Cox v. Wilmington City Railway Co.
| Decision Date | 12 December 1902 |
| Citation | 53 A. 569,20 Del. 162 |
| Court | Delaware Superior Court |
| Parties | EVA M. COX, widow of ELMER E. COX, v. WILMINGTON CITY RAILWAY COMPANY |
Superior Court, New Castle County, November Term, 1902.
ACTION ON THE CASE (No. 131 November Term, 1901).
Verdict for plaintiff for $ 6000.
William T. Lynam and J. Harvey Whiteman for plaintiff.
Walter H. Hayes for defendant.
OPINION
LORE, C.J., charging the jury:
Gentlemen of the jury:--It is conceded in this case, that on the eighteenth day of September, 1901, a horse and light delivery wagon of the Hartman & Fehrenbach Brewing Company, under the control of Elmer E. Cox as driver, moving eastwardly on Ninth street between Walnut and French streets in this city collided with a summer trolley car owned and operated by the defendant company, moving westwardly on the same street.
That in the collision, Cox received injuries of such a nature that he died on the following Sunday, September 22d.
This action is brought by Eva M. Cox, the widow of said Elmer E. Cox deceased, to recover the damages she claims to have sustained as such widow, by reason of the death of her said husband, which death she charges resulted from the negligence of the defendant company; in that at the time of the accident, the car of the defendant company was being managed and run recklessly by the motorman, at a violent and dangerous rate of speed, and without the sounding of gong or ringing of bell.
The defendant denies these allegations, and claims that the accident resulted from the negligence of said Elmer E. Cox, and not from that of the company.
The one question for you to determine is, was the accident the result of negligence; and if so, whose negligence; that of Cox, or of the defendant?
In order to aid you in reaching a correct conclusion, the Court will state certain principles of law applicable to the case.
The plaintiff bases her right to recover, upon the negligence of the defendant. The burden of proving such negligence is upon the plaintiff, and is to be shown by a preponderance of evidence to your satisfaction. If she has failed so to satisfy you, she cannot recover.
It is admitted that at the time of the accident Ninth street was a public highway of this city, and that both the said Elmer E. Cox and the said defendant had the right to use the same lawfully, for their respective purposes.
In the use of the said highway, each party was bound to exercise such caution and care to prevent injury to others as ordinarily prudent and careful men would exercise, under all the conditions and circumstances surrounding the time and place of accident.
The deceased was free to use any and all parts of the street, fit for public travel, at his will. The car could move only over and along its fixed tracks, and of necessity...
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The Wilmington City Railway Company v. Cox
...and PENNEWILL and BOYCE, J. J., sitting. OPINION The decree of the Supreme Court, affirming the judgment of the Court below (20 Del. 162, 4 Penne. 162, 53 A. 569) in above stated case was as follows: "And now to wit, this eighteenth day of January A.D. 1905, this cause coming on to be heard......