Salome Harmon was driving the automobile of George Harmon on an intercounty highway in an eastwardly direction. Willie Jones was driving along a road in a southerly direction, and at the intersection of these two roads, there occurred a collision between the two automobiles, both cars being damaged.
The Harmons sued Jones in Logan Common Pleas for damages to their car. Jones, by cross-petition, pleaded the doctrine of last clear chance an dprayed for damages to his car. Salome Harmon testified that she saw Jones’ car and that he was so close to it that she believed by speeding up she could avoid the collision which seemed imminent. Jones testified that he was travelling about 15 miles an hour and at about 500 feet from the highway looked for approaching vehicles but failed to observe any; and was aware that travelers on that highway had the right of way.
The jury returned a verdict against plaintiffs on their amended petition and against defendant on his amended cross-petition. Judgment was rendered on the verdict and error was prosecuted by plaintiffs who claimed that there was error in the introduction and rejection of evidence; in the refusal to charge before argument; in the charge given before argument, and in the general charge. The Court of Appeals held:
1. Sections 6310-30 GC. provides that an intercounty highway is a main thoroughfare and 6310-31 GC. provides that vehicles going on main thoroughfares have the rig'ht of way over those on intersecting roads.
2. Plaintiff’s automobile, being upon a main thoroughfare, had the right to proceed uninterruptedly in a lawful manner in the direction it was moving, in preference to defendant’s car approaching from a different direction.
3. The driver of plaintiff’s ear was not required to anticipate that defendant would disobey the law by failing to yield to her the right of way; and only when she saw or by exercise of ordinary care should have seen that defendant was about to drive into her pathj was she called upon to use ordinary care, and then only to use ordinary care under the circumstances.
4. Under the circumstances, a greater degree of care was required of the defendant than of Harmon and as the request of plaintiff that “Greater care to avoid a collision is imposed on the driver not having the right of way than upon the other, etc,” is a correct statement of the law, was pertinent to the issues in the case and was not covered by another charge before argument on the same subject and it should have been given, the refusal of which was error. 101 OS. 282.
5. Under the pleadings and admissions of defendant, he was guilty of negligence per se, and the court should have so charged. The question of defendant’s negligence was not submissible tp the jury, and the charge, given thereon was erroneous and prejudicial.
6. “The doctrine of last chance as formulated in 49 OS. 230, does not apply where plaintiff has been negligent, and his negligence continues, and concurrently with the negligence of defendant, directly contributes to produce the injury; it applies only where there is negligence of the defendant subsequent to, and not contemporaneous with, negligence of the plaintiff, so that the negligence of the defendant is clearly the proximate cause of the injury and that of the plaintiff the remote cause. 76 OS. 234.
7. The doctrine of last chance did not apply in this case and the charge by the court thereon was erroneous and prejudicial.
Judgment reversed and cause remanded.
(Warden & Crow, JJ., concur.)