On certiorari to summary conviction of having violated the Traffic act.
For the prosecutrix, Pitney, Hardin & Skinner (H. Preston Coursen, of the New York bar, on the brief).
For the defendants, William A. Wachenfeld, prosecutor of the pleas, and Joseph E. Conlon, assistant prosecutor.
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
PARKER, J. Prosecutrix was convicted in a summary proceeding in the Recorder's Court of the township of Millburn, in Essex county, of violating a speed regulation contained in the Traffic act, now R.S. 39:4-98, the pertinent language of which is as follows: "Subject to the provisions of section 39:4-96 of this title * * *, it shall be prima facie lawful for the driver of a vehicle to drive it at a speed not exceeding the following: * * * f. Twenty miles an hour in a residence district * * *." The following section, 39:4-99 provides that "it shall be prima facie unlawful for a person to exceed any of the foregoing speed limitations."
The following facts are undisputed: Prosecutrix was driving her car on a road called Hobart avenue, in the Short Hills district of Millburn, at a speed of thirty-two miles an hour. She was driving carefully so far as appears, and on a roadway that was then practically clear. The locality was zoned as "residential." She was stopped by an officer, who served a Police Court summons, and following a trial the court found her guilty of violating the statute, and imposed a nominal fine and $1 costs. There was an appeal to the Court of Special Sessions and a trial de novo, pursuant to the statute as amended in Pamph. L. 1933 (at pp. 198, 200), and a conviction again in that court. To review this conviction the present writ was allowed.
The case is submitted on briefs without oral argument. Nine "reasons" were filed, but none is specifically quoted in the brief for prosecutrix. The argument revolves, however, around two points, which are included in the reasons. The first point is that the proof did not show that the occurrence was "in a residence district," but rather showed the contrary,
and that the complaint should have been dismissed on that ground: and the second point is that the phrase "prima facie unlawful" connotes immunity from prosecution under the act if the evidence shows that notwithstanding the twentymile limit, due care was exercised in the act of driving.
In the first point we find little or no difficulty. As pointed out in the brief, the statute itself defines "residence district" as "the territory contiguous to a highway not comprising a business district when the frontage on the highway for a distance of 300 feet or more is mainly occupied by dwellings, or by dwellings and buildings in use for business." The evidence showed without contradiction that the section of Hobart avenue comprising the locus in quo, and shown on the map that was put in evidence, is about one-third of a mile long, somewhat sparsely built upon, with a total of ten private residences, and no business buildings of any kind; apparently it would be colloquially known as a residential section, and actually it was so zoned. It is argued, however, that the words "mainly occupied" in the act mean that over fifty per cent. of the total frontage should be actually covered by buildings; but we are unable to take that view of the matter. If it were to prevail, it would mean that where a locality had been laid out into a series of large and handsome places, with average frontage of say 200 feet each, one house on each lot, it could not be classed as "residential" in the intendment of the statute, unless more than fifty per cent. of the total frontage was occupied by residences. We think the evidence satisfactorily showed a residential status in the intendment of the statute.
The disposition of the second point turns on the answer to the question whether by using the phrase "prima facie unlawful" in connection with exceeding a speed of so many miles an hour under certain conditions, the legislature intended to open the door to driving at any such speed as a driver deems, and a court on the evidence finds, "reasonable and proper, having due regard to the traffic" and other conditions. R.S. 39:4-97. Pushed to its logical result, this would mean that ...