Kolankiewiz v. Burke

• Decision Date: 04 March 1918
• Docket Number: No. 62.,62.
• Citation: 103 A. 249,91 N.J.Law 567
• Parties: KOLANKIEWIZ v. BURKE.
• Court: New Jersey Supreme Court

103 A. 249

91 N.J.Law 567

KOLANKIEWIZ

v. BURKE.

No. 62.

Court of Errors and Appeals of New Jersey.

March 4, 1918.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Theodore Kolanklewiz against Mary A. Burke. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff was injured while crossing a public street in Newark by the defendant's motorcar. The jury might properly find that a street car had stopped for passengers; that the plaintiff was crossing the street in front of the car and was struck by defendant's motorcar, which had overtaken the street car and was passing on the left.

Frank E. Bradner, of Newark, for appellant. Leo Stein, of Newark, for appellee.

SWAYZE, J. The first question raised in the case that calls for an expression of opinion is the admissibility of the city ordinance. The accident occurred before the passage of the act of 1915 (P. L. 285), and the case is therefore controlled by the act of 1906 (C. S. 3426) if applicable. The point made is that the ordinance conflicts with the statute. Section 22 of the statute enacts that no owner, purchaser, or driver of a motor vehicle shall be excluded or prohibited from, or excluded or limited in the free use thereof, nor limited as to speed upon public streets, nor required to comply with other provisions or conditions as to the use of motor vehicles except as in the act provided. The statute further enacts that no municipality shall have power to make any ordinance limiting or restricting the use or speed of motor vehicles, and that no ordinance theretofore or thereafter made by any municipal or local authority in respect to or limiting the use or speed of motor vehicles shall have any force, effect, or validity. There is a provision that drivers of motor vehicles, when overtaken by another motor vehicle, carriage, sleigh, or sled, shall keep to the right. A similar provision in the General Road Act has been construed to require the driver of the vehicle in the rear, who desires to pass, to pass on the left. State v. Unwin, 75 N. J. Law, 500, 68 Atl. 110.

The city ordinance requires that the driver of a vehicle, when passing a street car while it is stopping to take on or discharge passengers, shall keep at least four feet from the right-hand running board or lowest step of the car, shall give audible indication of his approach, and exercise due precaution not to interfere with or injure passengers getting on or off the car; and that if by reason of the presence of other vehicles, or by reason of the narrowness of the street, or any other reason, it is not possible to preserve such distance of four feet, the driver shall bring his vehicle to a full stop until the car shall have taken on or discharged its passengers and again started. The trial judge rightly construed this as requiring the vehicle, overtaking a street car which had stopped to receive or discharge passengers, to pass on the right, and not on the left, as provided by the road law, and by section 22 of the Motor Vehicle Act of 1906.

As to section 22, it is enough to say, with the trial judge, that it clearly applies only to motor vehicles, carriages, sleighs, or sleds, and that section 1 of the same act excludes from the statutory definition of motor vehicles such as run only upon rails or tracks.

The difficulty arises out of the statutory provisions already cited, forbidding municipal ordinances limiting or restricting the use or speed of motor vehicles. The language is broad enough to forbid such an ordinance as the present, but must be construed in the light of the situation that existed at the time the statute was passed, and of the failure to provide for cases which were then, as well as now, known to require some regulation, either general by the...