Boyd v. Hammond
| Decision Date | 09 January 1963 |
| Citation | 187 A.2d 413,55 Del. 336 |
| Parties | , 55 Del. 336 Eleanor BOYD and Adelaide Reed, Plaintiffs Below, Appellants, v. William Dorsey HAMMOND, guardian ad litem for Walter Dorsey Hammond, a minor child, et al., Defendant Below, Appellee, v. Elizabeth LOUDANCE, Third Party Defendant. |
| Court | Supreme Court of Delaware |
Appeal from the Superior Court in and for New Castle County.
Howard M. Berg, Wilmington, for appellants.
Joseph H. Geoghegan, of Berl, Potter & Anderson, Wilmington, for appellee.
Julian D. Winslow, Wilmington, for third party defendant.
This is an appeal by the plaintiffs below from an adverse judgment entered on a jury's verdict. The action is one for personal injuries arising out of an automobile accident which took place at a crossroads in a small country village.
The plaintiffs are the grandmother and mother respectively of the driver of the car in which they were riding on the back seat. This car was proceeding southerly on Route 33 approaching the intersection in question. At the intersection Route 33 is controlled by a stop sign. The defendant was proceeding westerly on Route 31 which is not controlled by a stop sign at the intersection. His car was proceeding at the time at a speed in excess of the permissible speed limit of 25 mph, the area being a residential district.
The driver of the car in which the plaintiffs were riding was at the time operating under a Pennsylvania learner's permit, and had had only a brief period of driver training. After the accident she pleaded guilty to a charge of violating the stop sign statute.
Prior to trial the defendant made the driver of the plaintiffs' automobile a third party defendant seeking contribution as a joint tortfeasor. At the conclusion of the testimony a directed verdict was ordered in favor of the third party defendant on the ground that there was no proof of 'wilful or wanton disregard of the rights of others' by her within the meaning of the Guest Statute, 21 Del.C. § 6101.
The appellants make a number of assignments of error. We will take them up seriatim.
First, it is argued that error was committed in instructing the jury to the effect that if the negligence of the driver of the car in which the plaintiffs were riding in going through the stop sign was found to be the sole proximate cause of the accident, a verdict must be returned for the defendant.
The appellants' argument is that since a verdict had been directed in favor of the driver, the third party defendant, her negligence thereafter was no longer an issue in the case. Therefore, it is argued, any instruction upon that issue served only to confuse the jury.
However, the verdict in favor of the third party defendant was directed because there was insufficient evidence to remove the bar of the Guest Statute as to her. There still remained in the case the issue of the proximate cause of the plaintiffs' injuries. If the sole proximate cause of those injuries was the negligence of the third party defendant, then the defendant--even if neglight--could not be held responsible. Since the issue of proximate cause is ordinarily a question of fact to be submitted under proper instructions for the decision of the jury, Island Express, Inc. v. Frederick, 5 W.W.Harr. 569, 171 A. 181, it was not only proper but necessary for the court to instruct the jury upon it.
We have examined the charge and note that on several occasions the court clearly and correctly pointed out to the jury that to exonerate the defendant because of the negligence of the driver of the plaintiffs' car, the jury must find that negligence to have been the sole and exclusive proximate cause of the plaintiffs' injuries. Far from confusing the jury, we think, the court's charge in this respect was clear and unambiguous. There is no error in this respect.
Next, it is argued that there was error in the instructions given on the issue of contributory negligence. It is argued that the instruction was ambiguous and permitted the jury to conclude that the negligence of the driver could be imputed to the passengers in the car, which is not the law.
The trial judge, however, instructed the jury specifically that the negligence of the driver could not be imputed to the plaintiff passengers. He then went on to instruct the jury that passengers nevertheless have a duty not to ride with an inexperienced driver, Restatement of Torts, § 466, and also a duty to maintain a lookout and to give appropriate warning when danger threatens. Poynter v. Townsend, 3...
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