Zehe v. Falkner, 70-204

Decision Date23 June 1971
Docket NumberNo. 70-204,70-204
Citation271 N.E.2d 276,55 O.O.2d 489,26 Ohio St.2d 258
Parties, 55 O.O.2d 489 ZEHE, Appellant, v. FALKNER, Appellee.
CourtOhio Supreme Court

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 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 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 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.

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 (1) whether a motorist who crosses the center line attempting to pass another vehicle and thereby collides with an oncoming vehicle is negligent per se under the provisions of R.C. § 4511.25 and R.C. § 4511.29 and (2) whether the trial court committed prejudicial error when it charged the jury as to the defense of sudden emergency.

As to the first question, R.C. § 4511.25 establishes a motorist's right to pass another vehicle. This section provides that:

'Upon all roadways of sufficient width, a vehicle or trackless trolley shall be driven upon the right half of the roadway, except as follows:

'(A) When overtaking and passing another vehicle proceeding in the same direction * * *.'

This statute must be read in conjunction with R.C. § 4511.29 (left of center) which establishes the duties of a motorist when he is overtaking and passing a fellow motorist. R.C. § 4511.29 provides:

'No vehicle * * * shall be driven to the left of the center or center line of the roadway in overtaking and passing traffic proceeding in the same direction, unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made, without interfering with the safe operation of any traffic approaching from the opposite direction * * *.' (Emphasis supplied.)

Those statutes specifically define the obligation of a passing motorist. In Ohio, it is a well settled principle of law that violation of a specific safety statute, absent a showing of some legal excuse for failure to comply with the conduct required by the statute, constitutes negligence per se. Spalding v. Waxler (1965), 2 Ohio St.2d 1, 205 N.E.2d 890; Oechsle v. Hart (1967), 12 Ohio St.2d 29, 231 N.E.2d 306.

In Spalding, the defendant's brakes failed and a collision occurred with the car ahead. Defendant was held to have violated the provisions of both R.C. § 4511.21 (assured clear distance ahead) and R.C. § 4511.25 (left of center), and absent a legal excuse defendant was found to have been negligent per se.

Similarly, in Oechsle, defendant's car skidded on an icy or wet spot on the pavement and went left of center, striking another vehicle. This court held that R.C. § 4511.25 was a specific safety statute, and its violation, absent a legal excuse, constituted negligence per se.

Defendant argues that the lawfulness of his movement left of center must be determined solely from the facts as they existed at the instant he crossed the center line. He contends that since he did not collide with an oncoming vehicle until some time later, he did comply with the requirements of R.C. § 4511.25(A...

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