Smith v. Lenzi

I dissent. The chief complaint is that the court erred in giving the instruction and in refusing the defendant's request to charge, both of which are set forth in the prevailing opinion. The judgment is reversed because of error in both particulars. I think no error was committed in either.

The reasonableness or validity of the ordinance is not questioned, nor is it contended that the city had not the power or authority to promulgate it. The alleged errors are not based on any such ground. The complaint made of the instruction is that it failed to take into consideration the law of the state requiring operators of automobiles at intersections to slow down, and failed to charge that the defendant had the right to assume the plaintiff, in approaching the intersection, would do so and that no burden or responsibility was placed on him; that the instruction failed to direct the jury that the defendant, as he entered and was about to drive over the intersection, had, under the statute, the right of way over the plaintiff, who was approaching the intersection to the defendant's left, the defendant in such respect urging that, when he had stopped at the stop signal, he did all that under the ordinance he was required to do, and having stopped he then had the right immediately to go forward and enter and drive over the through highway or street and that one approaching him to his left was required to yield him the right of way. Such, too, in effect, is also the holding of the prevailing opinion. The trial court took the view and charged the jury that the defendant was not only required to stop but to remain standing "so long as danger of a collision with passing or approaching automobiles on said Highland Drive [the through street or highway] was reasonably to be apprehended," and that if the jury found the relative positions of the parties were such that a collision was reasonably to be apprehended "if the defendant's car was moved forward, then under such circumstances it was the duty of the defendant to have remained standing and surrendered the right of way to the plaintiff." In other words, the trial court recognized the reasonableness and validity of the ordinance and gave it effect.

In view of the evidence, I think the charge was correct. Certainly the defendant, after having stopped as he was required to do, could not claim the right to then immediately enter and attempt to drive over the intersection when to do so was in effect to drive in front of a moving and an approaching car, or when to do so it otherwise was reasonably apparent a collision would result. The accident occurred on a dark night. There was a gas station on the northwest corner of the intersection and an automobile in front of it, which to some extent obstructed the view as the plaintiff approached the crossing. The defendant testified that, as he entered the intersection, he discovered plaintiff's car approaching about 70 feet away and stepped on the gas with the hope of passing over in safety. He further testified he realized that plaintiff's carmight reach him before he got across. The plaintiff testified that he was only about 35 feet away when the defendant entered the intersection, and that, as soon as he discovered him, the plaintiff did all he could to stop and avoid the collision, but was unable to avoid it. The defendant, as he testified, was traveling about 10 or 12 miles an hour, the plaintiff, as he testified, about 25 miles an hour. If under the circumstances the jury found, as they could, that the plaintiff was only about 35 feet from the crossing when the defendant entered it and attempted to pass over it, almost in front of plaintiff's approaching car, the jury also could find that reasonable prudence and care on the part of the defendant required him to anticipate danger of a collision entering and attempting to drive over the crossing under such circumstances and hence was guilty of negligence in attempting to do so. Though it be assumed, as is contended by the defendant, that he at the intersection had the right of way, nevertheless his right was not exclusive, but was only relative and subject to the duty and obligation imposed on him to use the right as not to injure another. His duty to use due care to avoid a collision still remained reciprocal. In other words, he could not thrust himself into apparent danger which he reasonably could have avoided and defend his course on the ground that he had the right of way. 1 Blashfield, Cyc. of Automobile Law, 492; notes to cases, 21 A.L.R. 988.

The charge complained of implies no more by directing the jury that, after the defendant had stopped at the stop signal, as he was required to do, he could not go forward and attempt to enter and pass over the through highway, if to do so a collision with passing or approaching automobiles was reasonably to be apprehended. The contention of the defendant to the contrary renders the apparent and real purpose of the ordinance ineffectual. If, as is contended, all that the defendant, in obedience to the ordinance, was required to do, was merely to stop, and then, regardless of conditions or circumstances, was privileged to enter and drive over the through highway and compel passing or approaching automobiles to his left to look out, protect him, and yield him the right of way, the ordinance establishing a through highway and requiring stop signals on streets intersecting it is rendered of no substantial use. It is not contended that legal power was not conferred on the city to regulate the use of its streets and the traffic upon them, or that it was not competent for the city to establish a through highway, or to require vehicles approaching it on streets intersecting it to come to a full stop. I think the weight of authority is to the effect that it is competent for a municipality having conferred upon it power to regulate and control the use of its streets and the traffic upon them to establish one-way or through streets and stop signals within its corporate limits and to regulate and control traffic upon its streets, if the ordinance or regulation in such respect is not unreasonable, and that such an ordinance or regulation is not regarded as being in conflict with or in contravention, but in aid of a statutory law prescribing rights of way of vehicles at and approaching intersections of public highways. 1 Blashfield, Cyc. of Automobile Law 228, 229; Carey v. Guest, 78 Mont. 415,258 P. 236; Ex parte Wilchar, 102 Tex.Crim. R.,278 S.W. 850; Seager v. Foster, 185 Iowa 32, 169 N.W. 681, 8 A.L.R. 690; Elie v. Adams Express Co., 300 Ill. 340, 133 N.E. 243. Since the competency or the reasonableness of the ordinance is not questioned, it is our duty to give it a fair and reasonable meaning and one consonant with the spirit and purpose of it and not one which destroys the efficacy of it or renders it useless. One of the undoubted purposes of establishing a through street or highway is to expedite, facilitate, and control the trafffic upon it. To accomplish that, a somewhat freer use or assurance is given to drivers upon it than is given on other streets and a corresponding restraint put on those approaching it on streets intersecting it. To hold that, when one approaching a through highway or street has stopped at the stop signal and then immediately, regardless of conditions or the situation, is privileged to enter the intersection and compel passing automobiles to his left to yield him the right of way and permit him to do so, constitutes a full compliance with the ordinance, and that to hold otherwise is an unreasonable interference with the motorist's statutory right of way, is to destroy the purpose and object of establishing a through highway. If the direction in the charge that a motorist, after having stopped at the stop signal, is not privileged to move forward and enter and attempt to drive over the through highway or street, if the situation is such that to do so is likely to cause a collision, is an undue restriction of his statutory right of way, then is the requirement to stop at the stop signal also an undue restriction of such right. To claim that it might as well be claimed that stop light signals and stop signals of officers on streets in business districts of municipalities requiring motorists to stop and stand and yield the right of way to motorists to their left as well as their right to enter or cross the street and to remain standing until a signal is given to move forward, also constitute undue interferences with a motorist's right of way prescribed by the statute. I think it clear that by the statute prescribing rights of way on public highways of the state it was not the intention to take from municipalities power or authority to make and enforce reasonable traffic regulations with respect to the use of their streets by motor or other vehicles driven on them. On crowded or much-traveled streets public safety demands such regulations. When the statute says the speed limit of motor or other vehicles on a public highway of the state shall not exceed 30 miles an hour, that does not mean that a motorist may drive along a crowded or much-traveled street of a municipality at 30 miles an hour, and that any municipal regulation or ordinance which forbids it is an infringement of his statutory right.

The claim made that the charge complained of did not direct that the plaintiff, in approaching the intersection, was required to slow down or that no duty or responsibility was imposed upon him is not tenable, for the reason that the court in other portions of the charge charged the jury that one operating an automobile on a public street or highway, among other things, was required to use reasonable and ordinary care to prevent injury to others using the highway, that he was required to drive in a careful and in a prudent manner and at a speed not greater than was reasonably safe and so as not to injure another, and that in approaching crossings and intersections of streets and highways he was required to reduce the speed, and that a duty was imposed upon him to see persons and vehicles in front of him and to use all reasonable measures to avoid collisions. That charge applied to the plaintiff as well as to the defendant. I am thus of the opinion that no error was committed in the charge complained of.

The statement in the prevailing opinion that the trial court by the instruction submitted the case on the theory that the ordinance superseded the statute on the question of right of way, does not, as I think, reflect the instruction. What the court told the jury was that the defendant, before entering the through highway, was required to bring his car to a stop, "and remain standing so long as the danger of a collision with passing or approaching automobiles on said Highland Drive was reasonably to be apprehended." That, the defendant contends, deprived him of his statutory right of way, because, as he urges, he, after he had stopped, had the right to immediately move forward and enter the through highway, and, if in doing so there was danger of a collision from those approaching him from his left, it was their duty, not his, to slow down or stop and avoid the collision. In the prevailing opinion it is not stated whether the charge in such respect is wrong or not, or whether or not it, as contended by the defendant, deprived him of his asserted statutory right. While it is held in the prevailing opinion that, when the defendant stopped, he had complied with all of the conditions of the ordinance, and then from that moment was free to go forward without restriction and as he approached the through highway it was the duty of those approaching him from his left to yield him the right of way, still it further and in connection therewith is also stated that such right was "only relative and must be applied in the light of the conditions existing at the time," which, together with the speed the cars approached, their distance from the intersection, and the ability of the drivers to see, were all factors to be considered in determining "whether the appellant or the respondent was entitled to the right of way." In view of such holding, it is somewhat difficult to perceive wherein the instruction was erroneous. The instruction, in substance, is that the defendant, in approaching and before entering the through highway, was required to stop and "remain standing so long as the danger of a collision with passing or approaching automobiles on said Highland Drive was reasonably to be apprehended," and then if the jury found that the relative positions of the parties, and the speed at which the plaintiff was driving "were such that a collision was reasonably to be apprehended if defendant's car moved forward, then he was required to remain standing and yield the right of way to the plaintiff." I see nothing wrong in that. Certainly the defendant cannot urge that he had the right to drive into an apparent danger and defend his course by asserting he had the right of way. I think the charge is in harmony even with what is stated in the prevailing opinion, that the right to the statutory right of way was but relative and must be applied in the light of existing conditions. The trial court so applied it, and recognized that by the establishment of the through highway certain restrictions were placed on those approaching and entering it from intersecting streets. To say that such view superseded or annulled the statutory right of way is but to say that through highways may not be established and enforced because to do so is an infringement on the statutory right.

Now, as to the refused request. What is urged against it is not only that it is argumentative, but chiefly that it is wrong in substance. The first sentence of the request embodies the proposition that an operator of a vehicle has the right of way over an operator approaching from his left at an intersecting or connecting highway regardless of circumstances or conditions, and regardless of the ordinance establishing a through highway. I need but point to the language of the prevailing opinion that such right is but relative and must be applied to existing conditions to show that the request, stated as broadly as it is, is wrong in view of "existing conditions" and circumstances in evidence. The request entirely ignores all efficacy of the ordinance. Such a request, without modifications, for reasons already stated, would in effect nullify all municipal traffic regulations no matter how reasonable or efficacious they may be, and implies that a municipality could not legally establish a through street and restrict those approaching and entering it from streets intersecting it, nor properly could promulgate light or stop signals or other reasonable traffic regulations notwithstanding public safety required and demanded it.

Then let the remaining sentence of the request be noticed, which is still more faulty. It is to the effect that, since the law gives a driver of an automobile the right of way over a driver approaching him from the left, if a collision occurs at a crossing, it follows, as matter of law that the driver approaching from the left was necessarily guilty of negligence, if the vehicles approached the crossing so nearly at the same time and at such speed that, if the speed of the one was not arrested a collision was reasonably to be apprehended. The request asked that such negligence, regardless of existing conditions or circumstances, except approaching the crossing by two vehicles at nearly the same time and if the speed of the one were not arrested a collision might reasonably be apprehended, be declared, not merely prima facie negligence, but conclusive negligence, negligence as matter of law, and, too, regardless of the ordinance, and regardless of all other conditions and circumstances in evidence. The request again embodies the proposition contended for by the defendant all through the case, that the statutory law prescribing rights of way at intersections of public highways was the motorist's flag warning every one to his left to let him pass under all conditions and circumstances, and regardless of the establishment of through highways and of all other municipal traffic regulations, notwithstanding in his attempt to do so under particular conditions or circumstances and the relative position of the parties, it was reasonably probable a collision would result. That is what the court charged the defendant could not do, and what is so charged is as I think, supported by the undoubted weight of authority. I think the substance of the request is not in harmony therewith nor even in harmony with what is said in the prevailing opinion as to the relative and respective rights and duties of the parties. Yet, because the court did not give the request as presented, and because it charged as it did, the judgment is reversed. I think the request wrong, not merely in form, but wrong in substance, and therefore was properly refused.

As to other matters discussed in the opinion and with the conclusions reached with respect to them, I concur. I am thus of the opinion that the judgment should be affirmed.