BGHZ 29, 163 VI. Civil Senate (VI ZR 202/57) = NJW 1959, 627
09 January 1959
Translated by:
F.H. Lawson and B.S. Markesinis
Professor B.S. Markesinis

The plaintiff’s lorry (motor vehicle and two trailers) remained stationary on the right side of the Karlsruhe–Frankfurt autobahn in the night of 7–8 March 1951 because of damage to the engine. About 1.15 a.m. the carrier K—husband of the defendant Sophie K and father of the defendant Herbert Bernhard K—driving a motor lorry with a trailer ran into the plaintiff’s stationary lorry. Both lorries sustained considerable damage. K, who had been driving his lorry, suffered such serious injuries that he died on the way to hospital.

The plaintiff contends that the collision is exclusively attributable to the fault of K; for he would have been bound, if he had been attentive enough, to notice the red light of the stationary lorry and the hurricane lantern which had been set up, and could have deviated in time on to the lane for overtaking. He demanded damages from K’s heirs.

The District Court upheld the claim in principle. The Court of Appeal, on the other hand, in principle affirmed the defendant’s liability in damages, limited only as to one-half. The plaintiff’s application for review, in which he sought to have the judgment of the District Court restored, failed for these


I. According to the findings of the Court of Appeal the carrier K, with his long-distance lights turned on, ran with the whole width of his vehicle into the stationary lorry, without braking in time or turning off to the left. During the previous one and a half hours several other vehicles had driven past the plaintiff’s lorry, whilst it stood on the autobahn. According to the Court of Appeal’s view K also would have been bound to notice the stationary lorry if he had been attentive enough, even if it had been completely unlit, and could then still have moved on to the lane for overtaking. It went on to say: the fact that K did not react at all to the obstacle before him proves that he was guilty of gross inattention or, alternatively, that despite his being blinded by the light of oncoming vehicles he drove on with undiminished speed into a space where he could not see. On the basis of the established facts, this view of the Court of Appeal is unexceptional in law. It therefore also held rightly that the defendants, as heirs of K, must under §§ 823, 1967 BGB make good the damage to the plaintiff.

II. The applicant for review objected that the Court of Appeal applied § 17 StVG and awarded to the plaintiff in principle compensation for only half his damage.

He alleges that §§ 7, 17 StVG are not applicable, because the plaintiff’s lorry was no longer in operation and urges that a vehicle is no longer in operation, even when it has not reached the end of its journey, if it has come to a full stop from lack of fuel or a mechanical fault. Even if a failure of its engine causes it to stop on a traffic highway and it stays there for a not wholly inappreciable time, it is generally regarded as no longer in operation, since it has lost the capacity to move.

This view of the appellant corresponds in result to the practice of the Reichsgericht and of several Courts of Appeal. According to that practice, a vehicle is no longer in operation in the sense of § 7 StVG if it is reduced to a complete standstill and owing to failure its engine can be set again in operation only after considerable time (e.g. RGZ 122, 270; 333, 132, 262). In so holding, the Reichsgericht also did not start from the engineering notion of operation, according to which a vehicle is in operation only as long as the engine is working directly or indirectly. It preferred the traffic-orientated point of view and even then attributed an accident to the operation of a motor vehicle if it stood in a close local and temporal connection with a particular operation or a particular operating mechanism, irrespective of whether the engine propelled the vehicle or not. According to the Reichsgericht’s point of view, approved by the Bundesgerichtshof, the operation of a vehicle is therefore not interrupted as a rule when it stops on the highway with the engine switched off. But even in adopting this traffic-orientated point of view, the Reichsgericht has interpreted the concept of the operation of a motor vehicle strictly, and assumed that the operation comes to an end when, for more than a short time, the vehicle can no longer move under its own power because of engine failure or lack of fuel.

The Bundesgerichtshof is unable to follow this practice of the Reichsgericht because, in view of the enormous increase of motor traffic and its dangers, it no longer conforms to the sense and purpose of § 7 StVG. The purpose of the Act, to protect participants in traffic against the increasing dangers of present-day motor traffic, makes it necessary to give a broad interpretation to the concept ‘in the operation of a motor vehicle’ [references]. In that decision this Senate denied that the vehicle was inoperative and so exempt from strict liability where a driver has left his lorry on the carriageway of a federal highway to have a good night’s rest. The Senate also attributed the accident that ensued because a car ran into the stationary lorry to the operation of the stationary vehicle in the sense of § 7 StVG. No other conclusion can be reached if similarly an accident occurs because a lorry remains standing for a considerable time on the carriageway of a high-speed highway owing to engine failure. The case that now calls for decision differs from the earlier one only because the lorry here had lost the capacity to proceed under its own power, whereas there, although its engine was turned off, it was ready to move on the highway. That distinction is irrelevant in applying § 7 StVG if one looks at the concept of operation in that provision from the traffic-orientated point of view, as the prevailing opinion now does. The risks which the motor vehicle produces in traffic emanate not only from the engine and its effect on the vehicle but, with the increase of traffic, more and more from its general flow and in particular from motor vehicles which stop or park on the carriageway portion of a high-speed highway. It is precisely on the autobahn on which the present accident occurred that stationary vehicles raise a typical risk for other participants in the traffic. In this case, as the Bundesgerichtshof observed in its judgment of 8 April 1957 [references] the risk of a stationary motor vehicle may even be greater than of a moving one. It is therefore permissible and justified by the sense and purpose of the provisions on liability of the Road Traffic Act to attribute an accident produced by a collision with a stationary vehicle not only to the operation of the moving but also of the stationary vehicle and hence to make both drivers strictly liable in damages. It is irrelevant whether the driver voluntarily pulled up for a break or was forced to stop on the carriageway owing to a defect in the vehicle. The decisive factor is that in both cases other participants in the traffic are put at risk by his vehicle standing on the highway. That an accident due to a defect in the vehicle or a failure of its mechanism should lead to liability of the driver is clear from § 7 StVG which expressly denies that this case constitutes an avoidable event which excludes liability. This liability for accidents which are attributable to a technical defect in the vehicle would, as the Court of Appeal of Karlsruhe (VersR 1956, 260) accurately emphasizes, be rendered nugatory to a considerable extent if it were held that an accident during a halt due to a technical failure was not within the operation of the vehicle and therefore did not lead to liability under § 7 I StVG. The wording of section II of that provision shows that the strict liability established by it extends also to accidents of this kind.

This result follows a line which originated with the decision of the Reichsgericht, RGZ 170, 1. There the Reichsgericht held that an accident was within the course of operation of a lorry in a case where a railway train collided with a lorry stuck in a hole in the road, the left rear part of its loading flap extending over the rails and unable to move under its own power because the lifting arrangement had been torn off. In that case, the Reichsgericht held that the operation of the motor vehicle continued. It explained that the lorry had moved to the place of accident and had thereby in the course of its operation set the cause which produced the collision. It is not essentially different when a lorry, as in the present case, blocks a portion of the highway because of engine failure. Here also the lorry drove up to the place of accident and therefore produced in the course of its operation a situation endangering traffic.

In examining the question whether in such a case § 7 StVG is to be applied, one cannot neglect the criterion of how long a motor vehicle stands on the carriageway. If the defect in the vehicle can be remedied in a short time and it can soon go on its way, it is now generally accepted in accordance with the practice of the Reichsgericht that the operation of the vehicle, for the purpose of § 7 StVG, is not interrupted by that halt (cf. inter alia RG JW 1929, 2055 no. 7 in a case where the petrol lead was blocked). If now one considers that the dangers from a stationary vehicle increase the longer it forms an obstacle for other participants in the traffic, it would be illogical from the traffic-orientated standpoint to treat favourably as regards liability the driver of a vehicle which is stationary for a longer period and which therefore creates a greater risk. It is wrong to exempt him from liability while a slighter operative risk of the vehicle attracts strict liability. If, as in the present case, a vehicle must stay for a longer time on the carriageway because it cannot be repaired at once, then if another vehicle collides with the obstacle, that accident must also be attributed to the operation of the stationary vehicle [references]. The operation of this vehicle continues as long as the driver leaves the vehicle in the midst of the traffic and the dangerous situation thus created continues. For the purpose of § 7 StVG the operation is only interrupted when the vehicle is withdrawn from the carriageway and is placed somewhere away from the regular traffic. Only thus the interruption of the operation is made known to others, but also that typical risk is eliminated which arises if motor vehicles are stopped or parked on the fast traffic lane of the carriageway. Whether as Walther [reference] contends, the answer should be different when an unauthorized user leaves a vehicle standing in the middle of the traffic, never to use it again, need not be examined since such a case is not in issue here. In the case for decision the lorry was on the way to a particular place and it was planned to continue the journey.

This view is criticized by Roth Stielow [reference] on the ground that it goes beyond the limits which the judge must observe in interpreting legislation. He starts by assuming that there is a ‘clear statutory direction to the contrary’ which it infringes.

But this starting-point is wrong. The enactment does not provide a detailed definition of the concept ‘in the operation of a motor vehicle’ and, as Boehmer (VersR 1957, 587) correctly explains, says nowhere that it only constitutes an accident within the operation if the vehicle is in motion or its engine is running. But if the legislator has not provided any further explanation, it is for the judge to interpret this ambiguous concept. The judge is therefore not prohibited from interpreting § 7 StVG broadly if in so doing he conforms to the sense and purpose of the enactment to protect participants in traffic against the dangers of motor traffic. It is therefore entirely within the scope of permissible interpretation if this protection of the participants is extended also to the dangers produced by stationary vehicles in present-day traffic conditions.

Even if the legislature in 1908 saw the chief danger of motor vehicles in their rapid movement due to engine power and hence regarded the mechanical aspect of the concept of operation as paramount, that would not exclude the adaptation of the concept ‘in the operation of a motor vehicle’ to the experiences and requirements of present-day traffic. As was already emphasized in another connection, according to experience modern traffic risks arise, not only from the engine as such and its effect on the motor vehicle, but from the movement of traffic as a whole. The motor vehicle itself creates a substantial danger as part of the traffic. Accordingly, Wussow [reference] rightly remarks that it is precisely from the point of view of risk, which the legislator takes as his starting-point, that the traffic-orientated aspect becomes much more prominent than the danger produced by the engine. The judge would not be true to his task if under these circumstances he clung to the concept, which is far too narrow, of a mechanical operation. His duty towards legislation and to law (Art. 20 II GG) allows him not only to develop the law by interpretation in the direction of its further evolution, but obliges him to do so if the finding of a just decision requires it. The wording of the enactment gives way to its sense and purpose. To give effect to them in applying the law in the individual case and to provide an equitable and reasonable solution to the dispute is the judge’s task [references]. As Radbruch [references] expresses it, not only must he follow the thoughts of the legislature, but he must also think them through to their final conclusion. But the judge does nothing else when he adapts the concept of operation in § 7 StVG to the experiences and requirements of the modern age in order to give effect to the legislative intent which is to afford extensive protection against the dangers of motor traffic.

In any case, it cannot be assumed that the characterization of the concept of operation from the traffic-orientated point of view, which has long prevailed in the courts, conflicts with the intent of present-day legislature, for while it has repeatedly altered other provisions of the Road Traffic Act, it has retained the wording of § 7 I StVG, although it was aware of the long-standing practice concerning the term ‘in the operation of a motor vehicle’.

III. In view of these considerations, the Court of Appeal was right in dividing the damage of the plaintiff according to § 17 StVG, and, when examining how far it was caused predominantly by the one or the other side, considered in the first place the risk arising from the operation of both lorries. [A discussion of the apportionment follows.]

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