Malcom v. Dempsey

CourtSuperior Court of Delaware
Writing for the CourtSTOREY
Citation184 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.
Decision Date07 September 1962

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.

Page 475

[55 Del. 94] 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 [55 Del. 95] 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,

Page 476

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 [55 Del. 96] 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, [55 Del. 97] 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...

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3 practice notes
  • Briggs v. Baker, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • April 6, 1982
    ...Roberts v. Wilson, 225 Mo.App. 932, 33 S.W.2d 169 (1930); Clinkscales v. Carver, 22 Cal.2d 72, 136 P.2d 777 (1943); Malcom v. Dempsey, 184 A.2d 474 (Del.Super.1962); Geisking v. Sheimo, 252 Iowa 37, 105 N.W.2d 599 (1960); Comfort v. Penner, 166 Wash. 177, 6 P.2d 604 (1932); Warner v. Ambros......
  • DiSabatino v. Ellis
    • United States
    • United States State Supreme Court of Delaware
    • September 12, 1962
    ...her car. Considering the speed at which the two cars were moving--20 miles an hour by Mr. DiSabatino, 5 miles an hour by Mrs. Ellis--, the [55 Del. 93] open character of the intersection, the straight line of travel by Mr. DiSabatino, and the undisputed facts as to what took place, it concl......
  • Malcom v. Dempsey
    • United States
    • United States State Supreme Court of Delaware
    • March 26, 1965
    ...the stop signs, or either of them, did not constitute a statutory violation and negligence per se. See Malcolm v. Dempsey, Del.Super., 184 A.2d 474 (1962). At the trial, after instructing the jury in the usual manner regarding violation of certain unrelated traffic statutes as being neglige......
3 cases
  • Briggs v. Baker, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • April 6, 1982
    ...Roberts v. Wilson, 225 Mo.App. 932, 33 S.W.2d 169 (1930); Clinkscales v. Carver, 22 Cal.2d 72, 136 P.2d 777 (1943); Malcom v. Dempsey, 184 A.2d 474 (Del.Super.1962); Geisking v. Sheimo, 252 Iowa 37, 105 N.W.2d 599 (1960); Comfort v. Penner, 166 Wash. 177, 6 P.2d 604 (1932); Warner v. Ambros......
  • DiSabatino v. Ellis
    • United States
    • United States State Supreme Court of Delaware
    • September 12, 1962
    ...her car. Considering the speed at which the two cars were moving--20 miles an hour by Mr. DiSabatino, 5 miles an hour by Mrs. Ellis--, the [55 Del. 93] open character of the intersection, the straight line of travel by Mr. DiSabatino, and the undisputed facts as to what took place, it concl......
  • Malcom v. Dempsey
    • United States
    • United States State Supreme Court of Delaware
    • March 26, 1965
    ...the stop signs, or either of them, did not constitute a statutory violation and negligence per se. See Malcolm v. Dempsey, Del.Super., 184 A.2d 474 (1962). At the trial, after instructing the jury in the usual manner regarding violation of certain unrelated traffic statutes as being neglige......

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