[45 Del. 471] This is an action brought by the Levy Court of New Castle County against Yellow Taxi, Inc., to recover alleged damages to an ambulance of the plaintiff resulting from a collision with the defendant's automobile at the intersection of Ninth and French Streets in the City of Wilmington at about the hour of 9:30 p. m.
French Street at the time of the collision had been duly designated by the municipal authority as a one-way street for traffic travelling in a southerly direction. The movement of traffic at the time on French Street and all streets intersecting it was regulated by an electric traffic control signal exhibiting simultaneously on both French Street and the intersecting street a red or green light in accordance with the control of traffic on each street at any given interval of time.
The plaintiff contends that its ambulance was on an emergency run to pick up a man who was suffering a heart attack at the corner of Fifth and Market Streets; that the operator of the ambulance was driving south on French Street at about thirty miles per hour with his siren sounding, his large red top light blinking, and with his headlights turned on and properly functioning; that as the driver of the ambulance approached the intersection of Ninth and French Streets the traffic control light was [45 Del. 472] against him--that is, red; that he slowed somewhat his rate of speed then entered the intersection before the light changed to green; that after proceeding approximately half way through the intersection the ambulance was run into and
struck on its right side by the plaintiff's automobile, which at the time had entered the intersection from a westerly direction on Ninth Street.
The plaintiff says that its ambulance being an emergency vehicle under the provisions of § 101 of the City Ordinances had the right of way at said intersection by reason of the provisions of § 606 and § 704 of said Ordinances. Finally, the plaintiff contends, since the defendant did not yield the right of way at the said intersection in accordance with the provisions of § 606 and § 704 aforesaid, that his operation became negligent, and, as such, was the proximate cause of said collision resulting in damages to the plaintiff in the sum of Thirty-two Hundred Dollars ($3200).
'Section 101. Authorized Emergency Vehicle--Vehicles of the Fire and Police Bureaus and such ambulances and emergency vehicles of municipal departments or public service corporations as are designated or authorized by the Department of Public Safety.'
'Section 606. Operation of Vehicles and Coaches on Approach of Authorized Emergency Vehicles--Upon the approach of any authorized emergency vehicle or vehicles giving audible signal by bell, siren or exhaust whistle, the driver of every other vehicle or coach shall immediately drive the same to a position as near as possible and parallel to the right hand edge or curb of the street, clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle or vehicles shall have passed, unless otherwise directed by a police officer. This provision shall not operate to relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons using the street, nor shall it protect the [45 Del. 473] driver of any such vehicle from the consequences of an arbitrary exercise of such right of way.'
'Section 704. Exceptions to Authorized Emergency Vehicles--The provisions of these Rules and Regulations regulating the movement, parking and standing of vehicles shall not apply to authorized emergency vehicles, as herein defined, while the driver of such vehicle is operating the same in an emergency in the necessary performance of public duties. This exemption shall not, however, protect the driver of any such vehicle from the consequences of a reckless disregard of the safety of others.'
The defendant contends that he is not liable for the plaintiff's damages for three reasons: (1) that the plaintiff's ambulance was not an emergency vehicle under the provisions of § 101 of the City Ordinances, therefore did not have the right of way at the intersection in accordance with the provisions of § 606 and § 704 of said Ordinances; (2) that the defendant was not negligent in his manner of operation at the time of the accident; and (3) contributory negligence on the part of the plaintiff constituted one of the proximate causes of said collision.
In support of the foregoing contentions the defendant testified in substance that he was driving east on Ninth Street approaching its intersection with French Street; that the windows of his automobile were closed; that he did not hear the siren of the ambulance; that the light was green on Ninth Street, and, in accordance therewith, he entered the intersection when for the first time he saw the plaintiff's ambulance which was entering the intersection on the east side of French Street against a red light; that upon seeing the ambulance he attempted to bring his automobile to a stop in order to avoid the collision, but was unable to do so within the few feet then separating the vehicles.
Abraham Hoffman and William Taylor, Jr., of Wilmington, for plaintiff.
William Bennethum, of Morford, Bennethum, Marvel & Cooch, of Wilmington, for defendant.
[45 Del. 474] TERRY, Judge.
This case was heard by me without a jury. The plaintiff to sustain its position that the ambulance was an emergency vehicle under the provisions of § 101, thus having the right of way at the intersection under § 606 and § 704, produced Police Inspector Wilson of the Department of Public Safety. The Inspector testified in substance that the Department of Public
The plaintiff did not produce any documentary evidence or testimony indicating that the Department of Public Safety had ever designated or authorized the plaintiff's ambulance as an emergency vehicle under the provisions of § 101 of said Ordinances.
The first question presented is, Was the plaintiff's ambulance an emergency vehicle under the provisions of § 101, and, as such, entitled to the right of way exemptions under the provisions of § 606 and § 704 of said ordinances?
In this respect the plaintiff contends (1) that the proper meaning to be given the words 'municipal departments' appearing in the third line of § 101 should not be restricted to designated or authorized vehicles of the City of Wilmington, but should be held to embrace all designated or authorized vehicles of any and all municipalities; (2) that New Castle County being a political subdivision of this State should be held to be a quasi municipal corporation, and, as such, subject to the benefits under § 101; (3) that the requirements of designation or authorization by the Department[45 Del. 475] of Public Safety have been fully met by the showing of a custom pertaining to the recognition of the plaintiff's ambulance as an emergency vehicle by certain officers of the Traffic Department of the Bureau of Police of the City of Wilmington.
Assuming arguendo the plaintiff's first contention--that is, that all designated or authorized vehicles of the departments of all municipalities were intended to be included within the category of vehicles indicated under § 101--yet, can it be said that a County ambulance is such a vehicle as could be properly designated or authorized by the Department of Public Safety under the provisions of said Section?
It is my considered thought that counties are not municipalities in the sense of being public corporations, or, strictly speaking, corporations of any kind. Counties are obviously lacking in the essentials which chiefly characterize municipal corporations. It is true both municipal corporations and counties are governmental agencies, but the manner and source of their creation and the purposes to be served are entirely at variance. Municipal corporations proper are called into existence either at the direct solicitation or by the free consent of the persons composing them for the promotion of their own local and private advantage and convenience. On the other hand, counties are local subdivisions of the State, created by the sovereign power of the State, of its own sovereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them. The municipal corporation is asked for, or at least assented to, by the people it embraces; the county is superimposed by a sovereign and paramount authority. With scarcely an exception all of the powers and functions of a county organization have a direct and exclusive reference to the general policy of the State, and are, in fact, but a branch of the general administration of that policy.
The word 'municipal' connotes a body politic and corporate[45 Del. 476] established by law to assist in the civil government of the State with delegated authority to regulate and administer the local or internal affairs of a city, town or district which is incorporated. Coyle v. Gray, 7 Houst 44, 30 A. 728, 40 Am.St.Rep. 109.
There are cases, however, that hold that a county in a sense is a municipal corporation and sometimes is classed as such. 20 C.J.S., Counties, § 3, page 758.
It is my conclusion that New Castle County is not a municipality in the sense that its ambulances could be designated by the Department of Public Safety as emergency vehicles under § 101 of the City Ordinances. Therefore, the traffic exemptions set forth under § 606 and § 704 have no application in the present case. But, let us concede arguendo the law to be otherwise--that is, that New Castle County is a
municipality in the sense that vehicles of its departments may be designated or authorized as emergency vehicles under § 101--yet, can it be said that mere recognition of vehicles as authorized emergency vehicles by Officers of the Traffic Department of the Police Bureau, without proof of knowledge of such recognition on the part of the members of the Department of Public Safety, could impliedly constitute a proper designation or authorization of such vehicle under said Section? I do not think so. The Department of Public Safety of the City of Wilmington was created under the provisions of § 1 of Chapter 111, Vol. 32 Laws of Delaware.
'Section 1. That on and after the first day of May, A.D.1921, there is hereby created a department for 'The Mayor and Council of Wilmington,' to be known as the 'Department of Public Safety,' which shall consist of three members, who shall be citizens of the United States, qualified electors of the State of Delaware, and residents of the City of Wilmington * * *.'
'Section 4. That on and after the first day of May, A.D.1921,[45 Del. 477] the said Department of Public Safety shall have full jurisdiction, management and control of the Police Department of said City, and all the powers and authorities conferred, and shall be subject to all the duties enjoined, upon the members of the Board of Police Commissioners of the City of Wilmington, by the laws of this State, and the ordinances of the said City relative to the Police Department of said City; and the said Board of the Police Commissioners of the City of Wilmington be and the same is hereby abolished, and the terms, duties and powers of he members of the said Board are hereby terminated on the first day of May, A.D.1921.'
It is evident from the foregoing sections that the Department of Public Safety shall consist of a Board of three members. I take it to be that this Board shall have the power to designate or authorize vehicles as emergency units under the provisions of § 101. In the absence of express designation or authorization by the Department mere recognition by the Traffic Officers, without proof of knowledge of such recognition on the part of the members of the Department, would not constitute a proper designation or authorization under said Section.
Now the question, Was the plaintiff's driver guilty of a negligent course of operation at the time of the collision which constituted the sole or one of the proximate causes thereof? A careful consideration of all the evidence leads to but one conclusion; that is, he was. He was negligent per se in violating § 203(a)(3) of the Municipal Ordinances, which constituted a contributing factor to the collision resulting in one of the proximate causes thereof.
'Section 203(a)(3) Red or 'Stop'--Traffic facing the signal shall stop before entering the nearest crosswalk at the intersection or at such other point as may be be plainly and officially designated[45 Del. 478] by authority of the Street and Sewer Department, and remain standing until Green or 'Go' is shown alone.'
In reaching my ultimate conclusion in the present case I have considered and disposed of each and all of the contentions advanced by the respective parties.
Any desire to give to County ambulances the same exemptions pertaining to municipal traffic regulations now afforded to properly designated or authorized emergency vehicles of the Municipal Departments under the provisions of Section 101 of the Ordinances can be accomplished with little effort. An amendment to Section 101 of the Ordinances to include County ambulances, ...