Facts

On the morning of September 21, 1963, the complainant Rominger, driving a Mercedes truck, crossed a 2.5 m wide semi-trailer in a left-hand curve between Fideris-Station and Küblis. The 6 m wide asphalt road was wet from the rain. The driver of the semi-trailer, Bacchetta, drove strongly to the left into the curve, leaving only a 1.5 m wide lane for traffic coming from the opposite direction. Due to the lack of visibility in the curve, Rominger, who was driving correctly on the right, suddenly found himself about 20 m away from the semi-trailer coming towards him in the middle of the road. He braked, began to skid, and collided with the left front side of the semi-trailer while Bacchetta had meanwhile steered the trailer back to the right. The collision caused significant material damage, especially to the Mercedes truck, and Rominger was injured.

The District President of Jenaz fined Rominger by penal order of December 30, 1964, for lack of vehicle control and excessive speed, with a fine of CHF 60. The District Court Committee of Jenaz found Rominger guilty on April 3, 1965, of violating Art. 31 para. 1 and Art. 32 para. 1 SVG, confirming the penal order, but reduced the fine to CHF 40. Bacchetta was fined CHF 80 by the District President's penal order for violating the requirement to drive on the right (Art. 34 para. 1 SVG).

Rominger filed a nullity appeal against the judgment of the District Court Committee, requesting acquittal.

Considerations

The Court of Cassation decides that the complainant Rominger is only accused of not being able to properly avoid the risk of a collision due to excessive speed, but not of having lost control of his vehicle for any other reason, such as too late or incorrect reaction. Therefore, only Art. 32 para. 1 SVG, which specifically regulates speed as one of the requirements for vehicle control, can be considered as the violated provision.

According to Art. 32 para. 1 SVG, the speed must always be adapted to the circumstances, in particular the characteristics of the vehicle and its load, as well as the road, traffic, and visibility conditions. To adapt the speed to the visibility conditions,…