Facts
The case concerns a road accident that occurred on April 4, 1963 in Lugano, in which the motorcyclist Werner Oberhänsli was seriously injured after being hit by the car of Rino Tami. Oberhänsli brought a civil action against Tami and his insurer "Elvezia Infortuni" to obtain compensation for the damages.
The Pretore (Magistrate) attributed 1/3 of the responsibility to the driver and 2/3 to the motorcyclist. Oberhänsli appealed to the Civil Chamber of the Court of Appeal, which confirmed the Pretore's judgment, except for the allocation of court costs. The defendants subsequently appealed to the Federal Court.
Considerations
The Federal Court examined several aspects of the issue
1. Diversity of operating risk The Court established that, in principle, an abstract and approximate diversity of the operating risk of the vehicles involved in an accident does not result in a different allocation of responsibility. However, such diversity may be relevant if the dangerousness or vulnerability of a vehicle is concretely related to a negligence or circumstance for which the driver or holder must be held accountable.
2. Right of way The Court established that Oberhänsli, while circulating in the areas reserved for taxis, had not lost his right of way under Art. 15 para. 3 ONC, as these areas were an integral part of the roadway and could be used by the vehicles in circulation.
3. Violation of the obligation to keep towards the center of the roadway The Court considered that, although it was possible that Oberhänsli had made too tight a turn, the cantonal court had not been able to establish this with…