
    PLEADING ORDINANCES AS TO RIGHT OF WAY AND SPEED.
    Common Pleas Court of Montgomery County.
    Arthur Green v. The Dayton Street Railway Company.
    Decided, April 7, 1911.
    
      Pleading — Right-Of-Way of Pire Department as Against Street Traffic —Pleading of Ordinance Relating Thereto — Speed Ordinance Distinguished — Such an Ordinance Should Not he Pleaded.
    
    1. An ordinance giving to the fire department of a municipality the right-of-way on streets, street car crossings and railway crossings while running to fires may be pleaded in an action for negligence of a street or steam railway company resulting in injury to a member of the fire department while running with his company to a fire.
    2. But a speed ordinance, inasmuch as it does not declare a substantive right of the injured party but only evidences the enactment of the legislative body with reference to speed, should not be pleaded.
    Brown, J.; Snediker, J., and Martin, J., concur.
   Decision as to pleading ordinances as to right-of-way and speed. There having been indicated recently a misunderstanding among different members of the bar as to the rulings of this court in the matter of pleading in accident cases of two ordinances, the one giving the right-of-way to the fire department and the other as to the speed of street cars or railway trains, the three judges of this court, upon consultation, have agreed upon the following decision which will be adhered to by this court unless reversed by authority.

We hold that if the legislative body of a municipality (in this city the city council), having been delegated by constitutional authority, to-wit, the Legislature, with exclusive control over streets and alleys and the traffic thereon, pursuant to such authority, gives any department of the city (in this case the fire department) the right-of-way on the streets, street car crossings and railway crossings while running.to fires,' as was ordained by council by an ordinance passed January 22, 1875 (General Ordinances of Dayton, page 534), it is proper to plead such, ordinance in cases where suit is brought for the negligence of a street car or steam railway resulting in the injury of one of the members of such fire department. This is permitted as an averment of one of the facts surrounding the accident fixing a right of the plaintiff at the time, the -violation of which under proper conditions may ■entitle him to recovery.

This court has repeatedly held and still holds that the pleading of a speed ordinance is not proper. This we do for the reason that a speed ordinance is simply a regulation of the company to w.hieh it relates and not a declared substantive right of the injured party. It does not fix the latter’s status but only evidences the solemn enactment of the legislative body on the subject. Our Supreme Court regards the proof of its violation as no evidence of negligence per se, but only as some evidence bearing upon the question to be so considered with all other evidence in the'ease.  