Farley v. Wilmington and New Castle Electric Railway Co.

• Decision Date: 24 June 1902
• Court: Delaware Superior Court
• Parties: JOHN P. FARLEY and JOHN P. FARLEY, Administrator of VICTORINE A. FARLEY, deceased, v. WILMINGTON AND NEW CASTLE ELECTRIC RAILWAY COMPANY, a corporation of the State of Delaware. JOHN P. FARLEY v. WILMINGTON AND NEW CASTLE ELECTRIC RAILWAY COMPANY, a corporation of the State of Delaware

52 A. 543

19 Del. 581

JOHN P. FARLEY and JOHN P. FARLEY, Administrator of VICTORINE A. FARLEY, deceased, v. WILMINGTON AND NEW CASTLE ELECTRIC RAILWAY COMPANY, a corporation of the State of Delaware. JOHN P. FARLEY v. WILMINGTON AND NEW CASTLE ELECTRIC RAILWAY COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

June 24, 1902

Superior Court, New Castle County, May term, 1902.

ACTIONS ON THE CASE (Nos. 28 and 29, respectively, November Term 1900).

The facts appear in the charge of the Court.

Verdict (in No. 28) for the plaintiff for $ 50. Verdict (in No. 29) for the defendant.

Walter H. Hayes for plaintiff.

Saulsbury Ponder and Curtis for defendants.

LORE C. J. and GRUBB and PENNEWILL, J. J., sitting.

OPINION

LORE, C. J., charging the jury:

Gentlemen of the jury:--The plaintiff in the above stated two cases claims that on the second day of July, 1900, while Victorine A. Farley, the wife of the said John P. Farley, the plaintiff, was crossing the railway of the defendant in the public highway at Pyle's Crossing in New Castle Hundred in this county, she was injured through the negligence of the defendant company.

That at that time, while with due care on her part, she was riding with one Horace P. Adams, as a gratuitous passenger, with him in his carriage, drawn by his horse, under his management and control, when a trolley car of the defendant company, running at a high and dangerous rate of speed, negligently, and without ringing the gong or bell or giving any warning, ran into the carriage in which she was riding, threw her out upon the ground with great violence; whereby she was bruised and injured, and suffered therefrom up to the time of her death.

The defendant company claims that the accident was not caused by its negligence, but by that of the said Victorine A. Farley and of the said Adams, in crossing the said railway without stopping, listening or looking.

The first of the two suits was brought by the husband and wife in her lifetime, to recover damages for her pain and suffering caused by the accident.

The second was brought by the husband alone, to recover for the loss of the society of his wife and her services and assistance in the management of his domestic affairs.

At the instance of the parties hereto, these two cases are tried together.

They are both based upon the negligence of the defendant company. If there was no such negligence, the plaintiff cannot recover in either case.

Such negligence is never presumed, but must be proved, and the burden of such proof rests upon the plaintiff.

The rules of law governing the use of the public highway in such cases have been well stated in Adams vs. the defendant company, in a case growing out of the same accident, and heretofore tried at this term of court, and are as follows:

"The defendant had a right to use the public highway, at the place and time of the accident, in common with other travelers and persons who saw fit to use it in vehicles drawn by horses, or otherwise. The public, as well as the defendant company, were entitled to use said highway. The electric cars of necessity could use only those parts of it covered by their tracks inasmuch as such cars move only upon their tracks within fixed limits. Within those lines the right of the company is superior to that of other users, and must not be unnecessarily interfered with or obstructed.

" Brown vs. W. C. Ry. Co., 17 Del. 332, 1 Penne. 332, 40 A. 936; Price vs. Charles Warner Co., 17 Del. 462, 1 Penne. 462, 42 A. 699.

"In using the highway all persons are bound to the exercise of reasonable care to prevent collisions and accidents. Such care must be in proportion to the danger of the peculiar risks in each case. It is the duty of the company to provide competent and careful motermen and servants; to see that they use reasonable care in operating the cars; that the cars move at a reasonable rate of speed; that they 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 accident; and that proper warning be given of the approach of the car at a crossing on the public highway.

"There is a like duty of exercising reasonable care on the part of the traveler. The company and traveler are both required to use such reasonable care as the circumstances of the case demand --an increase of care on the part of both being required where there is an increase of danger. The right of each must be exercised in a reasonable and careful manner, so as not unreasonably to abridge or interfere with the right of the other.

"As was said by the Court in the case of Brown vs. Wilmington City Railway Company, 'We are not prepared to lay down any absolute rule, as to what precise acts of precaution are necessary to be done or left undone, by persons who may have need to cross electric railways. Such acts necessarily must depend upon the circumstances of each particular case. The degree of care differs in different cases. Greater care is necessary in crossing a road where the cars run at a high rate of speed and close together, than where they run at less speed and remote from one another. In like manner where the view at the crossing is obstructed, or in a neighborhood where there is much noise and confusion, greater care is necessary than in places where the view is unobstructed and with quiet surroundings. In like manner a railway company is held to a greater caution in the more thronged streets of the densely populated portions of the city than in the less obstructed streets in the open or suburban parts. From these illustrations, manifestly the care to be used depends largely upon the circumstances of each case. It would, therefore, be difficult, if not dangerous, to lay down any inflexible rules.'

"The general...