Adams v. Wilmington and New Castle Electric Railway Co.

• Decision Date: 02 June 1902
• Citation: 19 Del. 512,52 A. 264
• Court: Delaware Superior Court
• Parties: HORACE P. ADAMS v. WILMINGTON AND NEW CASTLE ELECTRIC RAILWAY COMPANY, a corporation of the State of Delaware

52 A. 264

19 Del. 512

HORACE P. ADAMS v. WILMINGTON AND NEW CASTLE ELECTRIC RAILWAY COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

June 2, 1902

Superior Court, New Castle County, May Term, 1902.

CASE (No. 27, November Term 1900.)

Verdict for plaintiff for $ 500.

Walter H. Hayes for plaintiff.

Saulsbury Ponder and Ourtis for defendant.

LORE C. J., and GRUBB and PENNEWILL, J. J., sitting.

OPINION

PENNEWILL, J., charging the jury:

Gentlemen of the jury:--In this case the plaintiff, Horace P. Adams, seeks to recover from the Wilmington and New Castle Electric Railway Company, the defendant, damages for personal injuries to himself, as well as for the loss of his horse, wagon and harness--all alleged to have been caused by the negligence of said company on the second day of July, 1900, resulting in a collision on the public highway, along and upon which its tracks are laid, at or near where the same is intersected by a road known as "Pyle's Lane", in this county.

The plaintiff charges that the defendant was negligent, first, in running its car, which caused the injuries, at a high and dangerous rate of speed; and second, in running said car without ringing a gong or bell, or giving any warning.

The defendant company claims that it was not guilty of any negligence that caused the injuries to the plaintiff, but on the contrary, exercised all reasonable and proper care to avoid the accident; and moreover, insists that the accident was caused by the plaintiff's own negligence.

The action is based, as you observe, on negligence; and it is proper that we should explain to you what negligence in legal contemplation is. It has been defined by this Court to be the want of ordinary care; that is, the want of such care as a reasonably prudent and careful man would exercise under similar circumstances. What constitutes negligence is a question of law for the Court, but, whether negligence exists in the particular case is a question of fact for the determination of the jury. Your province, therefore is to ascertain whether the injuries complained of were, or were not, cansed by the negligence of the defendant. The plaintiff's right to recover is founded upon the negligence of the defendant, and the burden is upon the plaintiff to show such negligence to your satisfaction by a preponderance, that is by the weight, of the evidence, or he cannot recover.

Negligence is never presumed, but must always be proved, in order that the plaintiff may be entitled to recover.

The defendant had a right to use the public highway, at the place and time of the accident, in common with other travelers and persons who saw fit to use it in vehicles drawn by horses, or otherwise. The public, as well as the defendant company, were entitled to use said highway. The electric cars of necessity could use only those parts of it covered by their tracks, inasmuch as such cars move only upon their tracks within fixed limits. Within those lines the right of the company is superior to that of other users, and must not be unnecessarily interfered with or obstructed.

Brown vs. W. C. Ry. Co., 17 Del. 332, 1 Penne. 332, 40 A. 936; Price vs. Charles Warner Co., 17 Del. 462, 1 Penne. 462, 42 A. 699.

In using the highway all persons are bound to the exercise of reasonable care to prevent collisions and accidents. Such care must be in proportion to the danger of the peculiar risks in each case. It is the duty of the company to provide competent and careful motormen and servants; to see that they use reasonable care in operating the cars; that the cars move at a reasonable rate of speed; that they slow up, or stop if need be, where danger is imminent and could, by the exercise of reasonable care, be seen or known in time to prevent accident; and that proper warning be given of the approach of the car at a crossing on the public highway.

There is a like duty of exercising reasonable care on the part of the traveler. The company and the traveler are both required to use such reasonable care as the circumstances of the case demand; an increase of care on the part of both being required where there is an increase of danger. The right of each must be exercised in a reasonable and careful manner, so as not unreasonably to abridge or interfere with the right of the other.

As was said by the Court in the case of Brown vs. Wilmington City Railway Company:

"We are not prepared to lay down any absolute rule as to what precise acts of precaution are necessary to be done or left undone by persons who may have need to cross electric railways. Such acts necessarily must depend upon the circumstances of each particular case. The degree of care differs in different cases. Greater care is necessary in crossing a road where the cars run at a high rate of speed and close together, than where they run at less speed and remote from one...