State v. Kotapish

• Decision Date: 14 December 1960
• Docket Number: No. 36411,36411
• Parties: , 88 A.L.R.2d 1161, 14 O.O.2d 77 STATE of Ohio, Appellee, v. KOTAPISH, Appellant.
• Court: Ohio Supreme Court

Page 349

171 Ohio St. 349

171 N.E.2d 505, 88 A.L.R.2d 1161, 14 O.O.2d 77

STATE of Ohio, Appellee, v. KOTAPISH, Appellant.

No. 36411.

Supreme Court of Ohio.

Dec. 14, 1960.

Syllabus by the Court.

1. Section 4513.20, Revised Code, is a 'law * * * applying to the * * * regulation of traffic' within the meaning of those words as used in Section 4511.18, Revised Code.

2. Where the evidence will support a reasonable conclusion that, if a motor vehicle which struck and killed a pedestrian had had the emergency brakes required by Section 4513.20, Revised Code, the operator of such vehicle could and would have stopped it before it struck that pedestrian, the trier of the facts may find that the violation of Section 4513.20, Revised Code, was a proximate cause of the death of such pedestrian.

Defendant was indicted for manslaughter in the second degree. That crime is defined in Section 4511.18, Revised Code, which reads so far as pertinent:

'No person shall unlawfully and unintentionally kill another while violating any law of this state applying to the use or regulation of traffic.'

The indictment charges that defendant on September 12, 1958 'unlawfully and unintentionally killed Beverly * * * Nash while engaged in the violation of a state law applying to the use and regulations of traffic on, over or across the roads or highways' and then specifies several Code sections.

Defendant plead not guilty, a jury was waived, and the cause was tried to the court.

During the course of the trial and upon motions of defendant, all the sections of the Revised Code specified in the indictment, except Sections 4511.20 and 4513.20, were stricken from the indictment.

So far as pertinent, Section 4511.20, Revised Code, reads:

'No person shall operate a vehicle * * * without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, trackless trolleys, and streetcars, so as to endanger the life, limb, or property of any person while in the lawful use of the streets or highways.'

So far as pertinent, Section 4513.20, Revised Code, reads:

'The following requirements govern as to brake equipment on vehicles:

'(a) Every * * * motor vehicle * * * when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such * * * motor vehicle, including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels * * *.'

The evidence discloses that on the day in question defendant was driving his 1948 Chevrolet truck north on Turney Road in Garfield Heights at a place which was paved to a width of 36 feet; that, as he neared the intersection of that street with Wadsworth Avenue which runs to the east from Turney Road and when defendant was following about two car legths behind another vehicle, the two cars ahead of defendant following about two car lengths behind another vehicle to turn in front of them into Wadsworth; that, when defendant then applied his regular service brakes, they failed to take hold; that, at that time, there was a car parked next to the curb on defendant's right, and defendant drove to his right in front of that car and over the curb at the edge of the pavement and just to the right of a light pole located on the tree lawn next to the curb; that defendant's truck then proceeded on the 10 1/2-foot wide tree lawn, which was between the curb and the sidewalk and on the sidewalk, for a distance of over 41 feet where it hit a large mailbox and knocked it off its four posts to a place 10 feet from where it had been anchored on the tree lawn adjacent to the sidewalk; that defendant's truck continued about 13 more feet to the curb of Wadsworth, during which 13 feet it sturck Mrs. Nash who had been standing on the sidewalk and facing away from defendant's oncoming truck; and that defendant's truck then continued across the 27-foot pavement of Wadsworth, over its north curb, and was stopped by another light pole located on the tree lawn at the northeast corner of the intersection of Turney Road with Wadsworth and 57 1/2 feet from where the mailbox had been anchored before it was struck.

There is apparently no dispute about the fact that defendant's regular service brakes failed to take hold because the hydraulic system which actuated them, through no fault of defendant and without any previous warning to him, broke down suddenly. Defendant testified that he went over the curb instead of staying on the pavement in front of the parked car in order to avoid hitting a pedestrian who was in the street near the curb and ahead of that parked car.

There is also no dispute about the fact that the emergency-brake system on defendant's truck could not be used because of rusting in the cables.

The Common Pleas Court found defendant guilty.

On appeal to the Court of Appeals, the judgment of the Common Pleas Court was affirmed.

The cause is now before this court on appeal from that judgment, pursuant to allowance of defendant's motion for leave to...