Boudwin v. Wilmington City Railway Company

• Decision Date: 18 June 1903
• Citation: 60 A. 865,20 Del. 381
• Court: Delaware Superior Court
• Parties: CHARLOTTE M. BOUDWIN v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware

60 A. 865

20 Del. 381

CHARLOTTE M. BOUDWIN v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

June 18, 1903

Superior Court, New Castle County, May Term, 1903.

ACTION ON THE CASE, to recover damages for personal injuries to nervous system.

The facts appear in the charge of the Court.

Verdict for defendant.

John H Rodney for plaintiff.

Walter H. Hayes for defendant.

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

OPINION

PENNEWILI, J. charging the jury:

Gentlemen of the jury:--In this action Charlotte M. Boudwin, the plaintiff, seeks to recover from the Wilmington City Railway Company, the defendant, damages for injury to her nervous system, and pain and suffering, alleged to have been caused by the negligence of the defendant company, on August 8, 1901, at Eighth and Poplar streets, in this city, in running one of its cars at an excessive rate of speed and without giving any proper warning of its approach by ringing the bell or otherwise; by reason of which said negligence said car ran into the wagon in which the plaintiff was riding and caused the injury complained of. Such is the contention of the plaintiff. The plaintiff claims that the defendant company was negligent, first, in running the car which caused the accident at an excessive rate of speed, and, secondly, in not giving any timely or proper warning of its approach.

The defendant company, on the other hand, contends that it was not guilty of the negligence which caused the injury to the plaintiff; that it exercised all reasonable and proper care and diligence to prevent the accident, and that the injury was caused by the negligence of the plaintiff. The defendant, therefore, denies any and all liability for the injury.

It is admitted in this case that the defendant is a corporation, as alleged in the declaration, and that at the time of the accident it was operating the car in question. You have heard the evidence, gentlemen, and it is now for your consideration and determination, applying thereto the law as we shall declare it to you.

The principles of law applicable to this case have been clearly settled by the courts of this State. This suit is based on negligence, and it is proper that we should explain to you what negligence in legal contemplation is. It has been defined 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. It is for you to determine whether there was any negligence that caused the injury complained of, and if there was, whether it was the negligence of the defendant or the plaintiff. And we say to you that the defendant can be held liable only for such negligence as constitutes the proximate cause of the injury.

Negligence is never presumed, but must always be proved; and the burden of proving it rests always upon the plaintiff.

Ordinary care and diligence, when applied to the management of railways, must be understood to import all the care circumspection, prudence and discretion which the peculiar circumstances of the place or occasion reasonably require of the servants of the defendant company, and this will be increased or diminished according as the ordinary liability to danger and accident, and to do injury to others, is increased or diminished in the movement and operation of the cars. But, on the other hand, it is equally well settled as a principle of law that the plaintiff was also...