COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70042 CITY OF LYNDHURST : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RUDOLPH J. GERACI : : Defendant-appellant : PER CURIAM : DATE OF ANNOUNCEMENT : JULY 25, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from LYNDHURST MUNICIPAL COURT : Case No. 95-TRD-08956 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: IRL RUBEN, ESQ. RUDOLPH J. GERACI, ESQ. City Prosecutor 2020 Carnegie Avenue 5301 Mayfield Road Cleveland, OH 44115 Lyndhurst, OH 44124 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the Lyndhurst Municipal Court and appellant's brief. The municipal court found defendant Rudolph Geraci guilty of failure to yield the right of way when turning left, in violation of Lyndhurst Municipal Code 432.16. Defendant's sole assignment of error complains the court erred by finding he failed to yield the right of way because the car that struck him did not have the legal right of way. R.C. 4511.42, is substantially similar to Lyndurst Municipal Code Section 432.16, and states in relevant part: "The operator of a vehicle *** intending to turn to the left within an intersection *** shall yield the right of way to any vehicle *** approaching from the opposite direction, whenever the approaching vehicle *** is within the intersection or so close to the intersection *** as to constitute an immediate hazard." The accident occurred in the intersection of Mayfield and Sunview Roads. Mayfield runs east/west; Sunview runs north/south. There are stop signs on either side of Sunview, but no stop signs or signals on either side of Mayfield. Defendant stopped at a stop sign as he was proceeding north on Sunview, with the intent to make a left turn onto Mayfield. On the north side of the intersection, Theresa Dragga waited at a stop sign with the intent to proceed through the intersection and continue southbound on Sunview. As Dragga proceeded through the intersection, a third motorist approached the intersection on - 3 - Mayfield while traveling westbound. The third motorist pulled into the left turn lane just after Dragga entered the intersection. The third motorist saw defendant accelerate into the intersection and begin a left turn when he collided with Dragga's car. The accident occurred just as Dragga was about to clear the intersection. Defendant maintains he did not have to yield to Dragga because she did not have the right of way -- he claims the right of way belonged to the third motorist who pulled onto Mayfield's left turn lane. "Right of way" is defined to mean 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 approaching from a different direction into its path. R.C. 4511.01(UU)(1). If the person claiming the right of way is not proceeding in a lawful manner, the preferential status is lost and the obligations of the vehicles are determined by the rules of the common law. Almanza v. Kohlhorst (1992), 85 Ohio App.3d 135; Maine v. Hawley (Aug. 3, 1995), Cuyahoga App. No. 67835, unreported. The evidence failed to show Dragga lost her right of way when the third motorist entered the left turn on Mayfield. The third motorist testified: "[a]s I came into the turning lane [Dragga] was already crossing Mayfield Road here, you understand? This was flowing all at the same time. As I came into the turning lane I was observing her ahead making her move. Now, when she got wherever IMG is, she got to about here, she had already completed crossing the road, which then I, of course, was going to make my - 4 - left. As soon as she crossed, I was going to make my left. [Defendant], for some reason, came out, I mean, she was right about here. The front of her car was here. He came out and either cut it too short, he was trying to beat me and cut me off." In essence, defendant should have given right of way to two drivers --Dragga and the third motorist. The third motorist had the right of way over defendant because she was proceeding down Mayfield and preparing to make a left turn. Dragga also had the right of way over defendant when she passed the third motorist because the third motorist, by her own admission, did not enter the left turn lane on Mayfield before Dragga entered the intersection. Thus, even if the third motorist initially had the right of way over defendant, Dragga gained the right of way over defendant when the third motorist permitted Dragga to clear the intersection. Either way, the evidence clearly supports a finding that defendant failed to yield to Dragga. Accordingly, we overrule the assigned error. Judgment affirmed. - 5 - It is ordered that appellee recover of appellant 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 Lyndhurst Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA BLACKMON, PRESIDING JUDGE JOSEPH J. NAHRA, JUDGE JOHN T. PATTON, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .