Jacob WEALTH and H. V. Higley, Administrator of Veterans' Affairs, an Officer of the United States of America, Plaintiffs,
Frank J. RENAI, Defendant.
Pedestrian's action for damages for injuries sustained when struck by defendant's automobile. Defendant moved to strike a paragraph of complaint. The Superior Court, Layton, J., held that statute prohibiting vehicles from passing at intersection does not exclude pedestrians from its protection, and violation of statute was actionable negligence where pedestrian was injured by violating automobile.
Defendant's motion to strike paragraph from complaint. denied.
Plaintiff, Wealth, has sued defendant for injuries due to defendant's alleged negligence. One of the specifications of negligence (Par. 3(a) of the complaint) is that defendant violated Title 21, § 4133(e) Delaware Code, which prohibits automobiles passing other machines proceeding in the same direction at intersections. The language of the section is as follows:
‘ The driver of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any railway grade crossing or at any intersection of highways unless permitted so to do by a traffic or police officer.’
[49 Del. 290] Plaintiff, a pedestrian, alleges that he was struck by defendant's machine as he was crossing at the intersection of Front and West Streets in this city and at the time defendant's car was passing another machine.
For the purposes of this motion, defendant concedes that the paragraph in question properly charges defendant with negligence per se as the result of a statutory violation but he argues that it fails to show any causal connection between the breach of the statute and the injury complained of. Or to state it differently, the defense is that the section was designed, not for the protection of pedestrians, but rather for the prevention of collisions between vehicles at intersections.
Louis J. Finger, Wilmington, for plaintiffs.
William Prickett, Wilmington, for defendant.
Plaintiff interposes two grounds of objection to defendant's motion to strike, (1) that such a motion is improper and (2) that inasmuch as it is not clear that the section in question excludes pedestrians from its scope, defendant's motion must be denied.
Plaintiff is clearly correct in objecting to the form of defendant's motion. A motion to strike under Superior Court Rules, Civil rule 12(f), Del.C.Ann., is not proper where it seeks the dismissal of one of the causes of action in a complaint as a matter of law. This was the function of the old demurrer, now abolished by the new Rules of Civil Procedure. A motion to dismiss one or all the causes of action asserted in the complaint, depending upon the case is proper. The very reading of the Rule indicates the impropriety of attempting to use a motion to strike in the instant case.
‘ (f) Motion to Strike. Upon motion made by a party * * * the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.’
Defendant's motion to strike is denied as a matter of form but for the sake of brevity will be considered as a motion to dismiss. I ...