COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68694 STEVEN A. SOMOGYI, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION NATIONAL ENGINEERING & : CONTRACTING COMPANY : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 11, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-263804 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: STEVEN A. SINDELL (#0002508) Sindell, Lowe & Guidubaldi 610 Skylight Office Tower 1660 West Second Street Cleveland, Ohio 44113-1454 For Defendant-Appellee: TERESA G. STANFORD (#0030387) Law Offices of Jan A. Saurman 14650 Detroit Avenue - Suite 450 Lakewood, Ohio 44107-9946 - 2 - 2 SPELLACY, C.J.: Plaintiffs-appellants Steven and Barbara Somogyi ("appel- lants") appeal the verdict in favor of defendant-appellee National Engineering and Contracting Company ("National"). Appellants filed suit to recover for personal injuries received by Steven Somogyi in a collision involving Somogyi's bicycle and a truck driven by an employee of National. Appellants assign the following errors for review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS BY GIVING THE JURY AN INSTRUCTION THAT APPELLEE HAD THE RIGHT- OF-WAY. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS BY REFUSING TO INSTRUCT THE JURY ON APPELLEE'S DUTY TO OPERATE APPELLEE'S VEHICLE WITHIN THE ASSURED CLEAR DISTANCE AHEAD. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS IN REFUSING TO INSTRUCT THE JURY THAT IF APPELLEE OPERATED APPELLEE'S VEHICLE IN VIOLATION OF HIS DUTY TO OPERATE THAT VEHICLE WITHIN THE ASSURED CLEAR DISTANCE AHEAD, THEN APPELLEE LOST THE RIGHT-OF-WAY. Finding none of the assignments of error to have merit, the judgment of the trial court is affirmed. I. On December 11, 1992, Steven Somogyi was riding his bicycle against traffic on Brainard Road in Lyndhurst. Somogyi was wearing dark clothing and his bicycle was not equipped with a front head- light. Visibility was poor as it still was dark and sleeting. Some witnesses described foggy and overcast conditions. - 3 - 3 At 6:48 a.m., Somogyi was struck by a side mirror on a truck driven by Timothy Jones, an employee of National. The mirror was larger than what is standard for the truck but not illegal. Jones was traveling in the proper lane of traffic at less than the posted speed limit. Jones never observed Somogyi prior to impact and, therefore, took no action to avoid the collision. Somogyi was injured in the accident. II. In their first assignment of error, appellants argue the trial court erred by instructing the jury that the truck driver, Jones, had the right-of-way. Appellant contend the instruction did not apply because the issue in the case was the negligence of the respective parties and because right-of-way only applies when vehicles intersect not when both are in the same lane. The trial court gave the following charge to the jury: Now, drivers of vehicles, as I said, must drive on the right half of the roadway. Failure to do so is negligence, unless it falls within one of the exceptions to this rule. And as you have heard me say, I have told you that the bicycle rider here was negligent. The driver of a vehicle may assume, in the absence of notice or knowledge to the contrary, that an approaching vehicle will be driven on the right half of the roadway. Motorists are required to use ordinary care to observe other traffic and to control their vehicle to avoid injury to the person of another if it can be avoided throughout the exercise of ordinary care. Now, the mere fact that the driver has the right-of-way or that the bicyclist failed to - 4 - 4 yield the right-of-way or that the bicyclist was otherwise negligent does not relieve the driver of his duty of ordinary care toward the plaintiff, as I have defined that duty to you. The driver of a vehicle who has the right of way has the right to travel uninterruptedly in a lawful manner. He has the right to rely on upon his preferred status and to assume, in the absence of knowledge to the contrary, that others will obey the law by not entering into his travel path. Right-of-way means the right of a vehicle to proceed uninterruptedly in a lawful manner in the direction in which it is moving in preference to another vehicle or pedestrian approaching from a different direction into its path. So by the same right, however, a truck driver with the right-of-way still has a duty of ordinary care toward someone who has placed himself in danger within the right-of-way if the truck driver has or reasonably should have perceived the bicycle in its path. The truck driver has the duty to use reasonable care to avoid injuring that bicyclist, regardless of whether the bicyclist was negligent or in violation of the law. (Tr. 434-436). Appellants' argument that Jones might have been negligent in not perceiving Somogyi was incorporated into the jury charge. The trial court instructed the jury that the driver with the right-of- way still has a duty of ordinary care toward one within the driver's path which the driver should have perceived. There was no error in the instruction and appellant was not harmed. "Instructions must be viewed in their totality, and if the law is clearly and fairly expressed, no reversal will be predicated upon - 5 - 5 error in a portion of the charge." Laverick v. Children's Hosp. Medical Ctr. of Akron (1988), 43 Ohio App.3d 201, 202. The trial court clearly and fairly expressed the law to the jury. The right- of-way instruction did not detract from the issue of which party's negligence was the proximate cause of the accident. Appellants state the right-of-way law is inapplicable when the vehicles are traveling in the same lane. R.C. 4511.01 (UU)(1) defines "right-of-way" as: The right of a vehicle, streetcar, 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, streetcar, trackless trolley, or pedestrian approaching from a different direction into its or his path. Appellants argue this statute applies only where the paths of the vehicles are to cross or intersect. It is a legal determination of who goes first and who goes second. The statutory definition of right-of-way may not apply to vehicles traveling in the same direction. Hubner v. Sigall (1988), 47 Ohio App.3d 15, 17. In the instant case, the vehicles were traveling in opposing directions but in the same lane of travel. Appellants contend the word "into" in the statutory definition requires a reading that the vehicles must be traveling on intersecting paths. This is too narrow a reading of the statute. Jones was proceeding lawfully and had the right to continue to do so in that direction. Somogyi was traveling in a different direction from Jones and came into Jones' path. The statutory - 6 - 6 definition of right-of-way was applicable to these facts and the trial court did not err in so instructing the jury. Appellants' first assignment of error is overruled. III. In their second assignment of error, appellants contend the trial court erred by refusing to give an assured-clear-distance instruction. Appellants assert Jones had sufficient time to discern the bicycle and avoid the accident. Appellants argue assured-clear-distance instructions apply when any object or vehicle is at a distance ahead regardless of any movement in any direction of the object or vehicle. The only question is whether the object or vehicle appeared at a sufficient distance ahead to permit the driver exercising ordinary care to stop in time to avoid a collision. The trial court, in a civil action, may properly refuse to give a requested special instruction before argument to the jury unless such instruction is both a correct statement of law and pertinent and applicable to an issue raised by the evidence in the case. Pellini v. Dankowski (1969), 17 Ohio St.2d 51, paragraph two of the syllabus. R.C. 4511.21(A) states: No person shall operate a motor vehicle, trackless trolley, or streetcar 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 any other conditions, and no person shall drive any motor vehicle, trackless trolley, or streetcar in and upon any street or highway at a greater speed - 7 - 7 than will permit him to bring it to a stop within the assured clear distance ahead. A person violates this statute if there is evidence the driver collided with an object which (1) was ahead of him in his path of travel, (2) was stationary or moving in the same direction, as the driver, (3) did not suddenly appear in the driver's path, and (4) was reasonably discernable. All of these elements must be present for a statutory violation to occur. Pond v. Leslein (1995), 72 Ohio St.3d 50. The assured-clear-distance statute was held to be inapplicable when a motorist cut down another driver's assured- clear-distance ahead by backing up in the driver's lane of travel. Cerney v. Domer (1968), 13 Ohio St.2d 117, paragraph three of the syllabus. In Clevenger v. Huling (1964), 4 Ohio App.2d 45, the court held the assured-clear-distance provision of R.C. 4511.21 did not apply to a collision between two motor vehicles approaching from opposite directions. Somogyi was approaching Jones from a different direction. The bicyclist was not stationary or moving in the same direction as Jones. Appellants have not met all of the elements necessary for a statutory violation of R.C. 4511.21(A) to be found. An instruc- tion on the assured-clear-distance statute would not have been per- tinent and applicable to the facts of the instant case. The trial court did not err in refusing to give this instruction to the jury. Appellants' second assignment of error lacks merit. - 8 - 8 IV. In their third assignment of error, appellants assert that if the trial court was correct in giving the right-of-way instruction, then it also should have instructed the jury that that preferred status can be lost if the vehicle is operated contrary to law. The trial court defined right-of-way for the jury as the right of a vehicle to proceed uninterruptedly in a lawful manner. Jones was driving in the correct lane of travel, within the speed limit, with mirrors which were not of an illegal size. There was no evidence he was proceeding unlawfully in any manner. A trial court need not give an instruction which is unsupported by the evidence. Pallini, supra. Appellants' third assignment of error is overruled. Judgment affirmed. - 9 - 9 It is ordered that appellee recover of appellants its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, J. and JOSEPH J. NAHRA, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .