Schneiderman v. Sesanstein, 21290.

• Court: United States State Supreme Court of Ohio
• Citation: 121 Ohio St. 80,167 N.E. 158
• Docket Number: No. 21290.,21290.
• Parties: SCHNEIDERMAN v. SESANSTEIN.
• Decision Date: 29 May 1929

121 Ohio St. 80
167 N.E. 158

SCHNEIDERMAN
v.
SESANSTEIN.

No. 21290.

Supreme Court of Ohio.

May 29, 1929.

Error to Court of Appeals, Summit County.

Action by Goldie Schneiderman, an infant, etc., against Barbara Sesanstein. Judgment for defendant was affirmed by the Court of Appeals, and plaintiff brings error. Affirmed.-[By Editorial Staff.]

This action was instituted in the court of common pleas of Summit county to recover damages for personal injuries claimed to have been sustained by plaintiff, Goldie Schneiderman, an infant, as a result of the negligence of the defendant, Barbara Sesanstein.

It was charged that the defendant operated her automobile in a careless and negligent manner, driving same at an excessive rate of speed, in violation of an ordinance of the city of Akron and of the law of the state, and that, while passing a public school building in the city of Akron, her automobile struck plaintiff, a girl about ten years of age, as she was crossing the street in the vicinity of said school.

During the trial an ordinance of the city of Akron offered in evidence was excluded by the trial court, the pertinent provisions of which ordinance are as follows:

‘Section 154-49. Upon approaching within two hundred (200) feet of or in passing a school on school days between the hours of eight (8) o'clock in the morning and four (4) o'clock in the afternoon, or upon approaching within two hundred (200) feet of or in passing any public playground between the hours of eight (8) o'clock A. M. and seven (7) o'clock P. M. on any day during which such playground is open and in use, the person operating any vehicle shall not proceed nor shall the owner of any such vehicle thereon or therein cause or permit the same to proceed at a rate of speed greater than fifteen (15) miles per hour.’

The trial of the case resulted in a verdict for the defendant, upon which judgment was rendered in the court of common pleas and affirmed by the Court of Appeals; and thereafter, upon motion being granted, the case was certified to this court.

Allen, J., dissenting.

(Syllabus by the Court.)

An ordinance of a municipality which prescribes a manner of driving or a rate of speed of automobiles in conflict with the provisions of the statute is invalid.

The provision of an ordinance of a municipality which makes unlawful a rate of speed exceeding 15 miles per hour, regardless of whether such speed is greater than reasonable and proper, considering the width, traffic, use, and the general and usual rules of such road or highway, is in conflict with section 12603, General Code, and therefore invalid.

A witness who testifies as to facts cannot be discredited by evidence of the expression of an opinion relative to the merits of the case.

[Ohio St. 82]Rockwell & Grant, of Akron, for plaintiff in error.

Mather, Nesbitt & Willkie, of Akron, for defendant in error.

MATTHIAS, J.

The first and chief assignment of error urged by plaintiff in error is based upon the refusal of the trial court to

[167 N.E. 159]

receive in evidence the ordinance of the city of Akron, which refusal was based upon the ground that its provisions are in conflict with the provisions of section 12603, General Code of Ohio.

Although, as stated by the Court of Appeals, with a single exception all of the witnesses who testified as to the speed of defendant's automobile were of the opinion that it was not in excess of 15 miles per hour, the evidence of the one witness who testified that the speed was greater was competent, its weight being for the jury, and would require the submission of the ordinance, if the same were valid. The importance of the question thus presented is manifest, for, if such ordinance is valid, and was violated by the defendant, then her act constituted negligence per se, and it would have been the duty of the court to so instruct the jury.

The claimed invalidity of the ordinance in question is based upon its conflict with general law. It is a police regulation, such as municipalities are authorized to adopt and enforce under authority of section 3, art. 18, of the Constitution of the state. The police power thus conferred by the Constitution cannot be denied municipalities by statute, but that power is restricted, in that such ‘local police, sanitary and other similar regulations' must not be ‘in conflict with general laws.’ Thus the [Ohio St. 83]legislative branch of the state government enacts laws to safeguard the peace, health, morals, and safety, and to protect the property of the people of the state, and these are the general laws referred to They apply to all parts of the state alike. Municipalities may adopt and enforce local regulations covering the same subject so long and so far as the same are not in conflict with general laws. That was clearly determined in City of Fremont v. Keating, 96 Ohio St. 468, 118 N. E. 114. However, the ordinance there in question was in no wise in conflict with general laws; the speed regulations there prescribed being the same as those of the statute.

To the same effect is the decision of this court in Stange v. City of Cleveland, 94 Ohio St. 377, at page 381, 114 N. E. 261, 262, where a local police regulation upon a subject not legislated upon by the state was held valid, but, as there stated, ‘if, after the statute became effective, the ordinance should conflict in any wise with it, the ordinance of course must yield.’ So, also, in Niehaus, Bldg. Insp., v. State ex rel. Board of Education, 111 Ohio St. 47, 144 N. E. 433, where the city of Dayton by ordinance sought to exact a fee for the inspection and approval of plans for public school buildings in the absence of any provision by statute authorizing the exaction of a fee for the performance of a duty imposed thereby, this court held the local regulation in conflict with general law and invalid.

Likewise, in the very recent cases of City of Bucyrus v. Department of Health, 120 Ohio St. 426, 166 N. E. 370, and State ex rel. Neal, Dir. of Health, v. Williams, Mayor, 120 Ohio St. 432, 166 N. E. 377, it was held that the state by general law has full [Ohio St. 84]and complete power in respect to sanitation, that power being unaffected by article 18 of the Constitution, for, thereunder, municipalities have only such power as to local sanitary regulations as are not in conflict with general laws enacted by the Legislature. In every similar case where the validity of local police, sanitary, or similar regulations has been sustained, it has been upon the ground of want of conflict with general laws. Greenburg v. City of Cleveland, 98 Ohio St. 282, 120 N. E. 829;City of East Liverpool v. Dawson, 101 Ohio St. 527, 130 N. E. 936;Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N. E. 519.

The following statement found at page 386 of the opinion in the case of Froelich v. City of Cleveland, 99 Ohio St. 376, 124 N. E. 212, 215, is quite pertinent, and though, of course, not controlling, is persuasive: ‘When the state passes a law which prevents the running of an automobile upon highways faster than at a certain rate, and in the business and closely built-up portions of a city faster than at a certain lesser rate, that is a regulation for the protection of the lives of the people of the whole state and has no special relation to any of the political subdivisions of the state. Such a law applies upon all streets without reference to the character of the street or its structure, except as prescribed by the law itself.’

General laws have been enacted regulating the manner of driving, and particularly the speed of automobiles upon the roads and highways of the state. These laws are safety regulations enacted in the interest of, and for the protection of, the public, and they definitely flx and prescribe the standard [Ohio St. 85]of care that must be exercised in the operation of automobiles throughout the state. They are as follows:

Sec. 12603. ‘Whoever operates a motor vehicle in and upon the public roads or highways at a speed greater than is reasonable and proper having regard for the width, traffic, use and the general and usual rules of such road or highway, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined as hereinafter provided. A rate of speed greater than fifteen miles an hour in the business or closely built-up portions of a municipal corporation or more than twenty-five miles an hour in other portions thereof, or more than thirty-five miles an hour outside of a municipal corporation, shall be prima facie evidence of a rate of speed greater than is reasonable and proper.’

Sec. 12603-1. ‘Whoever operates a motor vehicle on the public roads or highways without due regard for the safety and rights

[167 N.E. 160]

of pedestrians and drivers and occupants of all other vehicles, and so as to endanger the life, limb or property of any persons while in the lawful use of the roads or highways shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined as hereinafter provided.’

Sec. 12608. ‘The provisions of section twelve thousand six hundred and three shall not be diminished, restricted or prohibited by an ordinance, rule or regulation of a municipality or other public authority.’

In determining whether the provisions of the ordinance in question conflict with the general law covering the same subject, a proper test may be applied [Ohio St. 86]by the inquiry: Does the ordinance prohibit an act which the statute permits, or permit an act which the statute prohibits? Village of Struthers v. Sokol, supra.

When the law of the state provides that a rate of speed greater than a rate therein specified shall be unlawful, it is equivalent to stating that driving at a less rate of speed shall not be a violation of law; and therefore an ordinance of a municipality which attempts to make unlawful a rate of speed which the state by general law has stamped as lawful would be in conflict therewith. If such conflict does not...