Baker v. Reid

• Decision Date: 12 September 1947
• Docket Number: 2
• Citation: 44 Del. 112,57 A.2d 103
• Court: Supreme Court of Delaware
• Parties: ALFRED BAKER, Defendant Below, Plaintiff in Error, v. MARGARET E. REID, Widow of James H. Reid, Plaintiff Below, Defendant in Error

57 A.2d 103

ALFRED BAKER, Defendant Below, Plaintiff in Error, v. MARGARET E. REID, Widow of James H. Reid, Plaintiff Below, Defendant in Error

44 Del. 112

No. 2

Supreme Court of Delaware

September 12, 1947

William Prickett for defendant below, plaintiff in error.

Phillip Cohen for plaintiff below, defendant in error.

HARRINGTON Ch., RICHARDS, C. J., and PEARSON, J., sitting.

OPINION

PEARSON, J.

Plaintiff brought this action for damages for injuries to her husband which resulted in his death, asserting negligence on the part of defendant. After a trial, the jury found for plaintiff. The court heard and denied a motion for new trial, and judgment was entered. Defendant obtained the issuance of a writ of error out of this court.

On the evening of March 27, 1943, the decedent was driving an automobile south on a highway approaching Farmington, Delaware. The left front tire became flat, and he stopped to change it. After he and a companion, Bailey, had unsuccessfully attempted to jack up the car on the west shoulder of the road, he moved the car so that the left front wheel was on the paved portion of the road, with the other wheels on the shoulder. He hailed a car which was proceeding south and borrowed a tire wrench. After parking that car on the shoulder south of decedent's car, its two occupants assisted decedent and Bailey in changing the tire. When this was nearly accomplished, and while decedent was crouching, tightening the lugs on the wheel, defendant approached from the north, driving a truck. Before this, other cars had passed, going south. It was dark, raining or drizzling, and the paved portion of the road was black. The left front of decedent's car and decedent were on the roadway, leaving an unobstructed width of the road there of less than 20 feet. Decedent wore dark clothing. The headlights of decedent's car were on, and were pointed diagonally across the road, and two rear lights were lighted. Defendant's headlights were also on. He was travelling about 35 miles per hour and saw the rear lights of decedent's car from 500 feet away. He continued on without decreasing his speed. He testified that he did not see decedent and did not even see that a part of decedent's car was on the roadway until he was 10 to 15 feet from it. He then, for the first time, took his foot off the accelerator. He testified that he turned the truck sharp to the left; but it struck decedent, and the right front part of the truck struck the left front side of decedent's car. Decedent was carried forward some distance where he fell to the road, severely injured (from which he subsequently died). During this time, another car was approaching from the south. The evidence of the distance of this approaching car from the decedent's car at the time of the collision varies from 75 feet to 200 feet. After the collision, the truck came to a stop some distance south of decedent's car.

There is evidence that just before the collision, Bailey was standing on the road to the north of decedent and alongside the car; and another man was standing to the south of him. Bailey was wearing a tan overcoat. He testified that he saw the lights of defendant's truck approaching from about a quarter of a mile away, and that when the truck was very close to him, 15 or 20 feet away, he noticed that "it wasn't slowing up or getting over any" and he flashed a flashlight and shouted, "Look out"; but the truck "kept right on coming down." Bailey and the other man got out of the way in time to avoid being hit.

The defendant assigns as error that the court declined to direct a verdict for defendant; that it refused the instructions to the jury requested by the defendant; and that it charged the jury in the language of the charge actually given.

Before considering the assignments separately, we shall first dispose of a point on which defendant relied heavily before the Superior Court upon his motion for a new trial, as well as in his argument before this court. He urges that certain rulings of the Superior Court on the pleadings had the effect of determining as the law of this case that defendant owed no duty to decedent until Bailey's flashlight signal was given. Plaintiff filed an original and later an amended declaration. Aside from the differences we shall point out, both declarations may, for present purposes, be treated as substantially similar in content. Each narrated circumstances surrounding the collision. In the original declaration, it was averred that the headlights of the car approaching from the south temporarily blinded defendant as he approached decedent's car. These allegations were omitted in the amended declaration. In the original declaration, there was no mention of Bailey's flashlight signal; but the giving of this signal was averred in the amended declaration. The original declaration charges negligence in four counts: that the defendant violated a duty to the decedent to stop his truck when blinded by the headlights; that he violated a duty to reduce the speed of his truck when temporarily, partially blinded by the approaching lights; that he violated a duty to operate the truck at a reasonable and proper rate of speed under the existing conditions of poor visibility; and that he violated a duty to keep a proper lookout. Defendant demurred to these counts and assigned the following reasons:

"1. In first count, the plaintiff does not allege that the defendant had the opportunity to slow down or stop in time to have avoided the alleged accident.

"2. In second count the plaintiff does not allege that the defendant had the opportunity to reduce the speed of said defendant's truck in time to have avoided the alleged accident.

"3. In third count the plaintiff does not allege that the defendant saw, or could have seen, the plaintiff on said highway in time to have avoided the alleged accident if the defendant had been driving at a reasonable rate of speed.

"4. In fourth count the plaintiff does not allege that the defendant saw, or could have seen, the plaintiff on said highway in time to have avoided the alleged accident."

The court sustained the demurrer without written opinion. Plaintiff then filed her amended declaration, charging negligence in the following respects:

1. Defendant failed to keep a proper lookout so as to avoid striking decedent and colliding with his car "when the said defendant knew or by the exercise of reasonable diligence should have known that" the car and decedent "were in a dangerous position upon said highway."

2. Defendant operated his truck at an excessive rate of speed without having regard to the use of a portion of the highway by decedent "of which the defendant had notice or should have had notice by reason of the flashing of the light held by the said Leonard Bailey".

3. Defendant failed to keep his truck under proper control so that it could be stopped "after having full and ample opportunity to do so when he saw or with the exercise of due care and caution should have seen that a collision with" decedent's car and decedent standing beside the car "was imminent after having had full and ample opportunity to do so when he knew or by the exercise of reasonable care and caution should have known that" the car and decedent "were in a dangerous position upon the highway".

4. Defendant failed to stop, turn, apply his brakes, slacken the speed or divert the course of his truck or otherwise attempt to avoid a collision with the car or avoid striking decedent, when he "saw or by the exercise of reasonable care and caution should have seen that a collision was imminent after having had full and ample opportunity to do so when he knew or by the exercise of reasonable diligence should have known that" decedent's car and decedent "were in a dangerous position upon the highway".

Defendant demurred to the amended declaration, stating as reasons:

"1. The first count does not allege that defendant saw or could have seen the deceased in time to have avoided colliding with him.

"2. The second count does not allege that defendant saw or could have seen the deceased in time to have avoided colliding with him."

The demurrer was overruled and, at the same time, the court denied defendant's motion to strike certain allegations as immaterial.

Defendant argues that:

"The action of the Superior Court in sustaining the demurrer to the first declaration had the effect of holding that Reid was a trespasser on the highway and that therefore the defendant owed him no duty, except not to injure him maliciously, until the defendant had knowledge, actual or constructive, of Reid's dangerous position and that the tail lights off, and the head lights shining diagonally across, the highway, did not furnish that warning. * * *

"* * * The effect of overruling the demurrer [to the amended declaration] and motions was to hold that the defendant owed a duty of care as a result of, not tail or head lights, but after, and as a result of, Bailey's warning and that the allegations about Bailey's warning were material and had to be proved as alleged." (Emphasis supplied.)

We think the Superior Court's rulings do not support the inference that Bailey's warning alone gave rise to a duty on the part of defendant, or that defendant owed no duty to the decedent until Bailey's warning was given. The substance of defendant's grounds of demurrer to the original declaration is that it appeared from the allegations that decedent was negligent in being where he was at the time of the collision and that the doctrine of contributory negligence was applicable so as to prevent a recovery, since there were no allegations sufficient to bring the case within the doctrine of Last Clear Chance. It does not appear that the demurrer was...