DiSabatino v. Ellis
| Decision Date | 12 September 1962 |
| Citation | 5 Storey 84,55 Del. 84,184 A.2d 469 |
| Court | Supreme Court of Delaware |
| Parties | , 55 Del. 84 Ernest A. DiSABATINO and Ernest DiSabatino & Sons, Inc., a Delaware corporation, Appellants, v. Louise A. ELLIS and Robert B. Ellis, Appellees. |
Appeal from the Superior Court in and for New Castle County.
F. Alton Tybout, of Prickett, Prickett & Tybout, Wilmington, for appellants.
Robert C. O'Hora and John P. Daley, Wilmington, for appellees.
This action arises out of a collision of two cars at Fourth Street and Bancroft Parkway in Wilmington. After discovery by both parties, defendants moved for summary judgment, which was denied. Del.Super., 178 A.2d 471. The case is here on appeal from that decision. The facts are these:
On November 12, 1959, about 3 P.M., Louise A. Ellis, one of the plaintiffs, was driving her car north on Bancroft Parkway. The weather was clear, the sun was shining. Bancroft Parkway has north and southbound lanes separated by a grass plot. A stop sign controls northbound traffic on Bancroft Parkway at its intersection with Fourth Street.
As Mrs. Ellis approached Fourth Street, she stopped about ten feet from the south curb line thereof to permit children to cross Bancroft Parkway. She remained stopped for two or three minutes, or longer. She then moved to the intersection and stopped again.
On deposition, Mrs. Ellis testified that she looked in both directions on Fourth Street before entering the intersection. She did not see any car moving toward her from her right, i. e., from the east. She did not see any car moving toward her from her left, i. e., from the west. Mrs. Ellis proceeded into the intersection intending to continue north on Bancroft Parkway. As she drove she watched children at play on the north side of Fourth Street. While she was in the intersection, a car driven by defendant Ernest A. DiSabatino came from her left and struck her car at the back of the left rear wheel. Mrs. Ellis first became aware of Mr. DiSabatino's car when she heard the sound of his brakes; at that time it was a few feet from her car. She was not able to estimate its speed but thinks it was going 'pretty fast'.
Mr. DiSabatino's affidavit states that he was proceeding east on Fourth Street at about twenty miles per hour. As he approached Bancroft Parkway, his view of the street area near the stop sign on the Parkway was partially obscured by a taxicab parked on the south side of Fourth Street; Mrs. Ellis' car started to cross the intersection in front of him, he applied brakes and skidded into it.
Mrs. Ellis' view in the direction from which Mr. DiSabatino was coming was also obscured by the taxicab; she may or may not have looked in that direction, that is, toward the west, after she got to a point in Fourth Street where she could see beyond the taxicab.
The appeal presents two questions for decision:
(1) Was Mrs. Ellis' duty at the stop sign determined by a State statute or by a Wilmington traffic regulation?
(2) Was Mrs. Ellis contributorily negligent as a matter of law?
The court below held that the City regulation determined Mrs. Ellis' duty and that she was not contributorily negligent as a matter of law.
We begin by noting the difference between the statute and the regulation.
21 Del.C. § 4143 provides:
'(a) Whenever a stop sign, notifying drivers to come to a full stop, has been erected by the proper State or local authorities as provided in this title, it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto.
'(b) The operator of any vehicle who has come to a full stop as provided in subsection (a) of this section, shall not enter into, upon or across, such highway or street until such movement can be made in safety.'
Section 602(c) of the Wilmington Street and Sewer Department's 'Motor Vehicle Laws, Traffic Regulations and Rules for Driving' provides:
'The driver of a vehicle or coach who has stopped or slowed down as required by these Rules and Regulations at the intersection with a 'Boulevard' or 'Through Traffic' street, or in obedience to a 'Stop' or 'Slow' sign at any intersection, shall yield to other vehicles and coaches within the intersection or approaching so closely on the intersecting street as to constitute an immediate hazard, but said driver having so yielded may proceed and other vehicles and coaches approaching the intersection on the intersecting street shall yield to the vehicle or coach so proceeding onto or crossing the intersecting street.'
Differences between these two acts are readily apparent. The statute makes stopping mandatory and then commands the driver to 'not enter into, upon or across, such highway or street until such movement can be made in safety.'
The regulation, on the other hand, obliges the driver to stop and they yield to other vehicles 'within the intersection or approaching so closely * * * as to constitute an immediate hazard'; but, having yielded to those whose proximity makes them 'an immediate hazard', the driver may then proceed under a right to have others yield to him.
We agree with the learned court below that there are differences of substance between these two acts. It seems quite clear that the statute imposes a higher duty upon the driver controlled by the stop sign than does the regulation; under the latter he must yield only to those close enough to be an 'immediate hazard', while under the statute he may not go until he can do so 'in safety'.
Which, then, of these two acts was applicable to Mrs. Ellis? Was she obliged to wait until she could cross 'in safety'? Or was she obliged to yield to Mr. DiSabatino only if he was so close as to be an 'immediate hazard'? This brings us to the issue which is critical in determining the first question raised in this appeal.
The lower court's finding that the regulation fixed a driver's duty at a stop sign in Wilmington was based on a construction of two statutes, the first of which was a part of a broad act revising and consolidating statutes relating to the City of Wilmington; 17 L.Del., Ch. 207, § 31 (April 13, 1883) provides, in part, that 'The Council' shall have power,
'* * * generally to prescribe and regulate the use of the highways, streets, squares, lanes and alleys of the city, and to have and exercise control over the same, subject to the provisions in that behalf hereinafter contained and to the general supervision and control of the General Assembly * * *.'
The second statute provided that certain powers theretofore exercised by 'The Mayor and Council of Wilmington' were to be exercised through a new agency, the 'Street and Sewer Department'. 18 L.Del., Ch. 188, § 1 (April 20, 1887). Among other things, this agency was,
'* * * to have entire jurisdiction and control within the limits of said city of the streets, squares, lanes, roads or alleys thereof * * *.'
The court concluded, and plaintiffs argue here, that by these acts the General Assembly surrendered to The Mayor and Council of Wilmington and its agency, the Street and Sewer Department, complete and unrestricted power to legislate with respect to the use of the City streets and the traffic problems therein.
Our analysis of the question leads us to a different conclusion.
We begin with the general proposition that a local traffic ordinance or regulation is not valid if it conflicts with a statute relating to the same subject. A concise statement of this principle is given at 147 A.L.R. 522:
We do not understand plaintiffs to dispute this as general law. They contend, however, that it is not applicable because of the express legislative grant to the City of Wilmington in the 1883 and 1887 statutes. Those statutes do delegate broad powers to the City, but to equate them to 'surrender' is to read in them more than we can find.
We note that the act of 1883 gave 'The Council' general powers in the way of street layout, design and related matters. Power was also given 'generally to prescribe and regulate the use of the highways, streets' and so on. But this was followed immediately by language of...
To continue reading
Request your trial
-
Carper v. Stiftel
...That is, effect must be given to every part of a statute, where possible, so that no part will be inoperative. DiSabatino v. Ellis, Del.Supr., 184 A.2d 469, 473 (1962). The majority's finding that the increased rate of contribution applies to these Plaintiffs, who were incumbent judges at t......
-
McMilin v. United States, 1906.
...Sr. His negligence consisted of failing to keep a proper lookout, Wootten v. Kiger, 226 A.2d 238 (Del. Supreme Ct.1967); DiSabatino v. Ellis, 184 A.2d 469, 474 (Del.Supreme Ct. 1962); Jewell v. Pennsylvania R. R. Co., 183 A.2d 193, 196 (Del.Supreme Ct. 1962); Eskridge v. Ruth, 9 Terry 439, ......
-
Hamilton v. Trivits
...construction is reasonably possible. Application of Penny Hill Corp., Del.Supr., 2 Storey 203, 154 A.2d 888 (1959); DiSabatino v. Ellis, Del.Supr., 184 A.2d 469 (1962); E. I. duPont deNemours & Co. v. Clark, Del.Supr., 32 Del.Ch. 527, 88 A.2d 436 (1952). Provisions of a statute should be co......
-
Wise v. George C. Rothwell, Inc.
...of care to conduct governed by § 4133 as to conduct governed by the Delaware stop sign statute, 21 Del.C. § 4164(c). In DiSabatino v. Ellis, 184 A.2d 469 (Del.Supreme Ct.1962) the court distinguished between the standard of care required by the stop sign statute and that required by a City ......