(dissenting in part).
I regret that I am unable to agree with the conclusion reached by my associates with respect to the constitutionality of Chapter 23 of Volume 38, Laws of Delaware (Section 128 A of the Motor Vehicle Code), but, in all other respects, I agree with the conclusion reached by them.
The act in question provides:
“Section 1. That, it shall be unlawful for any person operating a motor truck or motor bus, upon the highways of the State of Delaware to stop said motor truck or motor bus, on said highway upon which it is being operated, for more than three minutes during the *292time from one-half hour after sunset until one-half hour before sunrise, unless such person places a lighted torch or a lighted lantern containing red glass, not more than one foot from the edge of the concrete or traffic lane in the direction in which said motor truck or motor bus is being operated, and not more than one hundred and fifty feet, nor less than one hundred feet, back from the rear of said motor truck or motor bus; provided, nevertheless, that nothing m this Act shall apply to any person operating a motor bus while stopping for the purpose of taking on or discharging any passenger.”
The declarations demurred to are based on negligence. In the Hartley cases they, among other things, allege, in substance, that on the twenty-eighth day of November, 1934, at about 6:30 in the evening, an International truck, with a semi-trailer attached to it, belonging to the defendant, was negligently parked by its agent on a public highway of this state for more than three minutes, without having complied with the provisions of the above statute, requiring him to place a lighted torch or a lighted lantern, containing red glass, a certain distance in the rear of it; and that by reason of that fact the plaintiff’s husband, Thomas Hartley, who was a passenger in an automobile driven by another person, was unable to see the defendant’s truck and the trailer attached thereto, so that the. automobile in which he was then riding collided with the rear of that truck, and Hartley was killed.
The declaration in the Zink cases are similar.
In support of its demurrer, the defendant, among other things, contends that this statute violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States, and is, therefore, void. That amendment provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
*293In Patsone v. Pennsylvania, 232 U. S. 138, 34 S. Ct. 281, 282, 58 L. Ed. 539, the question To be determined was whether a legislative Act of the State of Pennsylvania, which made it unlawful for unnaturalized resident aliens to shoot wild game in that State, was valid, or whether the classification adopted was reasonable and, therefore, violated the Fourteenth Amendment to the Federal Constitution.
The Court said: “The discrimination undoubtedly presents a more difficult question. But we start with the general consideration that a state may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter. The question is a practical one, dependent upon experience. The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class. It is not enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named. * * * The state ‘may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses.’ * * *
“The question therefore narrows itself to whether this court can say that the legislature of Pennsylvania was not warranted in assuming as its premise for the law that resident unnaturalized aliens were the peculiar source of the evil that it desired to prevent. * * *
“Obviously the question, so stated, is one of local experience, on which this court ought to be very slow to declare that the state legislature was wrong in its facts. Adams v. Milwaukee, 228 U. S. 572, 583, 33 S. Ct. 610, 57 L. Ed. 971, 977. If we might trust popular speech in some *294states it was right; — but it is enough that this court has no knowledge of the local conditions as to be able to say that it was manifestly wrong.”
The general principles stated in this case have been repeatedly approved in subsequent cases.
In Miller v. Wilson, Sheriff, 236 U. S. 373, 35 S. Ct. 342, 344, 59 L. Ed. 628, L. R. A. 1915 F, 829, the court held that the California eight hour labor law for women was valid, though it excepted from its provisions persons employed in harvesting, curing, canning or drying any variety of fruit or vegetables. In discussing the question, it said: “Dealing with practical exigencies, the legislature may be guided by experience. Patsone v. Pennsylvania, 232 U. S. 138, 144, 34 S. Ct. 281, 58 L. Ed. 539, 543. It is free to recognize degrees of harm, and it may .confine its restrictions to those classes of cases where the need is deemed to be clearest. As has been said, it may ‘proceed cautiously, step by step,’ and ‘if an evil is specially experienced in a particular branch of business’ it is not necessary that the prohibition ‘should be couched in all-embracing terms.’ * * * If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.”
In Whitney v. California, 274 U. S. 357, 47 S. Ct. 641, 646, 71 L. Ed. 1095, which involved the validity of an act relating to criminal syndicalism in certain specified cases only, the court said: “A statute does not violate the equal protection clause merely because it is not all-embracing. * * * A state may properly direct its legislation against what it deems an existing evil without covering the whole field of possible abuses. Patsone v. Pennsylvania, 232 U. S. 138, 144, 34 S. Ct. 281, 58 L. Ed. 539; Farmers’ & Merchants’ Bank v. Federal Reserve Bank, 262 U. S. 649, 661, 43 S. Ct. 651, 67 L. Ed. 1157, 30 A. L. R. 635; James-Dickin*295son Farm Mortg. Co. v. Harry, supra [273 U. S. 119, 47 S. Ct. 308, 71 L. Ed. 569]. The statute must be presumed to be aimed at an evil where experience shows it to be most felt, and to be deemed by the Legislature coextensive with the practical need; and is not to be overthrown merely because other instances may be suggested to which also it might have been applied; that being a matter for the Legislature to determine unless the case is very clear. * * * And it is not open to objection unless the classification is so lacking in any adequate or reasonable basis as to preclude the assumption that it was made in the exercise of the legislative judgment and discretion.”
In Sproles v. Binford, Sheriff, 286 U. S. 374, 52 S. Ct. 581, 585, 76 L. Ed. 1167, the court held that a legislative act, apparently intended for the protection of the public highways of the State of Texas, did not violate the Fourteenth Amendment to the Constitution of the United States. The act prescribed the width, length and weight of motor vehicles that could be operated on such highways but excepted from its provisions implements of husbandry, road machinery and vehicles used in transporting property from its point of origin to the nearest practicable common carrier loading depot.
The provisions as to weight applied to commercial vehicles, but did not apply to buses.
The Court said: “When the subject lies within the police power of the state, debatable questions as to reasonableness are not for the courts but for the Legislature, which is entitled to form its own judgment, and its action within its range of discretion cannot be set aside because compliance is burdensome.”
The Court, also, said: “This is not a case of a denial of the use of the highways to one class of citizens as opposed to another or of limitations having no appropriate relation *296to highway protection. It is not a case of an arbitrary discrimination between the products carried, as in the case of Smith v. Cahoon, 283 U. S. 553, 567, 51 S. Ct. 582, 75 L. Ed. 1264.”
The same court, in commenting on the fact that buses, though fully as heavy when loaded as other motor vehicles referred to in the act, were not included • within its provisions, further said: “Appellants press the contention that * * * the damage to the highways is as great from a load of persons as from a load of freight, and that the combined weight of vehicles and load in the case of passenger buses is greater than the combined weight of vehicles and load carrying freight where the net load is limited to 7,000 pounds. These considerations would be controlling if there were no other reasonable basis for classification than the mere matter of weight. But in passing upon the question of the constitutional power of the state to fashion its regulations for the use of the highways it maintains, we cannot ignore the fact that the state has a distinct public interest in the transportation of persons. We do not think that it can be said that persons and property, even with respect to their transportation for hire, must be treated as falling within the same category for purposes of highway regulation. The peculiar importance to the state of conveniences for the transportation of persons in order to provide its communities with resources both of employment and of recreation, the special dependence of varied social and educational interests upon freedom of intercourse through safe and accessible facilities for such transportation, are sufficient to support a classification of passenger traffic as distinct from freight.”
Silver v. Silver, 280 U. S. 117, 50 S. Ct. 57, 58, 74 L. Ed. 221, 65 A. L. R. 939, involved the constitutionality of the Connecticut statute, which prohibited an action for negligence by a gratuitous passenger in an automobile *297against the driver of such automobile. The court, after pointing out that the use of automobiles as an instrument of transportation was peculiarly the subject of regulation in the statute, and that it could not be assumed that there were no evils to be corrected by it said: “We are not unaware of the increasing frequency of litigation in which passengers carried gratuitously in automobiles, often casual guests or licensees, have sought the recovery of large sums for injuries alleged to have been due to negligent operation. * * * Whether there has been a serious increase in the evils of vexatious litigation in this class of cases, where the carriage is by automobile, is for legislative determination, and, if found, may well be the basis of legislative action further restricting the liability. Its wisdom, is not the concern of courts. * * * In this day of almost universal highway transportation by motorcar, we cannot say that abuses originating in the multiplicity of suits growing out of the gratuitous carriage of passengers in automobiles do not present so conspicuous an example of what the Legislature may regard as an evil, as to justify legislation aimed at it, even though some abuses may not be hit. * * *It is enough that the present statute strikes at the evil where it is felt and reaches the class of cases where it most frequently occurs.”
Precisely the same general principles were applied in sustaining the legislative acts before .the court in People of State of New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 49 S. Ct. 61, 73 L. Ed. 184, 62 A. L. R. 785, and in Keokee Consol. Coke Co. v. Taylor, 234 U. S. 224, 34 S. Ct. 856, 857, 58 L. Ed. 1288. In the first of these cases the statute required associations having an oath-bound membership to file sworn copies of their constitutions, oaths, etc., but excepted Masonic societies, Odd Fellows, and Knights of Columbus. In the latter case, the statute forbade any person or company engaged in mining coal or ore, or manufac*298taring iron or steel, to pay for labor by orders, unless redeemable in cash.
In this case, after stating the general rules applicable, and citing, among other cases, Patsone v. Pennsylvania, 232 U. S. 138, 34 S. Ct. 281, 58 L. Ed. 539, supra, the court, also, said:
“The suggestion that others besides mining and manufacturing companies may keep shops and pay their workmen with orders on themselves for merchandise is nqt enough to overthrow a law that must be presumed to be deemed by the legislature coextensive with the practical need.”
Such are the well settled general principles governing cases of this character. In fact, this is not disputed, but the difficulty is to apply these principles to the facts of a particular case, and from those facts to determine whether the particular classification adopted by the legislature is reasonable, or so clearly arbitrary and unreasonable as to rebut the usual presumptions in support of the validity of the action taken by it. The precautionary measures provided for in the act before us do not apply to motor vehicles of the pleasure type. By reason of that fact, the majority of the court have reached the conclusion that as that act is intended for the protection of other travelers on the highway, it is unreasonable to require those precautions to be taken by trucks and buses alone, particularly as there are no limitations or other provisions relating to size or weight.
It must be conceded that almost any kind of a vehicle, whether motor or otherwise, parked or left standing on a public highway at night, may be a possible source of danger to other persons traveling on that highway, though such parked vehicle carries the usual lights required by other provisions of the motor vehicle act. This, would be as true of a timber or so-called log wagon, or other heavy wagon *299or cart of the same general nature, and whether such wagon or cart were loaded or not, as of any motor vehicle other than a truck or bus; but it could not be contended that the exclusion from this, act of vehicles of that type makes it invalid.
As was pointed out in the above cases, a legislative act to be valid need not be all embracing; if the abuses or dangers sought to be met are, or even may be, characteristic in a peculiar degree of the particular kinds of motor vehicles covered by it, the act is valid though other possible sources of danger are not included in the classification adopted.
The legislature can proceed cautiously step by step, and the clear presumption is that an act enacted by it is coextensive with the real existing practical need; that it is aimed at dangers where experience shows action to be most needed. In other words, if the reasonableness of the legislative classification adopted is even fairly debatable, the legislative judgment will be allowed to control, and the act will be valid. In re Ceresini, 8 W. W. Harr. (38 Del.) 134, 189 A. 443; Sproles v. Binford, 286 U. S. 374, 52 S. Ct. 581, 76 L. Ed. 1167.
Bearing these principles in mind, can we say that the classification adopted by the act before us is so clearly and palpably unreasonable because it does not include ordinary pleasure vehicles, as well as motor trucks and buses, that all presumption in favor of its legality are overthrown ?
The statute that is being questioned relates to public highways in general, and is not confined to a particular class of highways, such as paved roads.
A truck is “a wheeled vehicle, of which there are many kinds, used for moving or transporting burdens” (Cent. Dict.) ; “a strong vehicle for transporting freight, merchandise and other heavy articles” (65 C. J. 178; Stand. *300Dict.; Hemlock, etc., Tire Co. v. McLemore, 151 Tenn. 99, 268 S. W. 116) ; “any strong, heavy cart, or wagon, horse-drawn or self propelled, for heavy hauling.” (Web. Inter. Dict.).
Distinctly as a motor vehicle, naturally a truck is still defined in somewhat the same manner. It is “an automoblie for transporting heavy loads” (65 C. J. 175; New Cent. Dict.; Paltani v. Sentinel Life Ins. Co., 121 Neb. 447, 237 N. W. 392) ; “a large automotive vehicle for freight transportation (Web. Int. Dict.) ; “a wheeled vehicle for carrying heavy loads; especially a large motor vehicle for such purposes” (The Winst. Univ. Ref. Libr.).
The inclusion of motor buses in the act in question would, also, seem to strengthen the conclusion that it was intended to apply to a class of vehicles usually typified in the public mind by a certain degree of size and weight. The word “bus” is derived from, “omnibus,” and when a motor vehicle of that type is referred to, means a motor coach (Web. Inter. Dict.; Dent. Dict.) ; and because of the derivation of the word such a coach would naturally signify a vehicle for the transportation of a number of persons.
There is nothing in the motor vehicle act that is inconsistent with these definitions, and the words “motor truck,” as therein used, therefore, seemingly refer to a vehicle having both sufficient size and weight for the transportation of freight or heavy loads of some character.
Depending on their intended uses, both trucks and buses naturally vary in size and weight. Some of them may be little or no larger or heavier than other motor vehicles of the pleasure type, but, as I view it, that does not necessarily affect the question involved.
In the conception of the public, as well as in actuality, *301there is a difference between a truck and a motorized pleasure vehicle not intended to carry freight or other heavy loads.
As I have already pointed out, there is, also, a distinct difference between a motor bus and an automobile intended for mere pleasure purposes. Nor am I prepared to say that the legislature was clearly wrong in taking the position that experience had shown that trucks and buses parked on the highway at night are a greater source of danger to the public than ordinary motor vehicles.
My conclusion, therefore, is that the classification adopted by the act before us is not so clearly unreasonable that it is void.
As I read that case, Smith v. Cahoon, 283 U. S. 553, 51 S. Ct. 582, 587, 75 L. Ed. 1264, is not inconsistent with this conclusion, as our statute includes all trucks parked on the public highways at night, and is not confined to trucks merely loaded with specified products.
In that case, the statute required all public or private carriers for hire, using the public highways of the State of Florida, to procure a certificate of public convenience, and to give a bond or pledge an insurance policy for the protection of public safety and property rights. By its language that statute was not only restricted to carriers for hire using the public highways, but it, also, excepted from its provisions corporations or persons engaged exclusively in transporting children to or from school, or any company engaged exclusively in transporting agricultural or dairy products, or fish and oysters, from the point of production, to the nearest shipping point for the primary market. The court said: “In determining what is within the range of discretion and what is arbitrary, regard must be had to the particular subject of the state’s action. In the present instance, the regulation as to the giving of a bond or insur*302anee policy to protect the public generally, in order to be sustained, must be deemed to relate to the public safety. This is a matter of grave concern as the highways become increasingly crowded with motor vehicles, and we entertain no doubt of the power of the state to insist upon suitable protection for the public against injuries through the'operations on its highivays of carriers for hire, ivheiher they are common carriers or private carriers.”
While no such question is before us, the court, also, said: “But, in establishing such a regulation, there does not appear to be the slightest justification for making a distinction between those who carry for hire farm products, or milk or butter, or fish or oysters, and those who carry for hire bread or sugar, or tea or coffee, or groceries in general, or other useful commodities.”
Consumers’ Co. v. Chicago, 298 Ill. 339, 131 N. E. 628, also, involved a very different state of facts. The city ordinance, which was held to be unreasonable and, therefore, void, required all motor vehicles intended for transportation of freight or merchandise, and having a capacity of 1500 lbs. or more, to be equipped with fenders or bumpers in front for the protection of pedestrians.
It seems unnecessary for me to consider any of the . other cases cited by the defendant.
For the reasons above given, I think the demurrer to the fifth count of the declaration in each case should be overruled.