Malcom v. Dempsey

• Decision Date: 07 September 1962
• Citation: 184 A.2d 474,55 Del. 93
• Parties: , 55 Del. 93 Homer C. MALCOM, Alverta Malcom, and Candaco Malcom, a minor child, by her next friend, Alverta Malcom, Plaintiffs, v. Louise H. DEMPSEY, Defendant.
• Court: Delaware Superior Court

Page 474

184 A.2d 474

5 Storey 93, 55 Del. 93

Homer C. MALCOM, Alverta Malcom, and Candaco Malcom, a minor child, by her next friend, Alverta Malcom, Plaintiffs, v. Louise H. DEMPSEY, Defendant.

Superior Court of Delaware, New Castle County.

Sept. 7, 1962.

Julian D. Winslow, Wilmington, for plaintiffs.

George L. Sands and Carl W. Mortenson, Wilmington, for defendant.

STOREY, Judge.

This matter comes before the Court on defendant's motion to strike paragraph 7(e) from the complaint, on the ground that it fails to state a claim upon which relief can be granted, and that it is immaterial in this case. Defendant has filed a sufficient affidavit to support motion.

Paragraph 7(e) of the complaint states that the defendant was negligent in that:

'She failed to stop at the said intersection, the said intersection being marked with a stop sign in the direction in which defendant was traveling, thereby violating Title 21, Section 4143(a) of the Delaware Code of 1953.'

QUESTION PRESENTED: If the defendant failed to stop at an intersection marked by a stop sign in the direction in which the defendant was traveling, was the defendant negligent per se if such stop sign was not placed at the intersection in accordance with the proper legal authorization?

Three possible rules exist in relation to an unauthorized stop sign at which the defendant in a negligence action allegedly failed to stop. First, since the stop sign did not have proper legal sanction, its de facto existence is not a relevant fact on the issue of the defendant's negligence. Second, the stop sign is a circumstance that the jury can consider in determining whether or not the defendant was negligent. Third, violation of the stop sign by the defendant is negligence per se just as if the stop sign had been properly authorized.

The middle view would seem to have the best rationale of the three. It does not make too much sense to completely ignore a de facto warning sign which is identical to customary de jure warnings. Nor does it make sense to give a de facto warning the status of a de jure warning and state that the standard of conduct is fixed by law when such is not the case. It seems much better to let the de facto warning stand on its own merits and let the jury draw its own conclusions from the evidence and the application of the principles of common law negligence.

The better reasoned cases support the proposition that a jury question is presented. In Tyson v. Shoemaker, 208 Ga. 28, 65 S.E.2d 163 (1951), the Supreme Court of Georgia said the following on the question of contributory negligence:

'The defendant sought to allege and prove the existence of a stop sign at the intersection of highway 38, and that it was put there in 1934 by the Street Superintendent of the City of Cairo on orders of the Chairman of the Street Committee of the Mayor and Council. Such allegations and proof, if made would not establish the sign as one having been duly authorized by law, and the failure of the plaintiff to heed the sign would not constitute negligence per se. However, it was a question of fact for the determination of the jury whether the plaintiff exercised ordinary care for his own safety and the safety of others in failing to observe and obey the unofficial stop sign.' 65 S.E.2d 165.

The court held that it was error for the trial court to exclude evidence of the existence of an unofficial stop sign and the plaintiff's failure to heed the sign since these facts 'were relevant matters in a consideration of the diligence and negligence of the parties under the circumstances in this case, and such matters should have been submitted to the jury.' 65 S.E.2d 166.

The Supreme Court of New Hampshire also has reached the same conclusion. In Legere v. Buinicky, 93 N.H. 71, 35 A.2d 508 (1943), the court said of an allegedly unauthorized stop sign:

'* * * Of course if the sign was not place on accordance with statutory authority directly or under an ordinance, then it was a mere circumstance of the accident, entitled to such consideration as a warning and a suggestion for caution in operating a motor vehicle as a reasonable driver under the circumstances would give to it, but without legal requirement beyond its bearing as a detail of the situation upon due care of a driver passing northerly through Pearl Street and approaching Myrtle Street * * *'. 35 A.2d 509.

In Rodenkirch v. Nemnich, Mo.App., 168 S.W.2d 977 (1943), the St. Louis Court of Appeals was ruling on an instruction which was open to two different constructions. At the time of the accident, Missouri had no statute requiring motorists to stop at stop signs. The trial court had granted the defendant's motion for a new trial and the plaintiff had appealed. The court described the contentions of the parties as follows:

'The respondent contends that the foregoing instruction is erroneous because it submitted to the jury the theory that a failure to observe the stop sign in question was negligence as a matter of law. If the instruction did so charge, it was clearly erroneous, for at the time of the occurrence in question there was no statute requiring persons operating motor vehicles at that point on Old Florissant Road to stop in obedience to said sign. The State Highway Department, by erecting such signs at highway intersections, cannot create a standard of conduct for drivers of motor vehicles, violation of which the courts must declare to be negligence regardless of all other facts and circumstances.

'The appellant contends that by requiring a finding that defendant 'carelessly and negligently' disregarded said stop sign, the court left the issue of negligence to the jury.' 168 S.W.2d 979.

The appellate court upheld the decision granting the defendant a new trial saying that an instruction open to two constructions, one a correct rule of law and the other incorrect, is erroneous. Thus the court held there was no negligence per se when no statute imposed a duty on motorists to stop. The same conclusion would follow where there is a prohibitory statute but a particular stop sign was not erected in accordance with the statute. In neither case is the standard of care imposed by law. But in both cases, the existence of the stop sign and the failure to heed it, are relevant facts for the jury on the question of negligence. See also Roberts v. Wilson, 225 Mo.App. 932, 33 S.W.2d 169, 172 (1930). Watson v. Long, Mo.App., 221 S.W.2d 967 (1949).

One text on the law of torts has considered the question of whether violation of an unauthorized stop sign could be negligence per se. In discussing a case where a stop sign was posted under an ordinance invalid for faulty publication, the text said of the negligence per se rule the following:

'* * * And indeed there would seem to be a conceptual difficulty in the way of applying the negligence per se rule to such a case since it cannot be said that the party set his own judgment up against the community standard as crystallized in law, for some step has been omitted which was needed to consummate that crystallization * * *.' Harper and James, The Law of Torts, Vol. 2, § 17.6, p. 1002, ftnt. 29.

Just as the better reasoned opinions reject the negligence per se rule in cases of violations of unauthorized stop signs, so do they reject the rule that such violations are irrelevant on the question of negligence. The Iowa Supreme Court in Geisking v. Sheimo, 252 Iowa 37, 105 N.W.2d 599 (1960) relied on the following quotation from 164 A.L.R. 216 to support its conclusion that 'An unauthorized sign is not meaningless when questions of negligence are under consideration.'

'Furthermore, many courts take the view that even if it is shown that the traffic signal involved was not properly authorized, it is still effective to control the question of the negligence or contributory negligence of a pedestrian or vehicle driver who disregards it, at least to the extent that such disregard may be taken into consideration by the trier of the facts as one of the circumstances to be passed upon in determining the question of a violator's negligence or contributory negligence.'

The court found that the question of negligence was one for the jury.

In Sellman v. Haddock, 66 N.M. 206, 345 P.2d 416 (1959), a stop sign authorized by a city ordinance was placed on the left hand side of the street contrary to the regulation of the State Highway Commission which provided that a single stop sign would be placed on the right hand side of the road. The defendant-appellant admitted he did not stop at the stop sign but claimed the sign was wholly ineffective for any purpose and the ordinance authorizing it was a nullity. The trial court held that the ordinance was valid but evidently did not apply the negligence per se rule to its violation. The Supreme Court held that the stop sign was relevant regardless of the validity of the ordinance. The Court said:

'* * * [H]ere the stop sign had been erected and maintained by legally constituted authority and ...