Eaton v. Wilmington City Railway Company

Decision Date17 February 1910
CourtDelaware Superior Court
PartiesISAIAH N. EATON v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware

Superior Court, New Castle County, January Term, 1910

ACTION ON THE CASE (No. 41, March Term, 1909), to recover damages for personal injuries, alleged to have been sustained by the plaintiff on September 26, 1908, through the negligence of the defendant in so operating two of its cars on West Eighth Street in Wilmington as to cause a collision; on one of which cars plaintiff was a passenger.

The jury disagreed.

W. W Knowles for plaintiff.

Walter H. Hayes and H. H. Ward (of Ward, Gray and Neary) for defendant.

PENNEWILL C. J., and CONRAD and WOOLLEY, J. J., sitting.

OPINION

PENNEWILL, C. J. charging the jury:

Gentlemen of the jury:--This is an action brought by Isaiah N. Eaton against the Wilmington City Railway Company, to recover damages for personal injuries to the plaintiff, alleged to have been caused by the negligence of the defendant company in so running and operating its railway on September 26, 1908, as to cause a collision between two of its cars near Eighth and Monroe Streets in this City, on one of which cars the plaintiff was at the time a passenger.

There are eleven counts contained in the plaintiff's declaration, but without undertaking to set out specifically the negligence relied upon in each count, the several acts of negligence averred may be stated as follows:

That the defendant so negligently and carelessly operated the car upon which the plaintiff was riding as a passenger, that it ran into a certain other car operated by the defendant; that the defendant so negligently and carelessly operated and permitted a certain car to remain standing on its railway as to be run into and struck with great force and violence by a certain other car; that the defendant negligently operated two cars on its line of railway, whereby one of said cars, upon which the plaintiff was riding as a passenger, ran into the other car; that the defendant so carelessly and negligently managed and operated the car upon which the plaintiff was riding as a passenger as to run the same at a high and dangerous rate of speed in the direction of and towards a certain other car standing on the tracks of the defendant company; that the defendant carelessly and negligently used and operated the car on which the plaintiff was riding, with a defective brake; that the defendant carelessly and negligently used and operated the car on which the said plaintiff was riding as a passenger, with a defective sand lever; that the said defendant carelessly and negligently used and operated the car on which the plaintiff was riding as a passenger, with a defective sand box; that the said defendant carelessly and negligently used and operated the car on which the said plaintiff was riding as a passenger, with an insufficient number of sand boxes. And the plaintiff avers that by reason of said several acts of negligence on the part of the defendant, he the said plaintiff, believing at the time that one car was about to collide with the other car, and also believing it to be for his own safety, stepped or jumped, just before the collision, from the car in which he was riding as a passenger, to the street or ground, whereby he was greatly bruised, cut, mangled, broken, injured and distressed, and became sick, sore, lame and disordered, and so remained and continued for a long space of time, was permanently injured, underwent and still does undergo great pain and suffering, was forced to expend a large sum of money in attempting to be cured, and also lost large gains and profits which he would otherwise have made, and was prevented from attending to his ordinary and necessary affairs and business.

It is agreed by the defendant company that it is, and was, at the time of the accident a common carrier; and that the said company was operating the cars in question on West Eighth Street at the time of the alleged injury, and that the company was rightfully and lawfully on West Eighth Street.

But the defendant denies that it was guilty of any negligence in the use, operation or management of its said car or cars, which caused the injuries to the plaintiff.

This action is based upon negligence, which has often been defined by this Court to be the want of ordinary care, that is, the want, or failure to exercise such care as a reasonably prudent and careful man would exercise under similar circumstances.

It is for you to determine from the evidence whether there was any negligence that caused the injuries which are the subject of this suit, and if there was, whether it was the negligence of the defendant.

To enable the plaintiff to recover at all, he must have shown to your satisfaction by a preponderance of the evidence that the negligence that caused the accident, if any there was, was that of the defendant. Negligence is never presumed. It must be proved, and the burden of proving such negligence is upon the plaintiff, and the defendant can be held liable only for such negligence as constitutes the proximate cause of the accident. There is no presumption of negligence, either on the part of the plaintiff or on the part of the defendant, from the mere fact that the plaintiff was injured.

The term "ordinary care," when applied to the management of a railway, imports all the care which the peculiar circumstances of the place or occasion reasonably require; and this will be increased or diminished according as the ordinary liability to danger or accident, and injury to others, is increased or diminished in the movement and management of the cars. In the management of trolley cars and especially in going down grade, it is the duty of the motorman, if he is able to do so, to make the descent at such reasonable speed as not to allow the car to get beyond his control; and as the danger of a collision with another car increases it is his duty to use all means in his power to check or stop the car. This does not impose upon the motorman, however, an impossibility. If he in fact did all he could to control the speed of the car, under the circumstances, the company would not be liable, provided the car was properly equipped...

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6 cases
  • Owens v. Wilmington & Philadelphia Traction Co.
    • United States
    • Delaware Superior Court
    • April 1, 1921
    ... ... 475 HOWARD F. OWENS v. WILMINGTON & PHILADELPHIA TRACTION COMPANY Superior Court of Delaware, New Castle CountyApril 1, 1921 [117 A. 455] ... Railroad Co., 3 Pennewill, 512, 52 ... A. 264; Farley v. Railway Co., 3 Pennewill, 581, 52 ... A. 543; Bass' Adm'r v. Railway & L. Co., ... W. & P. Tr. Co., 3 ... Boyce, 253, 267, 82 A. 1081; Eaton v. Wil. City Ry ... Co., 1 Boyce, 435, 75 A. 369 ... Where ... ...
  • Taylor v. Du Pont Building Corporation, a Corporation of State
    • United States
    • Delaware Superior Court
    • November 8, 1916
    ...with other undisputed concomitant facts established by other witnesses. The principle of law laid down by the courts of this state in the Eaton case and the Simeoni case have application to the facts of this case. If in citing Akers v. The City of New York, and Dyer v. Railway Company, such......
  • Wise v. The Western Union Telegraph Co.
    • United States
    • Delaware Superior Court
    • November 5, 1935
    ... ... THE WESTERN UNION TELEGRAPH COMPANY, a corporation of the State of New York Superior Court of ... relies upon Eaton v. Wilmington City R. Co., 1 ... Boyce (24 Del.) 435, 75 ... ...
  • Stucker v. American Stores Company
    • United States
    • Delaware Superior Court
    • March 8, 1932
    ... ... southeast corner of Twenty-fourth and Market Streets, in the ... City of Wilmington, State of Delaware, and on said date said ... American ... of danger by the negligence of the defendant, see Eaton ... v. Wilmington City Ry. Co., 1 Boyce (24 ... Del.) 435, 75 A. 369 ... ...
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