Christensen v. Tate

• Decision Date: 16 November 1910
• Docket Number: 16,178
• Citation: 128 N.W. 622,87 Neb. 848
• Parties: FRED CHRISTENSEN, APPELLEE, v. ROBERT J. TATE, APPELLANT
• Court: Nebraska Supreme Court

128 N.W. 622

87 Neb. 848

FRED CHRISTENSEN, APPELLEE, v. ROBERT J. TATE, APPELLANT

No. 16,178

Supreme Court of Nebraska

November 16, 1910

APPEAL from the district court for Dodge county: CONRAD HOLLENBECK JUDGE. Affirmed.

AFFIRMED.

E. C Strode, D. C. Burnett, Maxwell V. Bechtol and Courtright & Sidner, for appellant.

F. W Button, contra.

OPINION

SEDGWICK, J.

Defendant was driving his automobile along one of the streets of Fremont, leading from the city at a point where the road turns at a right angle, and within the limits of the city he met the plaintiff, who was driving a horse with a single buggy. Plaintiff's horse became frightened and ran for some distance, overturning the buggy and throwing the plaintiff to the ground. The plaintiff suffered personal injuries and the horse and buggy were both damaged. Plaintiff recovered a judgment for his damages in the district court for Dodge county, and the defendant has appealed.

1. It is contended that the court erred in admitting in evidence the ordinance of the city of Fremont regulating the speed of automobiles upon the streets of the city. The objection to these ordinances as evidence is twofold. It is contended that no sufficient foundation was laid for their admission. The clerk of the city testified that the ordinances were published in book form, and that the book shown him was "the last revised ordinances of the city of Fremont"; that the ordinance appearing in that publication in regard to the speed of automobiles had not been subsequently repealed or modified in any way. The plaintiff then offered in evidence two sections from the book in question, relating to the speed of automobiles, and stated in the offer that the same was published in book form by order of the city council and "published by authority of the city of Fremont, Nebraska." The offer was objected to "for the reason that it was incompetent, irrelevant, immaterial, and no foundation laid, and not in issue." The objection now is that there was no foundation laid for the introduction of these sections in evidence because it does not appear from this record that the book purported to be published by the authority of the city. The statute provides that the ordinances, "when printed or published in book or pamphlet form and purporting to be published by authority of the city, shall be read and received in evidence in all courts and places without further proof." Comp. St. 1909, ch. 13, art. III, sec. 46. In Union P. R. Co. v. Ruzicka, 65 Neb. 621, 91 N.W. 543, the specific objection was made that "there is no proof as to the validity or authority of the pretended ordinance." This circumstance is particularly mentioned in the opinion, and the conclusion that the admission of the ordinance in evidence required a reversal is expressly put upon that ground. There was no testimony in that case that the book offered was "the last revised ordinances of the city." If this book did not purport to be published by authority of the city it would of course not be competent as proof of the ordinances that it contained, but we think that under the circumstances of this case and the condition of the record, as above recited, the objection, "no foundation laid," should have been made more specific. It had been twice stated in open court that these ordinances were published by the city council, and that statement should have been directly challenged in order to avail the defendant of this objection.

It is also contended that these sections of the ordinance were void because in conflict with the statute. In 1905 the legislature enacted a law "requiring registration of motor vehicles and regulating their use or operation upon the highways or streets." Laws 1905, ch. 129. This law required owners of motor vehicles to obtain licenses from the secretary of state and made general provision in regard thereto. By section 8 of the act a speed limit was provided. The section contained the general provision that, "no person shall operate a motor vehicle on a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb of any person." It then provided specifically that "in the closer built-up portion of a city, town or village" such vehicle should not be operated at a greater rate of speed than one mile in 6 minutes, and in other portions of a city, town or village the speed should not be greater than one mile in 4 minutes, and outside of a city, town or village the speed should not be "at a greater average rate than twenty (20) miles per hour," and by section 11 of the act it was provided that "cities and towns shall have no power to pass, enforce or maintain any ordinance, rule or regulation * * * or exclude or prohibit any motor vehicle whose owner has complied with section two (2) or section four (4) of this act from the free use of such highways, and all such ordinances, rules or regulations now in force, are hereby declared to be of no validity or effect." Laws 1905, ch. 129. This chapter was substantially re-enacted in 1907, making some verbal changes in various sections, but not in matters above referred to, except that the word "average" was omitted from the limitation of speed outside of cities, towns and villages. Laws 1907, ch. 115. The ordinance in question was enacted in January, 1907, and provided that no automobile should be driven in the streets of Fremont at a greater rate of speed than 8 miles an hour, and that in turning a corner of any street or avenue, or crossing the intersection of any street or avenue, or in any alley of the city, the speed should not be greater than 4 miles an hour. It is insisted that the provision of the statute that cities and towns shall not prohibit motor vehicles whose owner has complied with the statute from the free use of the streets is violated by this ordinance; that "when automobiles first came into use the prejudice and fear was greater than it is now, because of lack of knowledge on the subject. The people did not then know, as they do now, that an auto traveling at the same speed as a team and buggy can be stopped in one-fourth to one-tenth of the distance that a team can. Hence a great fear went up, and ordinances were passed in many towns and cities limiting the rate of speed to a pace so slow as to be ridiculous to one...