136 N.E.2d 150 | Ohio Ct. App. | 1955
These appeals on questions of law are from judgments of the Municipal Court of Toledo convicting defendant in case No. 4860 of driving a motor vehicle without a license, and in case No. 4861 of "operating without due regard," etc. *128
The record discloses that the defendant, who did not have a driver's license, at the request of one Willie Barnes, agreed to and did steer Barnes' 1947 Buick automobile as it was towed down the street by Barnes. The Buick was connected by a log chain to a Mercury automobile operated by Barnes. During the towing operation, the chain slackened and became entangled under the right front wheel of the Buick. When the Mercury moved forward, the slack was taken up and the chain under the wheel of the Buick caused it to swerve to its right and collide with a car parked on the street, which car was propelled into two other cars. The Buick and the Mercury were moving at a speed of 20 to 25 miles per hour prior to the accident.
Section 21-9-1 of the Toledo Municipal Code provides:
"(a) No person shall operate a motor vehicle upon the streets or highways of the city of Toledo unless such person shall have either a driver's license, a chauffeur's license, or a temporary instruction permit, all as required by the statutes of the state of Ohio; unless such person shall be relieved from having such license or permit by the statutes of the state of Ohio."
Paragraph (b) of Section 21-1-2 of the Toledo Municipal Code provides:
"Motor vehicles. Every vehicle propelled or drawn by power other than muscular power or power collected from overhead electric trolley wires, except road rollers, traction engines, power shovels, power cranes and other equipment used in construction work and not designed for or employed in general highway transportation, hole digging machinery, well drilling machinery, ditch digging machinery, farm machinery, threshing machinery, hay baling machinery, and agricultural tractors and machinery used in the production of horticultural, floricultural, agricultural and vegetable products."
Paragraph (b) of Section 21-1-10 provides:
"Driver or operator. Every person who drives or is in actual physical control of a vehicle, trackless trolley or street car."
There is no substantial variance between the quoted paragraphs of the Toledo code and the state traffic code. *129
Was the defendant driving or operating the Buick as it was towed down the street?
In 60 Corpus Juris Secundum, 473, Section 150, it is stated that a person steering a disabled motor vehicle which is being towed by another car is not operating or driving a motor vehicle within the meaning of a statute requiring such an operator or driver to be licensed, citing Dewhirst v. Connecticut Co.,
In Wolcott, Exrx., v. Renault Selling Branch, Inc. (1916),supra, it was held that a person steering an automobile, not under power and towed by another, is not operating or driving a motor vehicle, which would include the operation of machinery, etc., within the meaning of Highway Law (Consol. Laws, c. 25, Section 289, subdivision 4, as amended by Laws 1911, c. 491), providing that no person shall "operate or drive" a motor vehicle as chauffeur upon a public highway without a license.
This case was reversed on other grounds in
In Ricciardi v. McMahon,
In Dewhirst v. Connecticut Co., supra., the court, in determining whether the vehicle was being operated by an unlicensed driver, said:
"It is true that it is found that, after the plaintiffs' truck was disabled so that it had to be towed by the Edwards truck, he steered the plaintiffs' truck; but he did not cause that truck `to move or to perform the acts desired,' or `direct' its `working.' *130 Century Dictionary. At the time of the collision he had nothing to do with its movement or position. It was not operated by him, and so it is immaterial that he was unlicensed on the day of the accident."
In Beard v. Clark (Texas Civ. App.),
"The opinions of the courts cited, supra, happily express the controlling consideration in interpreting the meaning of the word `operate' when they say, in substance, that it is used throughout the statutes there under review as signifying a personal act in working the mechanism of the car; that is, the driver operates the car for the owner, but the owner does not operate the car unless he drives it himself."
In Brown, a Minor, v. Kennedy, a Minor, 38 Ohio Law Abs., 134, 49 N.E.2d 417 (affirmed in
Section 21-1-2 of the Toledo ordinance embraces "every *131 vehicle propelled or drawn by power other than muscular power." The towed car was not propelled or drawn by muscular power, so it was a "motor vehicle." But was the defendant in "actual physical control" of the automobile?
"Actual" means real, as opposed to something "nominal" or "constructive." Astor v. Merritt, Collector,
Although in some jurisdictions the rule of strict construction is not applied to ordinances prescribing misdemeanors, in Ohio, ordinances as well as penal statutes are strictly construed and may not be extended by implication to cases not falling within their terms. City of Cleveland v.Jorski,
In the instant case, the defendant was guiding, not driving, the automobile; and he was not in actual physical control of it within the purview of the ordinance. *132
Relative to appeal No. 4861, Section 21-6-1 of the Toledo Municipal Code provides that no person shall operate a motor vehicle upon the streets and highways at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface and width of the street or highway, and of any other conditions then existing.
Section 21-6-8 of the Toledo Municipal Code, dealing with reckless operation, provides that no person shall operate a vehicle without due regard for the safety and rights of pedestrians and drivers of and occupants of all other vehicles, or so as to endanger the life, limb or property of any person while in the lawful use of the streets or highways.
The affidavit indicates that the charge was brought under Section 21-6-8 of the Toledo Municipal Code. The only evidence adduced in support of this charge is that the car which defendant occupied as it was towed down the street collided with a car parked upon the street, which parked car in turn collided with two other cars, presumably parked in front of the first car. Proof of a collision between motor vehicles is insufficient in itself to establish the operation of a motor vehicle without due regard for the property of others using the highway. Cf. City ofToledo v. Lowenberg,
The judgment in each case is reversed, and final judgment entered discharging defendant.
Judgments reversed and final judgment for defendant.
CONN and DEEDS, JJ., concur. *133