In re Wickstrum

• Decision Date: 27 November 1912
• Docket Number: 17,778
• Citation: 138 N.W. 733,92 Neb. 523
• Parties: IN RE PARKER M. WICKSTRUM. v. ERNEST HUNGER ET AL., APPELLEES PARKER M. WICKSTRUM, APPELLANT,
• Court: Nebraska Supreme Court

138 N.W. 733

92 Neb. 523

IN RE PARKER M. WICKSTRUM.

PARKER M. WICKSTRUM, APPELLANT, v. ERNEST HUNGER ET AL., APPELLEES

No. 17,778

Supreme Court of Nebraska

November 27, 1912

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.

AFFIRMED.

Barton Green, for appellant.

F. C Foster and D. H. McClenahan, contra.

OPINION

LETTON, J.

Appellant was arrested and convicted of the violation of a city ordinance providing that "it shall be unlawful for any person operating a motorcycle to carry another person on said machine in front of the operator." This provision is embraced within a general ordinance regulating the use of motor vehicles in the city of Lincoln. Having failed to pay the fine and costs adjudged against him, he was committed to jail. He applied to the district court for release upon a writ of habeas corpus, on the ground that the ordinance was unreasonable and void, and from a denial of the writ he has appealed.

Summarily stated, his contention is that the ordinance arbitrarily invades personal rights; that a motorcycle is a type of motor vehicle which is no more dangerous to operate with a passenger in front than an ordinary electric automobile, which is usually a glass-inclosed cab in which passengers may occupy a seat directly in front of the operator. From these facts he argues that where a restraining law or ordinance is against a class, or one type of a class, that type or class must be more dangerous than others, or legislation against it cannot be upheld. The testimony is that, when a person is carried in front of the operator upon a motorcycle, he sits between the handle bars of the machine, directly over the gasoline tank; that while, by leaning the body or moving the head to one side, the operator may see directly in front, the presence of the passenger obstructs the view to some extent. It is also shown that several instances have occurred of fuel tanks leaking and catching fire, and that in case of accident it is difficult or almost impossible for the person carried to get out from between the handle bars. It is also shown that such vehicles may be operated at a speed of from 30 to 60 miles an hour, and that upon wet pavements they are more likely to slip than four-wheeled vehicles.

The principles controlling the question presented are so well settled in this state as scarcely to require repetition "Courts will not ordinarily inquire...