Opinion
No. 70-204
Decided June 23, 1971.
Motor vehicles — Traffic regulations — R.C. 4511.25 and 4511.29 — Duty to drive on right half of roadway — Mandatory — Unexcused failure negligence per se — Defense of sudden emergency — Self-created emergency no excuse — Defense unwarranted, when — Driver attempting to pass, remains left of center — Charge to jury — Error to charge on sudden emergency, when.
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, 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, 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, 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.
APPEAL from the Court of Appeals for Trumbull County.
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. When 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 of 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.
Mr. Milton Dunn and Mr. Francis J. Ebenger, for appellant.
Mr. William R. Hewitt, for appellee.
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; Oechsle v. Hart (1967), 12 Ohio St.2d 29.
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) and 4911.29. A similar argument was rejected by this court in Mann v. Lewis (1970), 22 Ohio St.2d 191. Although Mann involved application of R.C. 4511.30(C) (passing within 100 feet of an intersection), the language "be driven to the left of the center" is the same as in R.C. 4511.29.
On the basis of Spalding and Oechsle, it would clearly appear that defendant was negligent per se, unless he has established a legal excuse. Defendant asserts that he was excused by reason of a sudden emergency.
Plaintiff urges that the situation involved herein did not actually arise suddenly and even if it did, defendant either created or contributed to the situation.
Once a motorist has been shown to have violated a specific safety statute, in order to avoid the impact of liability for an ensuing collision, such motorist must show the existence of circumstances which legally excuse his conduct. A showing by such motorist that he was a victim of a sudden emergency will excuse his failure to comply with the statute in question. Spalding v. Waxler, supra ( 2 Ohio St.2d 1); Francis v. Bieber (1967), 10 Ohio St.2d 65, Oechsle v. Hart, supra ( 12 Ohio St.2d 29).
However, in order to be classified as a sudden emergency, the situation in question must constitute a sudden and unexpected occurrence or condition which demands prompt action without time for reflection or deliberation. Paragraph six of the syllabus, Miller v. McAllister (1959), 169 Ohio St. 487. Further, such an emergency must result from something over which the motorist had no control. A self-created emergency, one arising from a driver's own conduct or from circumstances under his control, will not serve as an excuse. Paragraph five of the syllabus of Spalding v. Waxler, supra ( 2 Ohio St.2d 1).
We conclude that the situation before us was not one of sudden emergency as envisioned in Miller, supra. Here, the danger to be anticipated arose neither suddenly nor unexpectedly. The record discloses that defendant was left of center for at least one minute attempting to pass. Further, he saw plaintiff's vehicle approaching some 600 feet ahead while he was trying to pass this third vehicle for the second time. Still defendant continued his attempt to pass, even though the car which he was attempting to pass has successfully frustrated a previous passing attempt. Was such a situation one which defendant could not foresee and over which he had no time to reflect or deliberate? We think that it was not. Defendant, on notice as to the conduct of the third driver, chose to try and complete the act of passing which he had initiated. Clearly, defendant had time to deliberate and thus the ensuing emergency was in no sense of the word sudden.
Even if we were to find that this emergency was sudden, it would still be incumbent upon defendant to show that the emergency was not self-created.
Where a specific safety statute is involved, a violation of which constitutes negligence per se, a motorist, in a sudden emergency, must show that it was impossible for him to comply with the statute. Paragraph two of the syllabus of Bush v. Harvey Transfer Co. (1946), 146 Ohio St. 657. What a reasonably prudent man would have done under the circumstances is immaterial, Spalding v. Waxler, supra ( 2 Ohio St.2d 1, 5).
Such impossibility of compliance has not been shown here. It was defendant who originally chose to pass. It was defendant who chose to pass a second time, even though he had notice that the third car might again frustrate his attempt. There is no evidence that he ever attempted to apply his brakes until sometime after the two cars were within several hundred feet of each other. His efforts to return to his own side of the road involved only deceleration.
Concluding that the trial court erred in charging on sudden emergency, the judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas for a new trial.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN and STERN, JJ., concur.