Summary
In Keah, this court discussed whether a speed greater than that specified in a municipal ordinance established unlawful conduct per se or a prima facie case.
Summary of this case from Bellville v. KieffaberOpinion
No. 32781
Decided April 2, 1952.
Criminal law — Municipal ordinance — Traffic regulations — Making prima facie unlawful to exceed certain speed — Speed in excess thereof not per se unlawful — Ordinance prescribes rule of evidence — "Prima facie case" defined — Vehicle making left turn to yield right of way — Ordinance violated — Turning in front of vehicle approaching at prima facie unlawful speed.
1. Where a municipal ordinance makes it prima facie unlawful for a motor vehicle to exceed a certain speed limit in a described locality, a speed greater than that specified does not establish the commission of an offense or constitute unlawful conduct per se, but establishes only a prima facie case under the ordinance. Such a provision as to speed is merely a rule of evidence raising a rebuttable presumption which may be overcome by evidence showing that in the circumstances the speed was neither excessive nor unreasonable.
2. A prima facie case is one in which the evidence is sufficient to support but not to compel a certain conclusion and does no more than furnish evidence to be considered and weighed but not necessarily to be accepted by the trier of the facts.
3. A conviction for the violation of an ordinance, providing that a vehicle within a street intersection intending to turn to the left shall yield the right of way to the driver of a vehicle approaching from the opposite direction, will not be disturbed on appeal, where the evidence plainly shows that the defendant in an intersection turned his vehicle to the left directly into or in front of another vehicle proceeding straight through the intersection on a green traffic light, and that, although such latter vehicle may have been traveling at a speed prima facie unlawful, such speed in no way contributed to the collision between the two vehicles.
APPEAL from the Court of Appeals for Cuyahoga county.
Defendant, the driver of a large tractor-trailer combination, was found guilty and convicted in the Municipal Court of Cleveland of violating Section 2410-2, Municipal Code of Cleveland, relating to the making of a left turn. A motion for reconsideration of the finding of guilty was thereafter filed. This was treated by the trial court as a motion for a new trial and a new trial was granted. Defendant, being dissatisfied with such action, took an appeal on questions of law to the Court of Appeals, which court finally disposed of the matter by judgment entry reading as follows:
"This cause came on to be heard on appeal on questions of law from the order of the Municipal Court of Cleveland refusing to grant the motion of defendant-appellant for his discharge and directing a new trial, upon consideration whereof, the court found that there was no error in the proceedings of the Municipal Court prejudicial to the rights of defendant-appellant and affirmed the judgment of the Municipal Court, but upon motion of defendant-appellant to clarify [certify] the case to the Supreme Court for a review, the court finds that the Municipal Court did not have the right to treat appellant's motion for reconsideration of the finding of guilty as a motion for a new trial, the appellant not having asked for a new trial. The entry of the trial court in granting a new trial is therefore vacated and the cause is remanded to the trial court for the imposition of sentence. To this extent, the former affirmance is modified and the appellant's motion to certify is overruled * * *. It is ordered that a special mandate issue out of this court directing the Municipal Court of Cleveland to carry this judgment into execution."
This court allowed defendant's motion to require the Court of Appeals to certify its record and the cause is presently here for decision on its merits.
Mr. Joseph H. Crowley, director of law, Mr. Joseph Stearns, police prosecutor, and Mr. Vatro J. Grill, for appellee.
Messrs. Thomas Handy, for appellant.
Defendant, the appellant in this court, claims that the Court of Appeals erred to his prejudice in not discharging him and in remanding the cause to the Municipal Court for the imposition of sentence.
As disclosed by the briefs of counsel, Section 2410-2, Municipal Code of Cleveland, which finds its counterpart in Section 6307-41, General Code, reads:
"The operator of a vehicle, streetcar or trackless trolley within an intersection intending to turn to the left shall yield the right of way to the driver of any vehicle, streetcar or trackless trolley approaching from the opposite direction."
And as disclosed by the briefs, Section 2401, Municipal Code of Cleveland, analogous to Section 6307-2, General Code, defines "right of way" as follows:
"The right of a vehicle, streetcar, trackless trolley or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or he is moving in preference to another vehicle, streetcar, trackless trolley or pedestrian approaching from a different direction into its or his path."
The bill of exceptions is comparatively short and consists of the testimony of four witnesses, all called by the city, and two exhibits. Three of these witnesses were the driver of an automobile and his two passengers who saw the collision between the tractor-trailer combination and another automobile coming in the opposite direction, and the fourth was a police officer of the city of Cleveland who arrived on the scene shortly after the collision and took two photographs of the collided vehicles in the position in which they had stopped. The defendant did not take the stand and called no witnesses.
The uncontradicted evidence is to the effect that shortly after 6 a.m. on August 30, 1950, the defendant drove the large tractor-trailer combination out of a filling station at a corner of Payne avenue and East 21st street in the city of Cleveland, turned it west on Payne avenue and continued to drive it west in the right or north traffic lane next to the center line of the street at a speed of 20 miles an hour until it arrived at a point where Payne avenue is intersected by East 18th street. The electric traffic light there located was then "green" for eastbound and westbound traffic over Payne avenue. Defendant proceeded into the intersection and turned abruptly to the left. A collision with a passenger automobile traveling east on its proper side of Payne avenue immediately ensued.
Defendant contends that he should not have been found guilty under the ordinance invoked by the city because the automobile involved in the collision was proceeding in an "unlawful manner" and consequently had no "right of way."
In making this point, defendant relies on the testimony of one of the city's witnesses who, on cross-examination, stated:
"Q. That car [the one implicated in the collision] was coming toward you at least 30 miles an hour, wasn't it? A. That is how I figured, anyhow.
"Q. You figured about 30 miles an hour, the speed of that approaching car; is that correct? A. Yes, sir.
"Q. Could it have been going faster? A. Maybe. I don't know. I just figured that, that is all.
"Q. It was coming at least 30 miles an hour, wasn't it? A. Yes."
Defendant recites in his brief and also stated the same thing in oral argument before this court that "the accident occurred in a zone where the speed limit was 25 miles an hour under the ordinances of the city of Cleveland."
Doubtless, the Municipal Court took judicial notice of all the ordinances of the city of Cleveland which had any direct bearing on the cause before it. None of these ordinances is incorporated in the bill of exceptions or is to be found in the record, but the rule of law adopted by this court is "that an appellate court, in reviewing a judgment of a Municipal Court on questions of law, may take judicial notice of an ordinance of which the Municipal Court did and was entitled to take notice." Orose v. Hodge Drive-It-Yourself Co., Inc., 132 Ohio St. 607, 612, 9 N.E.2d 671, 673, 111 A.L.R., 954. See, also, Village of Strongsville, v. McPhee, 142 Ohio St. 534, 539, 53 N.E.2d 522, 524, holding that "it was the duty of the mayor to take judicial notice of the ordinance and where such duty rests upon the trial court the appellate courts will likewise take such judicial notice."
Testimony given in the instant case was to the effect that, when defendant began to make the left turn from Payne avenue into East 18th street, the automobile involved in the collision, approaching from the west over Payne avenue, was no more than 20 or 30 feet distant. One witness testified that "it was almost in front of" the defendant. The police officer deposed that the defendant told him after the collision that he did not see the approaching automobile "until it was right on top of me." It would, therefore, seem apparent that the 30-mile-per-hour speed of the automobile as testified to was not a factor in the collision but that the collision was due entirely to the sudden left turn of the tractor-trailer without regard for the existing traffic conditions on Payne avenue.
Section 2407, Municipal Code of Cleveland, relating to the speed of "a motor vehicle, trackless trolley or streetcar," is similar in context to Section 6307-21, General Code, and provides that "it shall be prima facie unlawful for any person to exceed any of the foregoing or any other lawfully established speed limitations." In the present instance the speed limitation involved is "twenty-five miles per hour."
Under such phraseology in a statute or ordinance a speed greater than that specified does not establish the commission of an offense or constitute unlawful conduct per se, but establishes only a prima facie case under the particular statute or ordinance. Such a provision is merely a rule of evidence raising a rebuttable presumption which may be overcome by evidence that in the circumstances the speed was neither excessive nor unreasonable. 61 Corpus Juris Secundum, 747, 751, Motor Vehicles, Sections 641, 647.
A prima facie case may be defined as one in which the evidence introduced is sufficient to support but not to compel a certain conclusion and does no more than furnish evidence to be considered and weighed but not necessarily accepted by the trier of the facts. Vance v. Guy, 224 N.C. 607, 31 S.E.2d 766; McCoy v. Courtney, 25 Wn.2d 956, 172 P.2d 596, 170 A.L.R., 603.
The Municipal Court found the defendant guilty of violating Section 2410-2, Municipal Code of Cleveland, by turning his vehicle to the left directly into or in front of the oncoming automobile, thereby causing the collision, and apparently concluded, on the basis of the facts developed, that the driver of the automobile was not at fault and was not proceeding in such manner as to forfeit his right of way.
This court does not weigh evidence. From an examination of the bill of exceptions and for the reasons above expressed, we are of the opinion that the finding of guilty was justified, and that no sufficient reason exists for reversing the judgment of the Court of Appeals. Such judgment is, therefore, affirmed.
Judgment affirmed.
WEYGANDT, C.J., MIDDLETON, TAFT, MATTHIAS and HART, JJ., concur.