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Huber v. City of Casper11/5/1986
idance in our analysis. Black's Law Dictionary (5th ed. 1979) defines "operate" as: "To perform a function, or operation, or produce an effect." "Operate" is described in 60 C.J.S. Motor Vehicles § 6(2), p. 159:
"The word `operate' may denote a personal act in working the mechanism of the car and refer to the physical handling of the controls of the vehicle; the physical act of working the mechanism of the car; and the term is defined as meaning to regulate and control the management or operation of the car, that is, to have charge of it as the driver."
The Annotation at 93 A.L.R.3d 7, § 3 addresses the meaning of "operate" when not in the context of driving while intoxicated:
" definitions of `operate' that have appeared in a significant number of cases are the following: (1) `operate' includes not only the motion of the vehicle but also acts which engage the machinery of the vehicle that, alone or in sequence, will set in motion the motive power of the vehicle; (2) a person operates a motor vehicle when he intentionally does any act that makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle * * *."
See also State v. Graves, 269 S.C. 356, 237 S.E.2d 584 (1977).
This court deems this reasoning and criteria persuasive. "Operation" means more than mere presence in a vehicle. We hold, then, that where a person is occupying the driver's seat of a motor vehicle and that vehicle is stationary in a designated parking zone or otherwise not occupying a traffic lane or impeding the flow of traffic, and the engine is switched off, that person is not operating the vehicle. This decision is in accord with precepts of statutory construction. We merely interpret "operate" in its "ordinary, everyday sense." Adams v. State, supra, 697 P.2d at 624. All of this is only to say that, in defining phraseology of the nature of the Casper ordinance, for purposes of leaving the scene of an accident a parked vehicle is not being operated when hit while standing at the curb.
FAILURE TO REPORT AN ACCIDENT
The second aspect of this appeal is whether appellant was a " river of a vehicle involved in an accident," and, if so, was Huber's report to the police sufficient to satisfy the notice requirements of subsection (b) of the city ordinance:
"Driver * * * shall as soon as practical * * * give notice * * * to the police and provide his name, address and the location of said accident."
Our examination of the record reveals that we can only speculate as to the sufficiency of the report given to the police, since no police blotter notation was made of the incident and the trial testimony of the dispatch officer was indefinite and conflicted with the testimony of other witnesses. Our discussion of "operate" is dispositive, and, as it is unlikely that a similar factual circumstance will reoccur, we will not address this subject further.
A defense has been suggested under the facts of this case to be available if Huber realized that there had been an accident and then recognized that he could have been endangered by the motorcyclists if he did not expeditiously leave the north Casper location at that hour of the night. The test which applies is what a reasonable person would do under similar circumstances, and this defense could be raised if Huber's report immediately after the accident was consequently delayed. As an example, see Isom v. State, 37 Ala. App. 416, 69 So.2d 716 (1954), where a black motorist involved in an accident with a white motorist was threatened with death, fled the scene, and was convicted of leaving the s
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