Albert L. Simon, Wilmington, Del., for plaintiff.
Frank O'Donnell, Jr., Wilmington, Del., for defendant.
Plaintiff's motion to strike paragraph from counterclaim. Granted.
By paragraph 9(g) of his counterclaim, defendant charges plaintiff with negligence in that he,
'* * * violated Motor Vehicle Laws Traffic Regulations and Rules for Driving promulgated by the Street and Sewer Department of the City of Wilmington, Delaware, Sec. 601(b), defendant's vehicle being operated on a street known as a boulevard or through traffic street pursuant to Sec. 609(a) of the said Motor Vehicle Laws Traffic Regulations; * * *'
Section 601(a) of the Regulations of the Street and Sewer Department, hereafter called ordinances, relative to the operation of motor vehicles reads:
'Section 601--Boulevard or Through Traffic Streets
[49 Del. 538] '(a) The following streets and parts of streets are hereby declared to constitute 'Boulevard' or 'Through Traffic' streets for the purpose of this section:
* * *
* * *
'Washington Street--from Front Street to North City Line.'
Section 601(b) of the City ordinances is as follows:
'(b) The driver of a vehicle * * * traveling on a street intersecting a 'Boulevard' * * * street not otherwise marked or signed, on approaching the 'Boulevard' * * * street shall bring such vehicle to a speed not exceeding ten miles per hour before entering onto or crossing * * *.'
Defendant (counterclaimant) charges plaintiff with negligence in entering Washington Street, a boulevard street, at a speed in excess of ten miles per hour. It is conceded that where 38th street intersects with Washington Street, there is no slow sign. Plaintiff moves to strike the paragraph containing this charge from the defendant's counterclaim upon the ground that Section 601(b) is invalid.
Whether or not a City ordinance is valid which, in the absence of signs, charges motor vehicle operators with knowledge of the existence of 'Boulevard' or 'Through Traffic' streets, is not directly before me. The question here presented is whether Section 601(a) and Section 601(b) of the ordinances above set forth are valid in the light of Title 21 Del.C. § 505, the language of which is this:
'Erection of stop signs at designated highways
'The State Highway Department with reference to State Highways, and local authorities with reference to highways under their jurisdiction, may designate main traveled or through highways by erecting at the entrances thereto from intersecting highways signs notifying drivers of vehicles to come to a full [49 Del. 539] stop before entering or crossing such designated highway. All such signs shall be illuminated at night or shall be so placed as to be illuminated by the headlights of an approaching vehicle or by street lights.'
The words 'main traveled' and 'through highways' appearing in the above section are synonymous with 'Boulevard' and 'Through Traffic' street as used in the ordinances under review. It is axiomatic that a City ordinance governing the operations of motor vehicles is invalid if in conflict with a State statute. Cyclopedia of Automobile Law and Practice, Vol. I, Sec. 31. Bartlett v. McDonald,59 Ohio App. 85, 17 N.E.2d 284; Maxwell v. Kirkpatrick,22 Tenn.App. 21, 116 S.W.2d 340. Thus, if Section 601(b) had required motor vehicle operators to come to a full stop before entering a 'Boulevard' street, it would be ineffective unless it also provided for the erection of a stop sign. Does the fact that Section 601(b) requires motor vehicle operators to slow to ten miles per hour rather than come to a full stop remove it from the operation of Title 21 Del.C. § 505? I think not.
The Legislature has seen fit to grant to State and local authorities the right to designate main traveled or through highways if (1) stop signs are erected at the entrances thereto with the result that (2) traffic must halt before entering such throughways and (3) warning of the existence of the throughway is given. Section 601(b) of the City ordinance conflicts with ...