Zehe v. Falkner, No. 70-204

• Court: United States State Supreme Court of Ohio
• Writing for the Court: LEACH; C. WILLIAM O'NEILL
• Citation: 271 N.E.2d 276,55 O.O.2d 489,26 Ohio St.2d 258
• Docket Number: No. 70-204
• Decision Date: 23 June 1971
• Parties: , 55 O.O.2d 489 ZEHE, Appellant, v. FALKNER, Appellee.

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26 Ohio St.2d 258 271 N.E.2d 276, 55 O.O.2d 489 ZEHE, Appellant,
v.
FALKNER, Appellee. No. 70-204. Supreme Court of Ohio. June 23, 1971.

[271 N.E.2d 277] Syllabus by the Court

1. R.C. §§ 4511.25 and 4511.29 impose a mandatory duty upon a motorist to drive solely upon the right half of a roadway except under specifically designated circumstances, and an unexcused failure to comply with that duty constitutes negligence per se. (Oechsle v. Hart, 12 Ohio St.2d 29, 231 N.E.2d 306, followed.)

2. The defense of sudden emergency envisions a situation in which a sudden and unexpected occurrence or condition

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demands prompt action without time for reflection or deliberation. (Miller v. McAllister, 169 Ohio St. 487, 160 N.E.2d 231, followed.)

3. A sudden emergency, which will relieve a motorist of a duty to comply with a vehicular safety statute, must arise as the result of something over which he has no control. A self-created emergency, one arising from the driver's own conduct or from circumstances under his control, cannot serve as an excuse. (Spalding v. Waxler, 2 Ohio St.2d 1, 205 N.E.2d 890, followed.)

4. Where a motorist, on a two-lane highway, encounters difficulty in passing the car ahead, and yet remains left of center and renews his attempt to pass, resulting in a collision with an oncoming vehicle, such motorist is not entitled to a jury charge as to the defense of sudden emergency. Such a situation can neither be said to be an unexpected occurrence nor a situation over which the motorist had no control.

5. Where the defense of sudden emergency is unwarranted, it is prejudicial error for the trial court to charge the jury thereon.

On June 15, 1963, the defendant-appellee, Joseph Falkner, was operating his automobile in a northerly direction on state Route No. 45 in Ashtabula County. Route 45 is a narrow, curvy, two-lane highway.

Evidence adduced on behalf of the defense indicated that defendant had been, for a period of time, following another vehicle which was proceeding slowly in front of him. When defendant came to a long 'S' curve, which had approximately 1,500 feet of straightaway in the middle, he pulled into the left-hand (southbound) lane and attempted to pass the car in front of him.

Although the road ahead was clear, defendant was unable

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to pass because the car ahead speeded up, frustrating his attempt. Wheh defendant decelerated, the other automobile also decelerated.

Defendant remained in the left-hand lane and again attempted to pass this other car. It was at this point that defendant observed a car, in which Mrs. Julia Zehe, plaintiff-appellant, was a passenger, at the far end on the 'S' curve, proceeding toward him in the southbound lane. The Zehe auto was about 600 feet ahead of defendant at this point, when defendant again attempted to pass.

The car, which defendant was attempting to pass, again speeded up. Again frustrated[271 N.E.2d 278] in his passing attempt, defendant slowed down (decelerated) in an attempt to return to the northbound lane. The car which defendant was attempting to pass also slowed down.

When the car, in which plaintiff was a passenger, was approximately several hundred feet away, defendant swerved to his left onto the berm of the southbound lane to avoid the impending collision. At almost the same instant, the car in which plaintiff was riding also turned onto the same berm from the southbound lane. The two automobiles collided on the berm of the southbound lane about 6 to 10 feet off the paved portion of the highway.

The driver of the third car left the scene of this accident and has subsequently never been identified or located.

Plaintiff brought suit in the Common Pleas Court of Trumbull County for injuries sustained in the collision. At the request of the defendant, the trial court charged the jury on sudden emergency, and in both a special charge and in its general charge instructed the jury that the duty of a motorist, confronted with a sudden emergency, was only to exercise that degree of care which would be exercised by a reasonably prudent person confronted with such an emergency.

The jury returned a verdict for defendant and plaintiff's motion for a new trial was overruled. The Court of Appeals affirmed.

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The cause is before this court pursuant to the allowance of a motion to certify the record.

Milton Dunn and Francis J. Ebenger, Cleveland, for appellant.

William R. Hewitt, Warren, for appellee.

LEACH, Justice.

The basic questions presented to this court are...