Opinion
No. 36867
Decided January 3, 1962.
Motor vehicles — Traffic regulations — Statutory construction — Right-of-way on highway — Vehicle entering highway to yield right-of-way.
1. Sections 4511.44 and 4511.01, Revised Code, are cognate sections pertaining to the right-of-way at places on a highway where a private drive or road enters the highway
2. Section 4511.44, Revised Code, requires the operator of a vehicle to stop and yield the right-of-way. Section 4511.01, Revised Code, defines "right-of-way" as the right "to proceed uninterruptedly in a lawful manner in the direction in which it * * * is moving," in preference to a vehicle entering the highway from a private driveway or roadway. These sections confer an absolute right-of-way upon the vehicle on the highway, qualified only by the requirement that, in proceeding uninterruptedly, it must proceed in a lawful manner.
APPEAL from the Court of Appeals for Clinton County.
The plaintiff instituted suit in the Court of Common Pleas of Clinton County for damages arising from an automobile accident which occurred on December 5, 1956.
The plaintiff was proceeding easterly on State Route 730 in Clinton County, just outside the city of Wilmington, at approximately 7:30 a.m. on a clear day. The defendant, emerging from his private drive on to the highway, is alleged to have failed to yield the right-of-way to the plaintiff, whereupon the plaintiff drove his car off the highway to the left and overturned. No contact occurred between the vehicles.
Trial was had to a jury.
Plaintiff's evidence is to the effect that defendant drove his automobile from a private driveway on to State Route 730 without stopping or warning, and that it was necessary for plaintiff to swerve to the left from the roadway in order to avoid a collision. Plaintiff stated that immediately prior to the accident he was driving approximately 45 miles an hour. His statements were, in general, corroborated by the witness, Albert Scott, who was a passenger in plaintiff's car.
Upon cross-examination, the plaintiff stated that the point at which he had first seen the defendant's automobile coming on to State Route 730 was at the crest of a hill at a point some 300 feet west of the driveway from which the defendant's automobile emerged.
Defendant's evidence is that, at the time and place in question, the defendant had driven to the margin of State Route 730, stopped, looked in both directions, and, seeing no traffic approaching, proceeded to make a left turn onto the highway and was at a point some 200 feet east of the driveway in the south or eastbound lane of the highway when he first heard the crash of the plaintiff's automobile. Plaintiff requested the following special instruction before argument:
"If you find that defendant, Eugene Wills, in operating his automobile from a private road or driveway did enter the highway upon which the plaintiff, William Beers, was driving his automobile, and that said defendant did fail to yield the right-of-way to the automobile in which plaintiff was approaching on said highway, you are hereby instructed that the said defendant, Eugene Wills, was guilty of negligence as a matter of law."
The instruction was refused for the stated reason that it failed to include the qualification that plaintiff was proceeding in a lawful manner.
A unanimous jury verdict was returned for the defendant, and judgment was rendered thereon.
A motion for a new trial was made and overruled.
An appeal was perfected by the plaintiff to the Court of Appeals, which reversed the judgment and remanded the cause for a new trial on the ground that the trial court erred in refusing to give the requested instruction.
The cause is before this court upon the allowance of defendant's motion to certify the record.
Mr. Kenneth O. Stone, for appellee.
Mr. Frederick J. Buckley, for appellant.
The question before this court is whether a vehicle traveling upon a highway has an absolute right-of-way over a vehicle entering from a private driveway or road, or whether the vehicle traveling on the highway forfeits its preferential right-of-way if it fails to proceed in a lawful manner.
Section 4511.44, Revised Code, provides:
"The operator of a vehicle * * * about to enter or cross a highway from a private road, driveway * * * shall stop and yield the right-of-way to all traffic approaching on said highway."
Section 4511.01, Revised Code, defines "right-of-way" as follows:
"`Right-of-way' means the right of a vehicle * * * to proceed uninterruptedly in a lawful manner in the direction in which it * * * is moving in preference to another vehicle * * * approaching from a different direction into its * * * path."
As pointed out by Judge Jones in Morris v. Bloomgren, 127 Ohio St. 147, 187 N.E. 2, 89 A.L.R., 831, when he was discussing comparable sections of the General Code analogous to those of the Revised Code quoted above, these are cognate sections pertaining to the right-of-way at places on the highway where a private drive or road enters the highway.
Section 4511.44, Revised Code, requires the operator of a vehicle to stop and yield the right-of-way, and Section 4511.01, Revised Code, defines "right-of-way" as the right "to proceed uninterruptedly in a lawful manner in the direction in which it * * * is moving," in preference to a vehicle entering the highway from a private driveway or roadway. These sections confer an absolute right-of-way upon the vehicle on the highway, qualified only by the requirement that, in proceeding uninterruptedly, it must proceed in a lawful manner.
The law gives to the operator of the vehicle upon the highway a shield, an absolute right to proceed uninterruptedly. He forfeits the shield if he fails to proceed in a lawful manner.
The wisdom of the law in this respect is evident.
The trial court was right in its refusal to give the above-quoted charge to the jury, on the ground that it failed to include the qualification that the plaintiff was proceeding in a lawful manner. The Court of Appeals erred in reversing the judgment of the trial court.
The law on this point seems to have been clearly established by the pronouncements of this court beginning with Times Square Garage Co. v. Spencer, 121 Ohio St. 77, 166 N.E. 901. It is clearly set forth in Morris v. Bloomgren, supra, and was reaffirmed in Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440.
The judgment of the Court of Appeals should be, and hereby is, reversed, and the judgment of the Common Pleas Court is affirmed.
Judgment reversed.
ZIMMERMAN, acting C.J., DOYLE, TAFT, MATTHIAS and HERBERT, JJ., concur.
ZIMMERMAN, J., sitting in the place and stead of WEYGANDT, C.J.
DOYLE, J., of the Ninth Appellate District, sitting by designation in the place and stead of ZIMMERMAN, J.