Cecchi v. Lindsay

• Decision Date: 10 February 1910
• Citation: 75 A. 376,24 Del. 185
• Court: Delaware Superior Court
• Parties: ANGELLO CECCHI, by RAFAELO CECCHI, his next friend, v. NANCY E. LINDSAY and JOSEPH HORACE LINDSAY, her husband

75 A. 376

24 Del. 185

ANGELLO CECCHI, by RAFAELO CECCHI, his next friend, v. NANCY E. LINDSAY and JOSEPH HORACE LINDSAY, her husband

Superior Court of Delaware, New Castle County

February 10, 1910

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

ACTION ON THE CASE (No. 74, September Term, 1909), to recover damages for personal injuries alleged to have been sustained by the plaintiff, through the negligent operation of an automobile by the defendant Nancy E. Lindsay, on March 24th 1909, at Sixth and Tatnall Streets, in Wilmington.

Verdict for plaintiff for $ 270.

Leonard E. Wales for plaintiff.

James Saulsbury for defendant.

PENNEWILL C. J., and HASTINGS, J., sitting.

OPINION

HASTINGS, J. charging the jury:

Gentlemen of the jury:--This action is brought by the plaintiff Angello Cecchi, an infant, by his next friend Rafaelo Cecchi, against the defendants Nancy E. Lindsay and Joseph Horace Lindsay, her husband, to recover damages for personal injuries which he alleges he sustained by reason of being run into, knocked down and run over by an automobile driven and operated by Nancy E. Lindsay, one of the said defendants, on the twenty-fourth day of March, A. D. 1909, on one of the public streets of the City of Wilmington.

The plaintiff, a child about six years of age, by his next friend, contends that the said automobile was being run and operated along Tatnall Street in a northerly direction and that it turned at Sixth Street and proceeded in a westerly direction; that at the intersection of these two streets it was being run and operated, (1) in a negligent and careless manner; (2) at an unreasonable, dangerous and excessive rate of speed; (3) that no suitable, proper and timely warning of its approach was given; (4) that the driver thereof had no proper license as an operator of an automobile, and was at that time unskillful and incompetent to operate the same; and (5) that the driver did not use due diligence in stopping the automobile after discovering the presence of the plaintiff.

The plaintiff further contends that as a result of the negligent and careless manner in which the automobile was operated, he was struck by the same, knocked down, and that one of its wheels passed over him breaking his clavicle or collar bone and otherwise bruising and injuring him.

The defendants contend that they are not liable in this action because the said accident was not caused by any negligence on the part of the person operating the automobile, but on the contrary the operator used all necessary and reasonable care to avoid the accident of which the plaintiff complains; and they insist that the injury was caused by the carelessness of the plaintiff in running in front of the machine at a time when it was too late for the driver to either stop the machine or change its course.

It is not denied that Sixth Street, upon which the accident in question occurred, is a public highway. A public highway, this Court has declared, is open in all its length and breadth to the reasonable, common and equal use of the people, on foot or in vehicles. The owner of an automobile has the same right as the owner of other vehicles to use the highway, and like them he must exercise reasonable care and caution for the safety of others.

A traveler on foot has the same right to the use of the public highway as an automobile or any other vehicle. 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. It is the duty of a person operating an automobile, or any other vehicle upon the public highway, to use reasonable care in its operation, to move it at a rate of speed reasonable under the circumstances, and cause it to slow up or stop if need be, when danger is imminent.

Greater caution is required at street crossings and in the more thronged streets of a city than in the ess obstructed streets in the open or suburban parts. There is a like duty of exercising reasonable care on the part of the person traveling on foot.

The person having the management of the automobile and the traveler on foot 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. And both are bound to the reasonable use of all their senses for the prevention of accident, and the...