Opinion
No. 28113
Decided July 3, 1940.
Motor vehicles — Stopping on highway — Section 6310-27, General Code — Right wheels to be within foot of right side of improved road — Free passage of road not to be obstructed — Request to charge jury erroneous — Parking within foot of right side of road not negligence — Statute specific and for public benefit — Violating statute negligence per se.
1. Under the provisions of Section 6310-27, General Code, no vehicle shall stop on any road or highway, except with front and rear right wheels within one foot of the right hand side of the improved portion of the road, nor in any such way as to obstruct a free passage of the road; provided that nothing in this section shall be held to apply whenever a driver of a vehicle is compelled or permitted to stop by reason of other lawful regulations, or emergency.
2. Under the provisions of this section a request to charge a jury that "if you find that the driver of the defendant's tractor and trailer stopped the vehicle on the pavement with its right wheels within one foot of the right and south edge of the pavement, then I charge you that such stopping and parking is lawful, and defendant is therefore not chargeable with any negligence by reason of such parking" is erroneous and should be refused.
3. The provisions of this section are specific and were enacted for the benefit of the public.
4. A violation of these provisions constitutes negligence per se.
CERTIFIED by the Court of Appeals of Allen county.
The plaintiff instituted this action in the Court of Common Pleas for the recovery of damages for personal injuries suffered by her on March 6, 1938, when she was riding in an automobile driven by her husband. Ahead of them was the defendant's truck which had been traveling in the same direction. However, one tire on the truck had been punctured and another had exploded, and the driver had then parked the vehicle on the twenty-foot pavement with the left wheels within six inches of the middle line. There the truck remained approximately nine hours in charge of the driver's assistant while the driver himself went in search of new tires. As the plaintiff and her husband approached the parked truck they stopped their automobile in order to await the passing of several vehicles that were traveling in the opposite direction. After these cars had passed and the plaintiff's husband was preparing to drive to the left of the parked truck another automobile coming in the same direction collided with the rear of the car in which the plaintiff and her husband were riding, forcing it against the rear of the truck and injuring the plaintiff.
In the trial court the plaintiff obtained a verdict and judgment in the sum of $4,350.
Upon appeal on questions of law the Court of Appeals affirmed the judgment and certified the case to this court on the ground that this judgment is in conflict with that of the Court of Appeals of Summit county in the case of Hileman v. Portage Lakes Transportation Company.
Messrs. Conn, Stroup Spahr and Mr. Walter S. Jackson, for appellee.
Messrs. Cable Cable, for appellant.
The defendant's assignments of error are numerous. However, a study of the record and the opinion of the Court of Appeals discloses a complete answer to each complaint.
The only question requiring comment by this court is that relating to Section 6310-27, General Code, which reads as follows:
"No vehicle shall stop on any road or highway, except with front and rear right wheels within one foot of the right hand side of the improved portion of the road, nor in any such way as to obstruct a free passage of the road; provided that nothing in this section shall be held to apply whenever a driver of a vehicle is compelled or permitted to stop by reason of other lawful regulations, or emergency."
Basing its request upon this section, the defendant asked the trial court to give the following special charge before argument:
"Members of the jury: I charge you that the General Code of Ohio, Section 6310-27, is as follows: 'No vehicle shall stop on any road or highway, except with front and rear right wheels within one foot of the right hand side of the improved portion of the road, nor in any such way as to obstruct a free passage of the road; provided that nothing in this section shall be held to apply whenever a driver of a vehicle is compelled or permitted to stop by reason of other lawful regulations, or emergency,' and if you find that the driver of the defendant's tractor and trailer stopped the vehicle on the pavement with its right wheels within one foot of the right and south edge of the pavement, then I charge you that such stopping and parking is lawful, and defendant is therefore not chargeable with any negligence by reason of such parking."
The request was refused. The Court of Appeals approved this action but found that its decision was in conflict with that of the Court of Appeals of Summit county and therefore certified the case to this court for review.
An analysis of the statute discloses three parts. The first provides that "no vehicle shall stop on any road or highway, except with front and rear right wheels within one foot of the right hand side of the improved portion of the road." Secondly, the statute prohibits a vehicle from stopping on any road or highway "in any such way as to obstruct a free passage of the road." Third is the proviso "that nothing in this section shall be held to apply whenever a driver of a vehicle is compelled or permitted to stop by reason of other lawful regulations, or emergency." Thus it immediately becomes apparent that the trial court would have committed substantial error had it complied with the defendant's request by saying to the jury "and if you find that the driver of the defendant's tractor and trailer stopped the vehicle on the pavement with its right wheels within one foot of the right and south edge of the pavement, then I charge you that such stopping and parking is lawful, and defendant is therefore not chargeable with any negligence by reason of such parking." This recognizes the first part of the statute but ignores the second and third which are patently in pari materia. In unmistakable language the second provision prohibits stopping in any such way as to obstruct a free passage of the road, and the only exceptions are in case of an emergency or whenever a driver of a vehicle is compelled or permitted to stop by reason of other lawful regulations. On the highway here involved traffic was proceeding in both directions. Unless an emergency existed there for nine hours or unless the driver was compelled or permitted to stop by reason of other lawful regulations, this statute was violated.
The defendant complains also because the trial court charged the jury that a violation of the provisions of this statute constitutes negligence per se. In view of the fact that the requirements of the statute are specific and were enacted for the protection of the public, the trial court was correct. This principle of law has been enunciated repeatedly by this court. Schell v. DuBois, Admr., 94 Ohio St. 93, 113 N.E. 664, L.R.A. 1917A, 710; Skinner v. Penna. Rd. Co., 127 Ohio St. 69, 186 N.E. 722; Gumley, Admr., v. Cowman, 129 Ohio St. 36, 193 N.E. 697; Kormos v. Cleveland Retail Credit Men's Co., 131 Ohio St. 471, 3 N.E.2d 427.
Since the record discloses no substantial error, the judgments of the lower courts must be affirmed.
Judgment affirmed.
DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.