
    The State of Ohio, Appellee, v. Howey, Appellant.
    (No. 3877
    Decided February 8, 1946.)
    
      Mr. Ralph J. Bartlett, prosecuting attorney, Mr. 
      
      William G. Bryant and Mr. Daniel S. Webber, for appellee.
    
      Mr. Russ Bothwell, for appellant.
   Miller, J.

This is an appeal on questions of law from a judgment of the" Court of Common Pleas of Franklin county, Ohio, wherein the defendant was found guilty of manslaughter in the second degree.

The record discloses that on June 10, 1945, Irene A. Duffy, the deceased, and her husband were .walking south on the west side of Eighteenth street in the city of Columbus, Ohio; that when they arrived at an intersection of Eighteenth street, which intersection is controlled by a traffic light, the light was red. After a few moments the light turned green for the north and south traffic on Eighteenth street and the deceased and her husband, started across Mound street on the crosswalk. When they had arrived at a point several feet south of the center line of Mound street, they were struck by the automobile of the defendant which resulted in the death of Irene A. Duffy on the following day.

The defendant was driving his automobile in an easterly direction on Mound street at a speed of approximately 20 to 25 miles per hour-and when he was approximately a half a square from the light, seeing that it was red, he slowed down his speed to five or ten miles per hour. When he was 50 to 60 feet west of the light it turned green for the east and west traffic and the defendant proceeded on into the intersection, striking the deceased and her husband. The defendant testified that he did not see these parties prior to the impact. The accident happened about 9:30 p. m. and a misty rain was falling.

The record discloses further that there was a street light at the northwest corner of this intersection.

The trial court found that the deceased and her husband entered the intersection on the green light. The testimony of the defendant tends to corroborate this finding, as he testified that the light turned to green for the east and west traffic when he was some 50 or 60 feet west of the intersection.

The indictment, in addition to charging violation of Section 6307-18, General Code, defining second degree manslaughter, also charged violation of Sections 6307-12, 6307-20 and 6307-45, General Code. The plea was one of not guilty. A jury was waived and trial had before a judge of the Common Pleas Court. The court found the defendant guilty as charged, and a motion for new trial was overruled.

The assignments of error are in substance that the finding of the trial court was contrary to law and contrary to the evidence.

The definition of manslaughter in the second degree is found in Section 6307-18, General Code, which is as follows:

“Whoever shall unlawfully and unintentionally kill another while engaged in the violation of any law of this state applying to the use or regulation of traffic, shall be guilty of manslaughter in the second degree.”

We are, therefore, confronted with the question of whether the defendant was violating any law of this state applying to the use or regulation of traffic at the time of the fatal injury. The indictment charges that the defendant violated three separate and distinct sections of the state traffic laws, to wit, Sections 6307-45, 6307-20 and 6307-12, General Code. Section 6307-45, General Code, provides in part:

“It shall be the duty of the operator of any vehicle, street car or trackless trolley to yield the right-of-way to a pedestrian lawfully crossing the roadway within any crosswalk.”

Under that section we find that, since the deceased entered the intersection on the green light and was walking within the crosswalk, she had the right of way. The “right of way” is defined by Section 6307-2, General Code, as “the right of a vehicle, street car, 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, street car, trackless trolley or pedestrian approaching from a different direction into its or his path. ’ ’

This right of way was not yielded to the deceased, and we, therefore, find that the trial court properly found the defendant violated that section of the Code.

The indictment charges also that the defendant violated Section 6307-20, General Code, which provides: “No person shall operate a vehicle * * * without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles * * * and so as to endanger the life, limb or property of any person while in the lawful use of the streets or highways.” We find that the defendant also violated that section as he operated his automobile without regard to the rights of the deceased who had the right to proceed uninterruptedly across the street.

The defendant is charged in the indictment also with violating Section 6307-12, General Code, but we do not believe that the record shows a violation of that section by the defendant.

Counsel for the defendant cites the case of Martinovich v. Jones Co., 135 Ohio St., 137, 19 N. E. (2d), 952, which was decided on March 15, 1939, more than two years prior to the enactment of the Uniform Traffic Act. The first paragraph of the syllabus of that case reads as follows:

“In the absence of statute or ordinance so prescribing, there is not an absolute duty devolving upon the driver of a motor vehicle standing at or approaching a street intersection, upon receiving the green or ‘go’ signal of a traffic light, to wait until one on the crosswalk is entirely out of the intersection before such driver may move into it. A charge to the jury imposing such absolute duty would be erroneous.” (Emphasis ours.)

We think that case has no application, for we have made reference to Sections 6307-45 and 6307-20, General Code, which are statutes prescribing the conduct to be pursued by one who has received the green or “go” signal of a traffic light.

We find that the casé of Juergens v. Bell Dist., Inc., 135 Ohio St., 335, 21 N. E. (2d), 90, is more applicable to the case at bar. The second paragraph of the syllabus of that case is:

“Where an ordinance gives a pedestrian, crossing or starting across a crosswalk at such an intersection on a green or go signal, the right of way over vehicles until such pedestrian has reached the opposite curb, the question of contributory negligence of such pedestrian includes consideration not only of the conduct of such pedestrian in crossing such crosswalk but also of the extent of the right of way granted by the ordinance, and where such ordinance further provides that it shall be unlawful for the operator of any vehicle to fail to yield the right of way to any such pedestrian, the latter, while not absolved from the requirement of exercising ordinary care for his own safety, does have the right, in the absence of notice or knowledge to the contrary, to expect that the operator of such motor vehicle will obey the law.” (Emphasis ours.)

In the instant case the deceased had a right to expect that the defendant would obey the law, which he failed to do.

The cases cited hold that the pedestrian may be guilty of contributory negligence which bars a recovery, even though the driver of a motor vehicle violated a law which directly contributed to the injury, but we are not confronted with the question of contributory negligence in this case. . We are only interested in whether the defendant was violating a law relating to the use of streets or regulation of traffic at the time of the injury, and we have found the answer to be in the affirmative.

The judgment is affirmed and the cause is remanded.

Judgment affirmed.

Hornbeck, P. J., and Wiseman, J., concur.  