Hall v. Burg , 206 S.C. 173 ( 1945 )

March 14, 1945. Appellant brought suit for personal injuries received in an accident on the seven hundred block of Lady Street in the City of Columbia. The complaint contains specifications of negligence relating to the manner of the parking of respondent's trucks on the street. In the specifications there was cited Section 1623 (38) of the Code of 1942, and also certain ordinances of the City of Columbia relating to parking. Respondent moved to strike as irrelevant certain of them, those designated (a), (b), (c), (d), (e), (i) and (j).

The motion was heard in the Circuit Court and an order was passed wherein it was said that the specifications of negligence sought to be stricken were based upon the State law regulating highways, referred to as the Motor Vehicle Safety Statutes. The Court held that where there are conflicting municipal ordinances regulating traffic, they prevail over contrary State laws thereabout. Code, Section 7233, was cited, which provides as follows: "The city councils and town councils of the cities and towns of the State shall, in addition to the powers conferred by their respective charters, have power and authority to make, ordain and establish all such rules, by-laws, regulations and ordinances respecting the roads, streets, markets, police, health and order of said cities and towns," etc.

The Court proceeded upon this reasoning and granted the motion in its entirety, striking the designated specifications of negligence from the complaint.

This appeal therefrom makes two questions, first upon the main conclusion of the lower Court, just stated, and second, whether under such conclusion specifications (d), (e), (i) and (j) were properly stricken, and appellant has subdivided the latter question into two, which, however, will be treated together.

Reference to the origin of Section 1623 (38) subtitled "Stopping and parking", discloses that it was Section 11 of Article III of Act No. 845, approved April 29, 1938, 40 St. at Large, p. 1719, entitled "An Act to Prescribe the Equipment, Size and Weight Limitations of Motor Vehicles and Equipment of Other Vehicles on the Highways of This State; to Provide Liability in Certain Cases of Illegal Operations and to Otherwise Regulate the Use of the Said Highways; to Provide for the Enforcement of the Provisions of the Act, and to Prescribe Penalties for Violations Thereof." Its object was the comprehensive regulation of truck traffic on the highways of the State and consideration of it and the related laws existing at the time of its passage is convincing that it was not intended by the General Assembly to thereby alter the vehicle-parking ordinances of the municipalities of the State, or to impinge upon the longstanding power of a municipality to legislate upon that subject with respect to streets within its corporate limits which are not State Highways. It does not appear that the seven hundred block of Lady Street of the City of Columbia is a part of the State Highway System designated by law.

The opinion in City of Ellisville v. State HighwayCommission, 1939, 186 Miss., 473, 191 So., 247, 277, contains apt and appropriate language as follows: "We may more safely rest our conclusion upon the fact that the regulation of traffic, including the parking of automobiles, is an ordinary power of police generally exercised by municipalities as regards all the streets within their boundaries, and since the municipalities are naturally and ordinarily vested with this power, a legislative intent to take it away and confer it upon some other authority must be clearly expressed. * * *" See the annotation upon the general subject in 144 A.L.R., beginning at page 307.

In Owens v. Owens, 193 S.C. 260, 8 S.E.2d 339,342 (the parking meter case), this Court recently said: "It is provided in the charter of the city (Columbia), that `The said Mayor and Alderman shall have, and they are hereby vested with, full and ample power, from time to time, under their common seal, to make all such ordinances, rules and regulations, relative to the streets and markets of the said city, as they may think proper and necessary, and to establish such by-laws, not inconsistent with the laws of the land, as may tend to preserve the quiet, peace, safety and good order of the inhabitants thereof' 14 Stat., page 572."

In the opinion just cited Code Section 7233, quoted above, was also referred to and earlier pertinent cases were cited to the same general effect.

There is no comfort to appellant's contention in this respect in Lynch v. Pee Dee Express, 204 S.C. 537,30 S.E.2d 449, 451, cited by him, for there was no issue in that case upon the applicability of the State statute; there the locus of the accident was a city street in temporary use as a State highway, a detour for the latter; and finally, it was found that "the quoted ordinance is (was) substantially the same as the State law" which was invoked (1942 Code Sec. 1616(21)).

It is, therefore, held that there was no error in striking from the complaint the reference to the State statutes, but, as indicated above, the order under appeal went further and struck out other specifications of negligence, which are here reproduced:

"(d) That the defendant by his agents and servants parked two trucks on the seven hundred block of Lady Street in a manner that was negligent and careless and which was calculated to obstruct the highway at the time and under the conditions recited, and all of which caused the serious and everlasting injuries sustained by the plaintiff.

"(e) That the defendant failed to have his trucks lighted or to give any notice to the traveling public that such trucks were extending out into the highway and by reason thereof the plaintiff was injured.

"(i) That the plaintiff is informed and believes that it has been customary with the defendant, his agents and servants, to park their trucks in the manner herein alleged, all of which the defendant was informed of and acquiesced under, and that such parking was dangerous or calculated to be dangerous.

"(j) That the defendant failed to provide adequate parking places for his trucks and other moving equipment and parked and permitted his agents and servants to park the same all over the street as herein alleged, and should have known that the same was calculated to be dangerous and would probably cause a serious injury to the traveling public as was done to the plaintiff."

The allegations of negligence contained in the foregoing quotation do not depend upon State statutes and we think were improvidently stricken from the complaint, certainly so upon the stated ground on which they were attacked. In this particular, the order appealed from is reversed.

The order of the Court of Common Pleas is accordingly affirmed insofar as it struck from the complaint as irrelevant the specifications of negligence contained in the complaint which were designated (a), (b) and (c), but it is reversed insofar as it relates to specifications (d), (e), (i) and (j).

Affirmed in part; reversed in part.

MR. CHIEF JUSTICE BAKER and MR. ASSOCIATE JUSTICE FISHBURNE concur.