Opinion
January 23, 1950.
WOLCOTT, J., sitting.
Clement C. Wood (of Hering, Morris, James and Hitchens) for plaintiffs.
Albert L. Simon for defendant, Vernon O. East.
William Prickett for defendant, Barry Kutchinsky.
Superior Court for New Castle County, Nos. 385 and 386, Civil Action, 1949.
These are two cases arising out of an automobile accident. The pertinent facts briefly are that the plaintiffs were riding as paying guests in the motor vehicle of the defendant, Kutchin sky on Route 13, proceeding on the northbound lane of the Dual Highway and overtaking the motor vehicle of the defendant, East. Both vehicles were approaching a point on the Dual Highway opposite the Rodney Hotel approximately two miles north of the Village of Blackbird. As the Kutchinsky car overtook and started to pass the East car, the East car pulled to the left to turn into the crossover leading to the Rodney Hotel located on the west side of the southbound lane of the dual highway, and the collision then occurred.
As a result of a pre-trial conference, the parties stipulated concerning the basic facts of the locale of the accident. From that stipulation, it appears that Route 13, at the point of collision, is a dual highway with a north and southbound lane; that at the point of collision there is a crossover through the separating grass plot connecting the northbound and southbound lanes of Route 13, and that no highway other than Route 13 joins at the point of collision.
The defendant, Kutchinsky, moved in both cases to strike from the complaints the averments contained in paragraph 2 (h), which read as follows: "(h) Defendant, Barry Kutchinsky, overtook and attempted to pass defendant, Vernon O. East's motor vehicle at an intersection of highways without permission of a traffic or police officer, in violation of paragraph 5630 (c), Revised Code of Delaware, 1935."
The motion to strike raises one point only for decision, viz., whether or not at the point of collision the existence of a crossover between the north and southbound lanes of the dual highway constitutes an intersection of highways within the meaning of paragraph 5630 (c), Revised Code of Delaware, 1935.
Section 5630 (c) provides in pertinent part as follows: "(c) The driver of a vehicle shall not overtake and pass any other vehicle * * * at any intersection of highways * *."
The phrase "intersection of highways" necessarily implies that there can be no intersection unless two or more "highways" join or intersect at the point in question. Accordingly, the question narrows itself to an inquiry as to whether or not the north and southbound lanes of a dual highway shall be considered as separate highways so that a crossing link between them only will create an intersection of highways within the meaning of the act. An intersection could be thus created if the two lanes of the dual highway were separate highways and if the crossover itself were still a third highway.
To constitute an intersection of highways, it is not necessary that the highways cross one another. It is sufficient if the highways meet at a point even though one of the meeting highways may end at the point of intersection. See Murphy v. Philadelphia Rapid Transit Co., 285 Pa. 99, 132 A. 194; Clarkson v. Ley, 106 N.J.L. 380, 148 A. 745.
46 Delaware Laws, Chapter 197, in effect defines a dual highway within the State of Delaware as a multiple lane highway divided by a curb, central dividing parkway, grass plot or other separation, and makes it unlawful for the operator of any vehicle to make a left turn on any dual highway "except, at designated crossovers constructed by the State Highway Department."
This statutory definition of a dual highway leaves little doubt in my mind that the Legislature intended that a highway separated into two lanes by a division of the type designated should be but one "highway" as that word is used in the Motor Vehicle Code, and that the crossovers used to go from one lane to the other are part and parcel of that highway. This conclusion is strengthened by the language of the court in Holland v. Cohn, 155 Pa. Super. 95, 38 A.2d 500.
The conclusion that Route 13 between Wilmington and Dover is one highway finds additional support in the fact that it has been held that the junction of the two lanes of the dual highway with a single highway creates only one intersection. City of Cincinnati v. Peacock, 72 Ohio App. 321, 51 N.E.2d 906; Blanton et al. v. Curry, 20 Cal.2d 793, 129 P.2d 1.
The dual highway being but a single highway, it follows that a crossover which commences at one lane and proceeds through the grass plot to end at the other lane is nothing more than an integral part of the dual highway itself, and is not a highway which would satisfy the requirement of plurality of Section 5630 (c). Of course, an entirely different situation results where the crossover is an extension of another highway which crosses over or joins the dual highway. In that instance, there would in fact be an "intersection of highways" but that is not the case at bar.
Accordingly, since no other public highway joined or crossed Route 13 at the point of collision, the statute prohibiting the overtaking and passing of a vehicle while approaching an intersection is inapplicable to the instant case and paragraph 2 (h) of the complaints will be struck.