Elie v. Adams Express Co.

Mr. Justice Thompson delivered the opinion of the court: Defendant in error, Sam Elie, recovered judgment for $2500 in an action for personal injuries against plaintiff in error, the Adams Express Company, in the superior court of Cook county. The trial judge certified that the validity of a municipal ordinance was involved and that in his opinion the public interest required that the cause be taken directly to this court, and so this writ of error is sued out of this court to review the judgment of the superior court. This litigation arises out of a collision occurring at the intersection of Desplaines street and Jackson boulevard, in the city of Chicago, July 4, 1916. Defendant in error was riding a motorcycle west on Jackson boulevard and plaintiff in error was operating a motor truck south on Desplaines street. The vehicles collided near the southwest corner of the intersection and defendant in error suffered a broken leg. The original declaration charged general negligence in the operation of the motor truck. Eive additional counts were filed, the first three charging negligent operation of the motor truck contrary to the provisions of the Motor Vehide law, and the fourth and fifth charging negligent operation of the motor truck in violation of provisions of an ordinance of the West Chicago Park Commissioners. This ordinance provided “that no person shall drive or propel any vehicle across any boulevard in the control of the West Chicago Park Commissioners at any place where such boulevard intersects any street without first causing such vehicle to come to a full stop, and no person shall drive or propel any vehicle across any boulevard within the control of the West Chicago Park Commissioners at any intersection, as aforesaid, at a greater rate of speed than six miles per hour,” and fixed a penalty for violation of the ordinance. Jackson boulevard is an east and west street, sixty-six feet wide from building line to building line and thirty-eight feet wide from curb to curb, with the roadway paved with asphalt. It is under the jurisdiction of the West Chicago Park Commissioners. Desplaines street is a north and south street, eighty feet wide from property line to property line and forty-eight feet wide from curb to curb. Its roadway is paved with cobblestones north and south of the intersection. Double street car tracks are laid along the middle line of the street. It is under the jurisdiction of the city of Chicago. Jackson boulevard at and near this intersection is no different in appearance from any other public street paved with asphalt, and so far as the evidence shows there is nothing to indicate to the driver of a vehicle that it is a boulevard or that it is under the jurisdiction of the West Chicago Park Commissioners. Evidence was introduced to show, that plaintiff in error did not bring its truck to a full stop before crossing this boulevard and that it drove the truck across the boulevard at a greater rate of speed than six miles an hour. Plaintiff in error objected to the admission of the ordinance in evidence and offered instructions telling the jury that the ordinance in question was void and directing the jury to find the defendant not guilty under the fourth and fifth additional counts of the declaration. The ordinance was admitted in evidence and these instructions were refused. The court gave to the jury an instruction which told them that the “declaration and pleas of defendant which will be handed you to take to your jury room create the issues which you, the jury, are sworn to try under the law and the evidence.” At the conclusion of the trial the court gave to the jury all the pleadings on file and directed them to take the same to the jury room. Section 12 of the Motor Vehicle law in force at the time this accident occurred prohibited cities and other municipalities from passing any ordinance limiting or restricting the speed of motor vehicles and declared all such ordinances void. (Laws of 1915, p. 592.) The West Chicago Park Commissioners is within the meaning of this act a municipal corporation, (West Chicago Park Comrs. v. City of Chicago, 152 Ill. 392,) and the ordinance in question being in direct conflict with the statute just mentioned is void. Ordinances requiring motor .vehicles to stop at street intersections may be for the regulation of speed, (Christy v. Elliott, 216 Ill. 31,) in which case they are void, (City of Chicago v. Kluever, 257 Ill. 317; City of Chicago v. Shaw Livery Co. 258 id. 409; City of Chicago v. Francis, 262 id. 331;) or may be for the regulation of traffic, in which case they may or may not be void, depending on the reasonableness of the regulation. The ordinance in question shows on its face that it is clearly an ordinance limiting and regulating the speed at which motor vehicles may cross boulevards within the control of the park commissioners. The object and purpose of causing the vehicle to come to a full stop is to insure its proceeding across the boulevard at a rate of speed less than six miles an hour. It is clear that it has nothing to do with the regulation of traffic, for the reason that the amount or character of traffic on the boulevard is not taken into consideration. The ordinance requires vehicles to come to a full stop at every intersection, regardless of the amount or character of traffic using the boulevard at that particular point. Such a regulation would have no basis in reason where the boulevard passes through a sparsely populated section or where the traffic on the boulevard is unusually light. The primary and paramount object in establishing streets and highways is for the purpose of public travel, and the public and individuals can not be rightfully deprived of such use. This right to use the highways and streets for purposes of travel is not, however, an absolute and unqualified one. The right may be limited and controlled by the State, or by a municipality under its authority derived from the State, in the exercise of its police power, whenever necessary to provide for and promote the safety, peace, health, morals and general welfare of the people, and is subject to such reasonable and impartial regulations adopted pursuant to this power as are calculated to secure to the general public the largest practical benefit from the enjoyment of the easement and to provide for their safety while using it. A municipal ordinance of a regulatory nature in contravention of the natural rights of individuals, enacted under general charter powers, is not only required to be constitutional but it must be reasonable as well. The court before which it is brought must be able to see that it will tend to promote the public health, morals, safety or welfare, and that the means adopted are adapted to that end, and that it is impartial in operation and not unduly oppressive upon individuals. In determining what is reasonable much must depend upon the requirements of different localities, the density of population of the town in which the ordinance has been enacted, and the dangers and evils prevalent therein, and what would be reasonable in one place might be highly unreasonable in another. (19 R. C. L. 805, et seq.) To hold an ordinance of the character of the one in question valid as a regulation of traffic, the ordinance must show on its face that it is passed for the purpose of regulating traffic and that the traffic conditions requiring regulation are the basis of the regulations imposed. If an ordinance requiring all motor vehicles to stop before crossing a boulevard at every point where such boulevard intersects a street is valid as a traffic regulation, then an ordinance requiring a motor vehicle to stop at every street intersection in the city is a valid traffic regulation. Such an ordinance would not regulate traffic but would tend to congest traffic and would not promote the safety or the welfare of the public. Ordinances designed to regulate traffic must, therefore, make a reasonable classification of the points within the jurisdiction of a municipality where the regulation shall be effective, and to make the regulation reasonable it might be necessary to designate by proper signs the points where the regulation is required and indicate thereon the regulation provided by the ordinance. For instance, at such intersections where the mfinicipal authorities find the traffic of such a character that it is necessary to require vehicles to come to a full stop before proceeding onto the street or boulevard the point ought to be indicated by a “Stop \” sign. It follows from what we have said that it was error to receive in evidence the ordinance in question and to refuse the instructions directing a verdict of not guilty under the fourth and fifth additional counts. It is never good practice to permit the jury to take the pleadings in civil cases to the jury room on their retirement, (Elgin, Aurora and Southern Traction Co. v. Wilson, 217 Ill. 47; Bernier v. Illinois Central Railroad Co. 296 id. 464;) and in this case it was clearly error to permit the jury to take the declaration with them as long as it contained the fourth and fifth additional counts, which set out the ordinance in question. Inasmuch as the cause must be submitted to another jury under the other counts of the declaration we refrain from expressing any opinion on the evidence. The judgment is reversed and the cause is remanded to the superior court of Cook county for a new trial. Reversed and remanded.