Campbell v. Walker

• Decision Date: 02 December 1910
• Citation: 25 Del. 41,78 A. 601
• Court: Delaware Superior Court
• Parties: MARY E. CAMPBELL v. ALFRED N. WALKER

78 A. 601

25 Del. 41

MARY E. CAMPBELL v. ALFRED N. WALKER

Superior Court of Delaware, New Castle County

December 2, 1910

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

ACTION ON THE CASE (No. 65, January Term 1910), to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligent operation of an automobile by the defendant, on the twentieth day of August, A. D. 1909, on a public highway leading from Newark to Marshallton in New Castle County. The allegation being that the plaintiff was thrown from the wagon in which she was riding by the said automobile colliding with the same.

(See same case on demurrer, 1 Boyce, 580.)

The case is stated in the charge to the jury.

Verdict for plaintiff.

Levin Irving Handy for plaintiff.

J Harvey Whiteman for defendant.

Judges BOYCE and HASTINGS sitting.

OPINION

HASTINGS, J., charging the jury:

Gentlemen of the jury:--This action was brought by the plaintiff, Mary E. Campbell, against the defendant, Alfred N. Walker, to recover damages for personal injuries which she alleges she sustained by reason of being thrown from a wagon in which she was riding when the same was struck by an automobile belonging to and operated by the defendant on the twentieth day of August, A. D. 1909, on a public highway leading from the town of Newark to the town of Marshallton, this county.

The plaintiff alleges in her declaration that she was riding in a vehicle drawn by a horse along the public highway on the date above mentioned, when the automobile of the defendant came up in the rear of said vehicle and overtook the same and collided with and struck the vehicle in the rear, and thereby caused her to be thrown out; that the negligence of the defendant consisted in--

First. His attempt to pass the said vehicle on the right side of the road and the right side of the vehicle.

Second. His failure to give warning of his approach.

Third. His operating the automobile when he was partially blind.

Fourth. His running of the automobile at a great, dangerous and unlawful rate of speed.

The plaintiff contends that the wagon in which she was riding at and before the time of the accident was on the right side of the road, with plenty of room on the left side for an automobile to pass; that she heard no horn blown, and her first knowledge that an automobile was approaching was when the horse that was hitched to the wagon showed some evidence of fright; that she looked around and found the automobile at the rear end of the wagon and attempting to pass on the right side; that the horse was pulled quickly to the left, but the automobile struck the right rear wheel of the wagon causing her to be thrown out and injured.

The defendant, on the other hand, contends that he saw the vehicle ahead of him on the left side of the road when a quarter of a mile away, and that when he had approached to within 100 yards of it, and while it was still on the left side of the road, he blew his horn and continued to blow it until only a few yards away; that when about eight feet from the rear of the wagon, and to the right thereof, he attempted to pass, but the driver of the wagon pulled the horse suddenly to the right and in front of the automobile, and at that time it was too late for him to stop the automobile and prevent the accident. The defendant further contends that at the time he attempted to pass he was in full control of his machine.

This, briefly stated, is substantially the contention of the parties to this action.

This accident happened on the public highway, which was open in all its length and breadth to the reasonable, common and equal use of the people, including the automobile as well as the vehicle in question. In using such highway all persons are bound to the exercise of reasonable care to prevent accidents. Such care must be in proportion to the danger in each case. For instance, greater caution is required at street crossings and in the more thronged streets of a city than in the less obstructed streets or in the country. The persons operating an automobile, and the driver of a horse hitched to a wagon, whether along a country road or in the thronged streets of the city, are both required to use such reasonable care, circumspection, prudence and discretion as the circumstances require; an increase of care being required where there is an increase of danger. Both are bound to the reasonable use of all their senses for the prevention of accident, and the exercise of all reasonable caution as ordinarily careful and prudent persons would exercise under like circumstances.

A traveler has an equal right to employ an automobile as a means of transportation and to occupy the public highways with other vehicles in common use, and the operator of such automobile has the right to assume and to act upon the assumption that every other person traveling on the highway will exercise ordinary care and caution according to the circumstances and will not negligently and recklessly expose himself to danger and will make an attempt to avoid it.

This action is based on negligence, which has been defined to be the want of ordinary care; that is, the want of such care as a reasonably prudent and careful person would exercise under similar circumstances.

In this connection it is our duty to call to your attention a certain statute of this state entitled "An act defining motor vehicles and providing for the registration of the same, and uniform rules regulating the use and speed thereof," being Chapter 120, Volume 25, Laws of Delaware. Section 11 of this act provides as follows:

"Upon approaching any person walking upon the public highways, or a horse, horses, or other draft animals being led, ridden or driven, the operator of the...