
    City of Cincinnati, Appellee, v. Somagyi, Appellant.
    (Decided March 11, 1940.)
    
      Mr. John D. Ellis and Mr. James F. Conway, Jr., for appellee.
    
      Mr. C. R. Beirne, for appellant.
   Boss, J.

The defendant was convicted in the Municipal Court of Cincinnati upon an affidavit charging that he being in control “of a certain motor vehicle to wit cross-town streetcar” did “then and there unlawfully fail to drive said vehicle in a careful manner and with due regard for the safety and rights of pedestrians, drivers, and occupants of other vehicles and so as to endanger the life, limb, and property of certain persons, to wit:............he the said............being then and there lawfully upon the street of said city.”

The defendant was found guilty and sentenced on November 22, 1939. The affidavit was filed November 25, 1939. Motion for a new trial was filed November 25, 1939, and overruled November 27, 1939. Notice of appeal was filed November 27,1939.

No comment being made by the defendant as to the irregularities noted, we pass on to the complaints, first, that the judgment of the Municipal Court is not sustained by the evidence, and, second, that the ordinances of the city of Cincinnati do not provide for the charge involved against the operator of a streetcar.

We consider these in the reverse order.

The ordinance under which the affidavit is drawn (Section 74-56) reads as follows:

“See. 74-56. It shall be unlawful to operate a motor vehicle without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles ; or so as to endanger the life, limb, or property of any persons while lawfully using the highways.” The predecessor of this ordinance (Section 74-53) of which Section 74-56 is an amendment read:

“Sec. 74-53. Careful Driving Defined. Vehicles and streetcars shall be driven in a careful manner by the driver or operator thereof with due consideration for the safety and rights of pedestrians and drivers and occupants of other vehicles, and streetcars and so as not to endanger the life, limb, or property of any persons lawfully upon the highways or streets of said city.”

Other ordinances applying to speed alone have been amended, but the reference to streetcars has not been deleted.

Other ordinances still apply to streetcars and vehicles, as was the case of the original section.

The city justifies the prosecution under a general ordinance, Section 74-2, from which it quotes:

“The provisions of this chapter are intended to apply to all traffic and to all operators not specifically excepted, and nothing in this chapter shall be construed to exempt from its provisions and penalties either * * * [enumerated exceptions not applicable]. All provisions by their terms applying to vehicles shall, so far as practicable, apply to streetcars, and to led, ridden and herded animals. * * *”

In addition to what has been said above by the defendant, he also urges that Section 74-56 has no application, because of the definition of motor vehicle and vehicle. Section 74-la-12 defines a motor vehicle as “any self-propelled vehicle.” Section 74-la-ll defines vehicle as any “device not designated for operation upon fixed tracks or rails. ”

The city ignores the reference to vehicles and focuses its attention upon the term “operator,” thus bringing into effect the general ordinance Section 74-2, from which quotation has been made above.

In view of this state of the ordinances of the city of Cincinnati, we consider that it was not the intention of the city council to cause the provisions of Section 74-56 to continue to apply to operators of streetcars after the amendment of Section 74-53.

It is obvious that there must be a distinction between operators of automobiles and streetcars as well as a difference between the vehicles themselves. The speed laws still apply — to streetcars — and streetcars are required by the existing ordinances to be operated in such a manner as to permit stopping them in the assured clear distance ahead.

It is true a streetcar may be operated so as to cause damage in ways other than by mere speed. It may be caused to damage a vehicle by an almost imperceptible movement forward — or by turning a corner of a street.

If it is desired to reach such movements, then the ordinances should be specific.

Ordinances providing for the creation of crimes must be definite and specific and leave nothing to implication. In State v. Meyers, 56 Ohio St., 340, 47 N. E., 138, the first paragraph of the syllabus is:

“A statute defining a crime or offense cannot be extended, by construction, to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute.”

As to the other assignment of error — that the judgment is not sustained by sufficient evidence — we are also in accord with the defendant.

We do not find that the guilt of the defendant was established beyond a reasonable doubt. It is difficult to see from a reading of the record just what the operator of the streetcar could have done under the emergency presented.

For the reasons given, the judgment of the Municipal Court of Cincinnati is reversed, and judgment here entered in favor of the defendant who is dismissed.

Judgment reversed and final judgment for appellant.

Hamilton, P. J., and Matthews, J., concur.  