Brown v. Wilmington City Railway Company

• Decision Date: 02 June 1898
• Citation: 40 A. 936,17 Del. 332
• Court: Delaware Superior Court
• Parties: LEWIS BROWN v. WILMINGTON CITY RAILWAY COMPANY

40 A. 936

17 Del. 332

LEWIS BROWN v. WILMINGTON CITY RAILWAY COMPANY

Superior Court of Delaware, New Castle County

June 2, 1898

Superior Court, New Castle County, May Term, 1898.

ACTION ON THE CASE (No. 69, Sept. Term, 1897), to recover compensation for injuries to plaintiff's horse, harness and furniture car, and losses and expenses incident thereto. See facts in charge of court.

The defendant prayed the court to instruct the jury, in part, as follows:

As the plaintiff approached the crossing he was bound to stop and look or listen, if his view was obstructed, and thereby satisfy himself that he would not collide with a car in crossing the tracks; and if he failed to stop sufficiently to look or listen, he cannot recover, for he himself was guilty of negligence producing the injury.

Lynam and wife vs. P., W. & B. R. R. Co., 4 Houst., 583; Ehrisman vs. Railway Company, 150 Pa. 180; Central Pass. Ry. Co. vs. Chatterson, 14 Ky. L. R 663; Christenson vs. Union Ry., 32 Pac. R., 1018; Hickman vs. Union Depot Co., 47 Mo., App., 65; Wood vs. Detroit St. Ry. Co., 52 Mich. 402; McGee vs. Railway Co., 102 Mich. 107; Blakslee vs. Railway Co., 5 Am. E. C., 490; Boerth vs. West Side Ry. Co., 87 Wis. 288; Carson vs. Federal St. Ry., 147 Pa. State, 219; Blaney vs. Electric Traction Co. (certified copy of opinion of Court, February 7, 1898); Whelshan vs. Phila. Trac. Co., 150 Pa. State, 187; Maxwell vs. Wil. City Ry. Co., 1 Hardesty, 140; Higgins vs. Wil. City Ry. Co., 2 Hardesty, 90; Sec 10, Vol. 12, Del. Laws, 432.

If the plaintiff did stop before going upon the tracks and saw the car coming, or heard it coming, and mistakenly thought he had time to get across, but miscalculating the distance or speed of the car, failed to get across and was struck, he cannot have a verdict, for the accident was due to his own miscalculation and he took his chances of the accident's occurring.

Patton vs. Phila. Trac. Co., 132 Pa. State, 76; Balton vs. Baxter, 54 N.Y. 245; Claney vs. Ry. Co., 88 Hun., 496.

Verdict for defendant.

Lilburne Chandler for plaintiff.

Willard Saulsbury and James W. Ponder for defendant.

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

OPINION

LORE, C. J. charging the jury:

Gentlemen of the jury:--This is an action on the case to recover compensation for injuries to the plaintiff's horse, harness and furniture car, and losses and expenses incident thereto.

The plaintiff claims that on the thirty-first day of July, 1897, his horse, which was harnessed to a furniture car, in care of and driven by his son, Walter Brown, while slowly and carefully passing from the foot of King street, westwardly into Front street in this city, was run into by defendant's electric Riverview car No. 117. That thereby the horse was thrown down and pushed some ten feet over the city pavement and much injured; that the harness and furniture car were broken up and rendered practically useless. The plaintiff claims that at the time of the accident, his son was exercising all due care. He charges that the motorman on the electric car was not looking at his work, but back at the conductor, and was otherwise negligent and reckless. That the car was running at a high rate of speed, that the motorman saw, or by reasonable care could have seen the plaintiff's horse and wagon in time to have stopped the car if he had seen fit to do so. That the collision and the injuries resulting therefrom were caused solely by the negligence of the defendant.

The defendant, on the other hand, claims that at the time of the accident the said Walter Brown drove rapidly and carelessly down King street and around and into Front street, and carelessly ran into the side of the car, when the car had practically come to a stop at the time of the collision. That the injuries complained of resulted entirely from the negligence of the said Walter Brown. That the plaintiff's son, without looking, listening or stopping, drove rapidly into Front street--which is twenty-five feet wide from curb to curb, and has two tracks of the City Electric Railway Company on its bed, which are generally known as the north-bound and the south-bound tracks--whereas if he had simply looked, he could have seen the approaching electric car and stopped the wagon in time to have avoided the accident. You will remember the evidence in all its details bearing upon these two contentions. You are to be governed exclusively in reaching your verdict by your recollection of that evidence, and in nowise are to be controlled by what I may have said to you in respect thereto in stating the case.

Your province is to ascertain, whether the injuries complained of were or were not caused by the negligence of the defendant. The plaintiff's right to recover is founded upon the negligence of the defendant, and the burden is upon the plaintiff to show such negligence to your satisfaction, by a preponderance of the evidence, or he cannot recover.

King and Front streets in this city are public highways. The defendant company have a right to use Front street for the operation of their electric railway, in common with other travelers and persons, who may see fit to use it on foot, on horseback, in vehicles drawn by horses or otherwise. The public were entitled to use every part of the street. The electric cars of necessity could use only those parts of it covered by their tracks; inasmuch as...