Brown v. Mayor and Council of Wilmington

• Decision Date: 16 January 1914
• Court: Delaware Superior Court
• Parties: JAMES M. BROWN v. THE MAYOR AND COUNCIL OF WILMINGTON, a corporation existing under the laws of the State of Delaware

90 A. 44

27 Del. 492

JAMES M. BROWN v. THE MAYOR AND COUNCIL OF WILMINGTON, a corporation existing under the laws of the State of Delaware

Superior Court of Delaware, New Castle County

January 16, 1914

Superior Court, New Castle County, January Term, 1914.

ACTION ON THE CASE (No. 61, March Term, 1913) to recover damages for personal injuries alleged to have been sustained by the plaintiff by being run into and knocked down by an automobile (being the police patrol) driven and operated by one of the defendant's servants, on King Street between Second and Third, in the City of Wilmington.

The facts appear in the charge of the court.

Counsel for plaintiff in support of their prayers cited:

(1) As to the right of a traveler on foot to use a public street the same as a vehicle of any kind, and the degree of care required of a driver of an automobile, Hannigan v Wright, 5 Penn. 537, 63 A. 234; Simeone v Lindsay, 6 Penn. 224, 65 A. 778.

(2) As to care, speed and warning in the operation of an automobile upon public streets of a city, Lampe v. Jacobsen, 46 Wash. 533, 90 P. 654.

(3) As to the correlative rights, care and duty of a traveler on foot and the owner of an automobile or person operating it under owner's direction on a public street, Hennessey v. Taylor, 189 Mass. 583, 76 N.E. 224, 3 L. R. A. (N S.) 345, 4 Ann. Cas. 396.

(4) As to care required in driving an automobile, if undertaking to pass another on the street, going in the same direction, Simeone v. Lindsay, 6 Penn. 224, 65 A. 778.

(5) As to measure of damages for personal injuries to a foot traveler on a public street resulting from negligence in operating an automobile, Simeone v. Lindsay, 6 Penn. 224, 65 A. 778; Murphy v. Hughes Bros. & Bangs, 1 Penn. 250, 40 A. 187; Ray v. D. S. Steel Co., 2 Penn. 525, 47 A. 1017; Boyd v. Blumenthal & Co., 3 Penn. 564, 52 A. 330; Winkler v. P. & R. R. R. Co., 4 Penn. 80, 53 A. 90.

Counsel for defendant in support of their prayers cited:

(1) As to the duty of traveler on foot in a public street to use reasonable care and his senses to avoid injury, Cecchi v. Lindsay, 1 Boyce 189, 75 A. 376.

(2) As to the consideration to be given if plaintiff was using the bed of the street in a state of intoxication at the time of the accident, Heinel v. Peoples Railway Co., 6 Penn. 437, 67 A. 173.

Verdict for plaintiff.

Caleb E. Burchenal and W. W. Knowles for plaintiff.

Daniel O. Hastings, City Solicitor, and William S. Hilles for defendant.

Judges CONRAD and WOOLLEY sitting.

OPINION

WOOLLEY, J., charging the jury:

Gentlemen of the jury:--This is an action instituted by James M. Brown, the plaintiff, against the Mayor and Council of Wilmington, the defendant, to recover damages for personal injuries which he alleges he sustained by being run into and knocked down by an automobile driven and operated by one of the defendant's servants. In support of this action the plaintiff claims, that on the evening of April 20, 1912, he was walking southwardly with a throng of people on the roadway of King Street, near the westerly curb thereof, between Third and Second Streets in the City of Wilmington; that while in the exercise of proper care and caution on his part, the defendant, by its servant, drove its police patrol, being an automobile or auto car, down the street upon which he was lawfully and carefully walking, at a high and dangerous rate of speed, without giving to him any warning of its approach, and thus negligently and recklessly ran into and upon him, causing the injuries for which he now seeks damages.

The defendant denies liability in this action and maintains that instead of its servant running its police patrol into the plaintiff, the plaintiff in fact ran into the police patrol, and that if the injuries to the plaintiff were the result of negligence, the negligence was not that of the defendant, but was the negligence of the plaintiff himself.

It is admitted that the Mayor and Council of Wilmington, the defendant, owned and through its servant, operated the motor vehicle, known generally as a police patrol, at the time the plaintiff received his injuries. Such being the case, the acts of the driver of the patrol become the acts of the defendant, and negligence on his part in operating the machine, if any, becomes the negligence of the defendant, for which the defendant may be held liable in damages.

It is admitted that King Street, upon which the accident in question occurred, is a public road or highway. A public highway is open in all its length and breadth to the reasonable, common and equal use of the people, on foot and in vehicles. The owner of an automobile has the same right as the owner of other vehicles to the use of the highway, and like them he must exercise care and caution for the safety of others.

A traveler on foot has the same right to the use of the public streets of a city as a vehicle of any kind. In using any part of the streets all persons are bound to the exercise of reasonable care to prevent collisions and accidents. Such care must be in proportion to the danger or the peculiar risks in each case. Where one undertakes to pass another on the highway, going in the same direction, he must take reasonable care to exercise that right, so as not to injure another, and is liable for the consequences of his negligence. It is the duty of the person operating an automobile or any other vehicle, upon the public streets of a city to use ordinary care in its operation, to move at a rate of speed reasonable under the particular circumstances and cause it to slow up or to stop if need be, where danger is imminent and could, by the exercise of reasonable care, be seen or known in time to avoid accident. Greater care is required at street crossings and in the more crowded streets of a city than in the less obstructed streets in the open or suburban parts. There is a like duty of exercising reasonable care on the part of the pedestrian. The person having the management of the vehicle and the traveler on foot are both required to use such reasonable care as the circumstances of the case demand, an exercise of greater care on the part of each being required where there is an increase of danger. The right of each must be exercised in a...