Ebersole v. Lowengrub

• Decision Date: 16 April 1962
• Citation: 54 Del. 463,180 A.2d 467,4 Storey 463
• Parties: , 54 Del. 463 David K. EBERSOLE, Jr., Plaintiff Below, Appellant, and William Becker, Defendant Below, Appellant, v. Morton LOWENGRUB, John Clementee, Howard E. Reese and Jefferson Johnson and Frank Harris, Defendants Below, Appellees.
• Court: United States State Supreme Court of Delaware

Page 467

180 A.2d 467

4 Storey 463, 54 Del. 463

David K. EBERSOLE, Jr., Plaintiff Below, Appellant, and William Becker, Defendant Below, Appellant, v. Morton LOWENGRUB, John Clementee, Howard E. Reese and Jefferson Johnson and Frank Harris, Defendants Below, Appellees.

Supreme Court of Delaware.

April 16, 1962.

Reargument Denied April 30, 1962.

An appeal from the Superior Court in and for New Castle County.

C. W. Berl, Jr., of Berl, Potter & Anderson, Wilmington, for Ebersole.

F. Alton Tybout, of Prickett, Prickett & Tybout, Wilmington, for Becker.

David Snellenburg, II, of Killoran & Van Brunt, Wilmington, for Lowengrub.

Louis J. Finger, of Richards, Layton & Finger, Wilmington, for johnson.

Frank J. Miller, of Foulk, Walker, Miller & Wakefield, Wilmington, for Reese.

Samuel R. Russell, of Morford, Young & Conaway, Wilmington, for Clementee.

Before SOUTHERLAND, C. J., and WOLCOTT, Justice, and STIFTEL, Judge, sitting.

WOLCOTT, Justice.

This is an action for personal injuries and property damage brought by the appellant Ebersole against five defendants. The litigation arises from a series of rear-end collisions involving six automobiles. Following the filing of the complaint all of the appearing defendants cross-claimed against each other for contribution under the joint tortfeasor statute. All of the defendants with the exception of the appellant Becker moved for summary judgment against the plaintiff Ebersole.

The Superior Court granted summary judgment in favor of the defendants Lowengrub and Clementee and in favor of the defendants Reese and Johnson as to the personal injury claim against them, but left them in the action as defendants against the claim for property damage. An appeal was taken from the orders granting summary judgment by the plaintiff Ebersole and the defendant Becker.

The motions for summary judgment were based on the pleadings and on the deposition of the plaintiff Ebersole taken by the defendants. No other depositions were taken in support of the motions nor were any affidavits filed in support thereof. In so far as this appeal is concerned, therefore, the facts pertinent to the issue presented are those appearing from the deposition of the plaintiff Ebersole.

The plaintiff claims damages in the amount of $500.00 for injury to his automobile, and a further amount for personal injuries described as a traumatic myositis of the spinal erector muscles of the neck with torticollis, and for traumatic arthritis of the vertebrae of the neck and back and narrowing of the intervertebral disc spaces. Apparently, these injuries have resulted in past pain and will result in future pain, substantial medical and hospital expenses, and will leave the plaintiff with only limited motion of his legs, fingers and arms.

The facts of the accident are described by Ebersole as follows: On November 10, 1958 he was driving westerly in the left or fast lane of the Delaware Memorial Bridge which, at that point, consists of two westbound lanes. The traffic at that time and place was heavy in both westbound lanes, leaving no opportunity for cars to weave in and out. The traffic generally was proceeding at an approximate speed of 35 to 40 miles per hour through an area in which the posted speed limit was 45 miles per hour. Ebersole's speed at this time was that of the other moving traffic. At the time Ebersole was driving about three car lengths behind the car in front of him.

The first car in the procession of six cars involved in this accident was that of Lowengrub. For some reason not clear from Ebersole's deposition, but which Ebersole believes to be the slowing down of the car immediately preceding the Lowengrub car the Lowengrub car came to a stop. Ebersole believes that possibly the Lowengrub car actually struck the car in front of it, but this car, following whatever happened, proceeded on across the bridge and remains unidentified.

When the Lowengrub car came to a stop the Clementee car, the second car in line, made an emergency stop, warning of which was given to Ebersole, driving the third car in line, by the flashing of its stop lights. Ebersole immediately made an emergency stop himself by applying his brakes with all his force. Ebersole traveled about two car lengths and would have stopped in time to avoid running into the Clementee car but for the fact that the Becker car, the fourth car in line, struck his car in the rear, pushing it into the rear of the Clementee car, bringing both the Ebersole and the Becker cars to complete stops. Immediately, Ebersole turned in his seat to look behind him, at which point the Reese car, the fifth car in line, struck the rear of the Becker car pushing it against the Ebersole car. Almost immediately thereafter, the Johnson car, the sixth car in line, struck the rear of the Reese car in turn pushing it into the Becker car and the Becker car into the Ebersole car.

Ebersole stated in his deposition that the most severe impact was that caused his car by the Becker car driving it into the Clementee car. The impacts caused by the collision of the Reese and Johnson cars were not as severe, but are stated by Ebersole to have jarred him definitely.

Ebersole attributed his injuries primarily to the impact of the Becker car driving his car into the Clementee car, but it seems apparent from his deposition that he so attributes this solely because this impact was the most severe of the series. Ebersole states that the Becker car struck the hardest blow, although he refers in his deposition to the effect of the collisions of the Reese and Johnson cars as 'successive blows' and 'successive impacts'.

On the basis of this state of facts, the Superior Court granted the motions of Lowengrub and Clementee for summary judgment on the ground that, assuming negligence on their part, it was clear that such negligence was not 'the proximate cause of plaintiff's damages, but was remote.' The court also stated that if any evidence existed conflicting with the conclusion as to proximate cause, it was the duty of the plaintiff to bring it into the record in order to avoid the granting of summary judgment.

With respect to the motions for summary judgment in favor of Reese and Johnson, the court entered summary judgment in their favor as to the claim for personal injuries because the 'plaintiff's own testimony shows that his physical injuries were caused by the first impact'--that is, the collision of the Becker car. The court further stated that, in view of this, the obligation rested upon Ebersole to bring into the record some evidence which would create a material issue of fact upon this question for submission to the jury.

Summary judgment was entered in this case even though the action is based on the alleged negligence of the defendants. Generally speaking, issues of negligence are not susceptible of summary adjudication. It is only when the moving party establishes the absence of a genuine issue...