Benson v. Wilmington City Railway Company

• Decision Date: 08 February 1910
• Citation: 24 Del. 202,75 A. 793
• Court: Delaware Superior Court
• Parties: AGUSTA M. BENSON v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation existing under the laws of the State of Delaware

75 A. 793

24 Del. 202

AGUSTA M. BENSON v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation existing under the laws of the State of Delaware

Superior Court of Delaware, New Castle County

February 8, 1910

Superior Court, New Castle County, January Term, 1910.

ACTION ON THE CASE (No. 122, September Term 1909), to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant in causing the car on which the plaintiff was a passenger to be suddenly moved forward with a jolt or jar, thereby throwing the plaintiff from the running-board of the car while attempting to alight therefrom.

At the trial the plaintiff was permitted to testify, against objections and exceptions that her husband was blind and at the time in a hospital--and that she paid for the medicine which she got from the doctor.

Verdict for defendant.

Julian C. Walker for plaintiff.

Walter H. Hayes and H. H. Ward for defendant.

PENNEWILL C. J., and WOOLLEY and HASTINGS, J. J., sitting.

OPINION

PENNEWILL, C. J., charging the jury:

Gentlemen of the jury:--This is an action brought by the plaintiff against the defendant to recover damages for personal injuries alleged to have been caused by the negligence of the defendant company. The plaintiff contends that on July 7th, 1909, she was a passenger on one of the cars of the defendant, and that by and through the negligence and carelessness of the defendant in suddenly starting up its said car, upon which the said plaintiff was then and there a passenger, while she was in the act of alighting from the said car at or near to Fifteenth and Claymont streets in this city, she was violently hurled or cast upon the street, and was badly hurt, wounded, injured, etc.

The defendant contends that it was guilty of no negligence whatever; that at the time the plaintiff attempted to alight from the car it was not suddenly started, but was entirely at rest; that it did not start until after the injury had happened, and that the plaintiff's falling, or being thrown, from the car was due solely to her own negligence.

It is admitted by the parties hereto:

That the Wilmington City Railway Company, the defendant in the above stated case, at the time of the happening of the alleged injuries, was and still is a common carrier, engaged in the business of transporting passengers for hire, operating certain lines of street railway in the City of Wilmington, New Castle County and State of Delaware, by means and use of electricity, and, among other streets in said City, on, along, over and upon a certain street called Claymont Street, at or near Fifteenth Street. It is also admitted that, at the time of said alleged injuries, the said plaintiff was a passenger of the said defendant company for hire, and that the car in which the said plaintiff was riding, as aforesaid, was being run and operated by the said defendant. Also that the defendant was lawfully and rightfully on the said street.

The basis and gist of this action is the negligence of the defendant. Negligence has often 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 use under similar circumstances. It is for the jury to determine from the evidence whether there was any negligence that caused the accident, and if there was, whether it was the negligence of the defendant. To entitle the plaintiff to recover at all it must have been shown to the satisfaction of the jury, by a preponderance of the evidence, that the negligence which caused the injuries complained of, if any there was, was the fault of the defendant company; and the jury must be further so satisfied, that the negligence of the defendant, if any there was, which caused the plaintiff's injuries, was the negligence described in the plaintiff's declaration, viz.: the sudden starting up of the car while the plaintiff was in the act of alighting therefrom. Such negligence is not to be presumed, but must be proved, and the burden of proof is upon the plaintiff.

If the defendant was guilty of no negligence the plaintiff cannot recover, no matter what injuries the plaintiff may have received,...