Opinion
No. 36411
Decided December 14, 1960.
Criminal law — Second degree manslaughter — Violation of traffic regulation — Brake equipment — Section 4513.20, Revised Code, a "regulation of traffic" — Defective emergency brakes — Proximate cause.
1. Section 4513.20, Revised Code, is a "law * * * applying to the * * * regulation of traffic" within the meaning of those words as used in Section 4511.18, Revised Code.
2. Where the evidence will support a reasonable conclusion that, if a motor vehicle which struck and killed a pedestrian had had the emergency brakes required by Section 4513.20, Revised Code, the operator of such vehicle could and would have stopped it before it struck that pedestrian, the trier of the facts may find that the violation of Section 4513.20, Revised Code, was a proximate cause of the death of such pedestrian.
APPEAL from the Court of Appeals for Cuyahoga County.
Defendant was indicted for manslaughter in the second degree. That crime is defined in Section 4511.18, Revised Code, which reads so far as pertinent:
"No person shall unlawfully and unintentionally kill another while violating any law of this state applying to the use or regulation of traffic."
The indictment charges that defendant on September 12, 1958 "unlawfully and unintentionally killed Beverly * * * Nash while engaged in the violation of a state law applying to the use and regulations of traffic on, over or across the roads or highways" and then specifies several Code sections.
Defendant plead not guilty, a jury was waived, and the cause was tried to the court.
During the course of the trial and upon motions of defendant, all the sections of the Revised Code specified in the indictment, except Sections 4511.20 and 4513.20, were stricken from the indictment.
So far as pertinent, Section 4511.20, Revised Code, reads:
"No person shall operate a vehicle * * * without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, trackless trolleys, and streetcars, so as to endanger the life, limb, or property of any person while in the lawful use of the streets or highways."
So far as pertinent, Section 4513.20, Revised Code, reads:
"The following requirements govern as to brake equipment on vehicles:
"(A) Every * * * motor vehicle * * * when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such * * * motor vehicle, including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels * * *."
The evidence discloses that on the day in question defendant was driving his 1948 Chevrolet truck north on Turney Road in Garfield Heights at a place which was paved to a width of 36 feet; that, as he neared the intersection of that street with Wadsworth Avenue which runs to the east from Turney Road and when defendant was following about two car lengths behind another vehicle, the two cars ahead of defendant stopped suddenly to permit a southbound vehicle to turn in front of them into Wadsworth; that, when defendant then applied his regular service brakes, they failed to take hold; that, at that time, there was a car parked next to the curb on defendant's right, and defendant drove to his right in front of that car and over the curb at the edge of the pavement and just to the right of a light pole located on the tree lawn next to the curb; that defendant's truck then proceeded on the 10 1/2-foot wide tree lawn, which was between the curb and the sidewalk, and on the sidewalk, for a distance of over 41 feet where it hit a large mailbox and knocked it off its four posts to a place 10 feet from where it had been anchored on the tree lawn adjacent to the sidewalk; that defendant's truck continued about 13 more feet to the curb of Wadsworth, during which 13 feet it struck Mrs. Nash who had been standing on the sidewalk and facing away from defendant's oncoming coming truck; and that defendant's truck then continued across the 27-foot pavement of Wadsworth, over its north curb, and was stopped by another light pole located on the tree lawn at the northeast corner of the intersection of Turney Road with Wadsworth worth and 57 1/2 feet from where the mailbox had been anchored before it was struck.
There is apparently no dispute about the fact that defendant's regular service brakes failed to take hold because the hydraulic system which actuated them, through no fault of defendant and without any previous warning to him, broke down suddenly. Defendant testified that he went over the curb instead of staying on the pavement in front of the parked car in order to avoid hitting a pedestrian who was in the street near the curb and ahead of that parked car.
There is also no dispute about the fact that the emergency-brake system on defendant's truck could not be used because of rusting in the cables.
The Common Pleas Court found defendant guilty.
On appeal to the Court of Appeals, the judgment of the Common Pleas Court was affirmed.
The cause is now before this court on appeal from that judgment, pursuant to allowance of defendant's motion for leave to appeal.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Bernard J. Stuplinski, for appellee.
Mr. Richard C. Green and Mr. Jack Smith, for appellant.
The bill of exceptions discloses that, at the conclusion of all the evidence, the trial judge, who was the trier of the facts, made statements which clearly indicate his findings that, apart from defendant's violation of Section 4513.20, Revised Code, requiring effective emergency brakes, defendant was not guilty of a violation of either Section 4511.20, Revised Code (operating without due regard, etc.), or Section 4511.18, Revised Code (second degree manslaughter). In view of these findings, it is apparent that the trial court's conviction of defendant must necessarily rest upon its conclusion (1) that defendant's violation of Section 4513.20, Revised Code, was a proximate cause of the death of Mrs. Nash (see Jackson v. State, 101 Ohio St. 152, 127 N.E. 870) and (2) either (a) that a violation of Section 4513.20, Revised Code, is the violation of a "law * * * applying to the * * * regulation of traffic" within the meaning of Section 4511.18, Revised Code, or (b) that one who knowingly drives a car in violation of Section 4513.20, Revised Code, is guilty of violating Section 4511.20, Revised Code.
In contending that Section 4513.20, Revised Code, is not a "law * * * applying to the * * * regulation of traffic" within the meaning of those words as used in Section 4511.18, Revised Code, defendant points out that the former statute is in a different chapter of the Revised Code from that which contains the latter and that the two chapters have different headings.
However, Sections 4511.18 and 4513.20, Revised Code, were derived from Sections 6307-18 and 6307-92 in the same chapter of the General Code and were even originally enacted at the same time and as a part of the same so-called "Uniform Traffic Act." See Section 6307-1, General Code, and 119 Ohio Laws, 766.
In adopting the Revised Code, the General Assembly specifically stated in Section 1.24 that it did "not" intend "to change the law as heretofore expressed by the section or sections of the General Code." Certainly, there was no doubt, prior to the enactment of the Revised Code, that Section 6307-92, General Code, was, within the meaning of Section 6307-18, General Code, a "law * * * applying to the * * * regulation of traffic." In our opinion, Section 4513.20 is a "law * * * applying to the * * * regulation of traffic" within the meaning of those words as used in Section 4511.18, Revised Code.
On the evidence in this record the trier of the facts could have found that, if defendant's truck had had the emergency brakes required by Section 4513.20, Revised Code, defendant could and would have stopped it before it struck Mrs. Nash. Certainly, a motor vehicle driver can foresee, as did the General Assembly in enacting Section 4513.20, Revised Code, that a pedestrian on the sidewalk may be injured if his motor vehicle has no emergency brakes when its service brakes fail. In our opinion, therefore, the question whether there was a proximate causal relationship between defendant's violation of Section 4513.20, Revised Code, and the death of Mrs. Nash was a question of fact for the trier of the facts.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS and HERBERT, JJ., concur.
BELL and O'NEILL, JJ., not participating.