying the usual tests. ’ ’
On this state of the record, we can only say that the judgment here is not invalid merely because the argument was made, in the absence of an objection on the ground of surprise or improper timing and in the absence of a request by appellant to counter-argue.
Although the foregoing disposes of the question upon which this cause was certified to the court, the entire record being now before us (Couk v. Ocean Accident and Guarantee Corp., Ltd., 138 Ohio St. 110), we consider appellant’s contention that final judgment should have been rendered in its favor upon authority of Conneaut v. Naef, 54 Ohio St. 529; or alternatively, that a new trial should have been granted for the refusal of the trial court to give appellant’s Special Instruction B based on the syllabus of Conneaut and in the following form:
“The court charges you as a matter of law that the plaintiffs cannot recover in this case if Mrs. Grossnickle voluntarily walked upon an accumulation of ice which was plainly visible. If you find by preponderance of the evidence that she did so, then you are instructed that you must return a verdict for the village of Germantown.”
The first consideration in this kind of case invariably is whether the hazard was seen or unseen. If seen, there is, of course, a duty to avoid it. In Conneaut, the plaintiff apparently did not claim a lack of knowledge of, or a failure to observe, the ridge of ice several inches in height extending across his path along the sidewalk over which he tripped. Similarly, in Schaefler v. Sandusky, 33 Ohio St. 246 (upon which Conneaut *103was based), plaintiff was walking on a slush and ice-covered sidewalk when he slipped and fell. No claim there was made that the danger was unobserved.
Neither of those cases contains the element of distracted attention as an excuse for failure to observe the danger. They exemplify the doctrine that one who assumes, voluntarily, a known hazard must accept the consequences even though he may have exercised the utmost care. See Indiana Natural Gas & Oil Co. v. O’Brien, 160 Ind. 266, 65 N. E. 918, 66 N. E. 742; Hunn v. Windsor Hotel Co., 119 W. Va. 215, 193 S.E. 57.
Here, where the claim is that the danger was unseen (and appellant does not insist that it was) the more difficult question arises as to the breach of duty which occasions the failure to see. The evidence sufficiently established an issue for the jury as to whether plaintiff exercised that concern for her own safety which an ordinarily prudent person would employ under similar circumstances.
The trial and appellate courts could not ignore, as we cannot, that when plaintiff arrived at the point of danger from the sheet of ice on the sidewalk, just several steps from the street intersection which she proposed to enter, she had the right and, indeed, the duty to concern herself as much with steadying herself and her clothing against the wind, observing the traffic signal in the center of the street and searching for possible traffic turning into her path, as with the conditions under foot.
“The authorities generally are to the effect that one whose attention is diverted is not to be held to the same closeness of observation as he would otherwise be; and where his act, but for such diverted attention, would have been negligent, upon proof tending to show conditions throwing him off his guard, the question of his negligence is one for the jury.” Wheeler v. Sioux Paving Brick Co., 162 Iowa 414, 142 N. W. 400 (attention diverted from dangerous machinery by the approach of a car). See Flattery v. Goode, 240 Iowa 973, 38 N. W. 2d 668 (attention diverted from starting of machinery by sticking of tailgate of truck); Bartels v. Cair-Dem, Inc., 255 Iowa 834, 124 N. W. 2d 514 (attention diverted by display counter); Deane v. Johns-
*104ton (Fla.), 104 So. 2d 3 (attention diverted by employer calling name of plaintiff); Merchants Ice & Cold Storage Co. v. Bargholt, 129 Ky. 60, 110 S. W. 364 (attention diverted to a building which was under discussion); City of Dayton v. Lory, 169 Ky. 94, 183 S. W. 252 (attention diverted by observation of daughter’s activities). See also 25 American Jurisprudence 760, Highways, Section 468; 38 American Jurisprudence 864, Negligence, Section 187; 27 Ohio Jurisprudence 2d 426, Highways and Streets, Section 310.
“If visibility alone settled contributory negligence every case of * * * encountering any stationary object would automatically be a case of non-liability for in all of these cases the condition which caused the harm was visible. The question always is whether the plaintiff used due care for his own safety, taking into account all of the circumstances, of which the visibility of the object encountered is an important one, but still only one of the circumstances.
‘ ‘ The question is whether one should be aware of the danger. This depends largely upon the likelihood of encountering danger. Very rarely do objects from above cause us harm, so persons are not careless who do not go about examining the sky. One need not look for danger unless there is reason to expect it.” City of Jacksonville v. Stokes (Fla.), 74 So. 2d 278.
The rule is not abrogated because the pedestrian might have been familiar with the condition of the sidewalk on prior occasions, since knowledge of that condition, however important, is only a fact to be considered by the jury. Elwell v. Town of Athol, 325 Mass. 41, 88 N. E. 2d 635.
Here the trial court charged the jury in special instruction No. 2 as follows:
“Pedestrians on sidewalks are not required, as a matter of law, to keep their eyes continually sighted on the walk. They are required only to exercise such watchfulness and care for their own safety as persons of ordinary carefulness and prudence would observe under the same or similar circumstances.”
In special instruction No. 6, the court charged: “The court charges you as a matter of law that, if you find by a preponderance of the evidence that Hazel E. Grossnickle was negligent in any way which directly caused or contributed to the *105cause of the accident in which she was injured, then you are instructed that you must bring in a verdict for the village of Germantown, even though you find that the village of German-town was also negligent.”
Similar language was used in the general charge. Thus, the jury was correctly apprised of the duty which the law expects of a pedestrian for her own safety. Every possible conclusion favorable to appellant was available to the jury.
On the other hand, to have given the charge which was requested, but refused, and which was taken from a case in which there was no evidence of distracting elements, would have precluded a finding that the appellee in the exercise of reasonable and ordinary care under the circumstances would not have seen the source of the injury. It is within the province of the jury to make that finding and it did so find in this case.
For the foregoing reasons the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
Matthias, Herbert and Brown, JJ., concur.