In dissenting from the majority's opinion, I take exception at the threshold to the statement that, "Appellant Holton neither drove to the right curb nor stopped his vehicle. In fact, he remained in the inside, middle lane."
Holton never had the chance or opportunity to respond in anyway to the approaching ambulance and this is borne out conclusively by the record. As stated by the majority, Holton never heard the ambulance or saw the ambulance itself, nor did the state present *Page 213 any evidence proving he either heard or saw the ambulance.
Furthermore, Holton's testimony substantiated by both the ambulance driver, Farson, and his paramedic passenger, Cantrell, established that Holton was given all of "one second" to respond before being "blind-sided" by the ambulance:
"A. * * * And in just a matter of a second, it just smashed into the side of my truck.
"Q. Okay. Did you hear the siren before, before that at all?
"A. No; I did — did not hear the siren or I didn't see thelights prior to getting in the intersection, and when I got in the middle of the intersection, I just saw out the corner of my eye, the lights right before they hit me." (Emphasis added.)
Of course, an operator of a motor vehicle has a duty to use his senses of sight and hearing to respond to an emergency vehicle, but that same driver must be provided with a reasonable opportunity to do so. Expecting a citizen-driver who is operating his vehicle in a safe and careful manner to "yield the right of way, immediately drive to a position parallel to, and as close as possible to, the right edge or curb of the highway clear of any intersection, and stop and remain in such position until a public safety vehicle has passed," all in the space of one second, when he had only seen lights out of the corner of his eye, defies reason, logic and common sense.
According to R.C. 2901.04(A), the following rule applies:
"Sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused."
Also, the rule applies with equal force to criminal ordinances, to wit:
"The statutory rule of construction in R.C. 2901.04(A) that criminal statutes must be strictly construed against the state and liberally construed in favor of the accused is applicable to the interpretation of criminal ordinances as well." Vermilion v.Stevenson (1982), 7 Ohio App.3d 170, 7 OBR 215, 454 N.E.2d 965, paragraph one of the syllabus.
In the case sub judice, the majority is construing R.C. 4511.45 strictly against appellant Holton and liberally in favor of the state.
If the above were not enough to enable this court to reverse the instant conviction, then the clear syllabus of Dayton v.Ediss (1970), 25 Ohio Misc. 91, 54 O.O. 2d 45, 265 N.E.2d 834, should cause a reversal. The syllabus reads as follows:
"A motorist is not guilty of failing to yield the right of way to an emergency vehicle in violation of R.C. 4511.45 where he is proceeding on a green light at a normal speed through a street intersection with the car windows shut and the car heater and radio operating and the view partially obstructed by a crowded parking lot, and he did not see the emergency vehicle or hear its siren until a split second before the collision, although witnesses testified that they saw the flasher and heard the siren from a block away." (Emphasis added.)
Appellee failed completely to distinguish the clear holding ofDayton in its brief to us and, in my eyes, the majority also fails to distinguish Dayton. The sole question in the instant case is whether Holton should have yielded the right of way as was the precise question in Dayton. Dayton is squarely on the side of appellant in the case sub judice.
I am further perplexed as to how Holton was supposed to observe R.C. 4511.45 when that provision demands that the motorist "yield the right of way, immediately drive to a position parallel to, and as close as possible to, *Page 214 the right edge or curb of the highway clear of any intersection * * *." (Emphasis added.)
As Holton was struck in the middle of an intersection, in the right rear of his vehicle as stated by the majority, said blow disabling both Holton and his vehicle, it was physically impossible for him to exit the intersection, then accomplish the requirements of yielding, pulling over, etc.
I further dissent from the majority's statement (according to the trial judge) that the radio was being played loud. The only testimony regarding the sound level of the radio (actually a tape player) came from Holton who described it as "just average."
Although I agree completely with the majority herein that the Mount Vernon ambulance driver "forfeited his right of way" by his inattentive driving (Farson admitted that he did not see the traffic signal, nor obviously did he see Holton driving through the intersection), I would reverse Holton's conviction herein solely and exclusively on the ground that he, by the undisputed evidence, did not violate the instant ordinance. A finding of guilty herein is against the evidence presented to the municiple court, and, particularly when R.C. 2901.04 is observed, was and is contrary to law.
The trial court's finding of guilty as affirmed by this court should be reversed and defendant-appellant Holton should be discharged.