Culbert v. Wilmington and Philadelphia Traction Company

Decision Date03 April 1912
Citation26 Del. 253,82 A. 1081
CourtDelaware Superior Court
PartiesMARTHA B. CULBERT v. THE WILMINGTON AND PHILADELPHIA TRACTION COMPANY, a corporation of the State of Delaware

Superior Court, New Castle County, March Term, 1912.

ACTION ON THE CASE (No. 81, May Term, 1911) to recover for personal injuries alleged to have been occasioned by the defendant company, on the first day of March, A. D. 1911, at the intersection of Fourth and Harrison streets at about 2.30 p m., by car No. 22 of the West Fourth Street line running over left foot or ankle of the plaintiff, who had just alighted from car No. 24 of the West Fourth Street line at Fourth and Harrison streets, and after so alighting walked around the rear end of the westbound car and was struck by the eastbound car.

The plaintiff, at the trial, testified concerning the accident as follows:

On the day of the accident, which occurred at Fourth and Harrison streets, in this city, about three o'clock in the afternoon, I was riding on a car of the defendant company going west on Fourth Street. It was a beautiful day and the ground was perfectly dry. Upon arriving at Fourth and Harrison streets, the rear of the car stopped at the flagstone on the westerly side of Harrison Street and I alighted from the north side of the car upon the flagstone and turned around the standing car in order to get on the pavement on the southerly side of Fourth Street and the westerly side of Harrison. My destination was 1206 West Fourth Street, which was west of Harrison. In passing around the end of this standing car, I passed right close up to the car and was listening very attentively at the time for the car, if there might be a car coming. I was listening for the east bound car, but there was no alarm given. I am familiar with the practice of the defendant company for an approaching car to ring the bell when passing a standing car. In passing around the car from which I alighted, I was relying on the ringing of the bell of the eastbound car and just as I passed from behind the car between the westbound and eastbound tracks the eastbound car was right there; right on me before I knew it. Just when I stepped between the two tracks the front platform of the eastbound car was right in front of me. I threw up my hands. I was very much alarmed. I was afraid I was going to get hurt, and I was dragged along with my hands against the side of the car about ten or twelve feet and fell to the ground, and the rear wheel went over my left foot and mashed it very badly, so much so that my foot had to be amputated.

K., a juror, was sworn upon his voir dire and asked by counsel for plaintiff the following question: "Are you a stockholder of the Wilmington and Philadelphia Traction Company, the defendant?" "Yes, sir." Mr. Chaytor thereupon challenged the juror for cause. Mr. Gray objects, contending that the juror being a stockholder was not a ground for challenge for cause.

PENNEWILL, C. J.:--

We understand the juror just called is a stockholder of the defendant corporation. We think for that reason he ought to be excused.

Mr. Gray, of counsel for defendant: I desire to ask the juror a question.

Q. Could you, notwithstanding the fact that you are a stockholder in the defendant company, find a verdict according to the law and the evidence in this case?

(Objected to by Mr. Chaytor, of counsel for plaintiff, as immaterial.)

PENNEWILL C. J.:--

It occurs to us that as the fact of his being a stockholder is a sufficient ground for challenge for cause; it is immaterial what his opinion may be as to whether he could decide the case according to the evidence. The question before us is whether the fact that he is a stockholder disqualifies him, and we think it does.

(The juror was thereupon excused by the court for cause.)

PLAINTIFF'S PRAYERS.

"Negligence on the part of the motorman in charge of the car in question would be the negligence of the defendant company." Garrett v. Ry. Co., 6 Penn. 29 (31).

"Negligence in the legal sense is the failure to observe, for the protection of the interest of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury." Tully's Adm. v. Ry. Co., (Supreme Ct.), 2 Penn. 537 (540).

"The term, ordinary care and diligence," when applied to the management of electric cars in motion, may be understood to import all the care, circumspection, prudence and discretion, which the particular circumstances of the place and occasion require of the servants of the defendant company; and this will be increased or diminished as the ordinary liability to danger, accident and injury is increased or diminished in the movement and operation of such cars. Lenkewicz v. Ry. Co., 7 Penn. 64 (68).

A street car on approaching a crossing must give proper warning. Adams v. Ry. Co., 3 Penn. 512; Farley v. Ry. Co., 3 Penn. 581; Bass' Adm. v. Ry. & L. Co., 100 Va. 1; 40 S.E. 100.

What warning is proper must be determined in the light of all the circumstances of the particular case. Di Prisco v. Ry. Co., 4 Penn. 527 (533).

The citizen has a right to rely upon the sounding by the motorman such signals as are proper under all the circumstances of the case, and negligence should not be imputed to him by reason of such reliance. Smith v. Union Trunk Line, 51 P. 400 (401) (Washington); Parsons v. N. Y. C. & H. R. R. Co., 113 N.Y. 363; Bass' Adm. v. Ry. & Light Co. (Va.) 40 S.E. 100 (102).

If the motorman violated any rule or regulation of the defendant company as to the giving of warning, the jury may consider this fact as an evidence of negligence. Smithson v. G. W. Ry. Co., 71 Minn. 216 (228).

Whatever the jury may decide to be proper warning under the circumstances of this case, if they shall find from the evidence that the uniform and continuous practice of the defendant company has been to sound the gongs of its cars frequently while passing standing cars, and that such course of conduct was known to and relied upon by the plaintiff, at the time of the accident, these facts may be taken into account by them in estimating the degree of diligence required of the plaintiff in looking out for an approaching car before she crossed the eastbound track. Wil. City Ry. v. White, 6 Penn. 363 (371).

The person in the management of a street car is bound to the reasonable use of his sense of sight for the prevention of accident. Di Prisco v. W. C. Ry., 4 Penn. 527 (533); Wilman v. Ry. Co., 4 Penn. 260 (262); Farrestal v. Milwaukee E. R. Co., 119 Wis. 495 (499); Balto. Trac. Co. v. Helms, 84 Md. 515 (526); Hall v. Ry. Co., 44 P. 1046 (Utah).

"Where the railway approaches the crossing at a steep down grade, * * * or where the view of the railway from the crossing street is obstructed by buildings or otherwise, greater care is required of the person in charge of the car than when the approach of the railway to the crossing is at or near the grade of the crossing, * * * or where the view of the railway is unobstructed." Snyder v. Ry. Co., 4 Penn. 145 (149).

It is the duty of the company to see that its motormen "slow up, or stop, if need be, where danger is imminent and could, by the exercise of reasonable care be seen or known in time to prevent the accident. " Adams v. Ry. Co., 3 Penn. 512 (514); Farley v. Ry. Co., 3 Penn. 581 (583); Di Prisco v. Ry. Co., 4 Penn. 527 (532).

"And as the danger of collision increased, if he, the motorman, saw or could see the danger, it was his duty to use all the means in his power to check or stop the car." Ry. Co. v. White (Supreme Court), 6 Penn. 363-(367); Bunyan v. Ry. Co., 29 S.W. 842 (844).

"The general rule is none the less certain that at a street crossing, or at a place used as a street crossing, the motorman in charge of a car approaching one discharging passengers is bound to keep a sharp lookout for passengers or other persons who may attempt to cross the tracks behind the standing or moving car, to have his car under such control that he can stop it upon the appearance of danger, and to give such signals as will usually protect travelers who are in the exercise of ordinary prudence." Bremer v. R. Co., 120 N.W. 382; (Minn. Mar. 1909); R. Co. v. Robinson, 127 Ill. 9; Bunyan v. Ry. Co., 29 S.W. 842 (843); Traction Co. v. Lusby, 12 App. D. C. 295.

If the jury believe that the motorman in charge of the car which inflicted the injury saw or by the exercise of reasonable care could have seen the plaintiff when she stepped from behind the standing car, and she was then in a position of imminent danger, and the motorman by the exercise of reasonable care could have stopped his car in a shorter distance than he did stop it, and if he had stopped the car in the distance in which the car was so susceptible of being stopped, the plaintiff would not have been injured, then the defendant is guilty of negligence proximate to the injury and the plaintiff is entitled to your verdict. Adams v. Ry. Co., 3 Penn. 512 (514); Farley v. Ry. Co., 3 Penn. 581 (583); Di Prisco v. Ry. Co., 4 Penn. 527 (532); Bunyan v. Ry. Co., 29 S.W. 842 (843); Nielson v. City of Albert La., 87 Minn. 280 (284).

"It is now perfectly settled that the plaintiff may recover damages for an injury caused by the defendant's negligence notwithstanding the plaintiff's own negligence exposed her to the risk of injury, if such injury was more immediately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to her." Tully's Adm. v. R. Co., (Supreme Ct.), 2 Penn. 537 (541); Lenkewicz v. Ry. Co., 7 Penn. 64 (69); Jones v. Holt, 5 Houst. 562 (568); Ford v. Warner Co., 1 Marv. 88 (93).

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1 cases
  • Owens v. Wilmington & Philadelphia Traction Co.
    • United States
    • Superior Court of Delaware
    • April 1, 1921
    ...117 A. 454 31 Del. 475 HOWARD F. OWENS v. WILMINGTON & PHILADELPHIA TRACTION COMPANY Superior Court of Delaware, New Castle CountyApril 1, 1921 [117 A. 455] . [Copyrighted Material Omitted]. [117 A. 456] . . . Superior ... would be the negligence of the defendant company. Garrett. v. Railway Co., 6 Pennewill, 29, 31, 64 A. 254;. Culbert v. W. & P. Tr. Co., 3 Boyce, 253, 270, 82 A. 1081. . . Negligence. in the legal sense is the failure to observe, for the. protection ......

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