Ford v. Charles Warner Co

• Decision Date: 01 February 1893
• Citation: 15 Del. 88,37 A. 39
• Court: Delaware Superior Court
• Parties: BUTLER FORD v. CHARLES WARNER CO

37 A. 39

15 Del. 88

BUTLER FORD v. CHARLES WARNER CO

Superior Court of Delaware, New Castle County

February 1, 1893

New Castle County, February Term, 1893.

An action on the case to recover damages for injuries. Plaintiff, who was employed to clean street cars, was standing in the street near a car on a spur track, engaged at his work, and was injured by a wagon driven by defendant's servant in such a way that when he was attempting to pass the car the rear wheels of the wagon slid along the track, crushing the plaintiff against the car. The facts are sufficiently stated in the charge of the court.

Clarence A. Forwood, a foreman under whom the plaintiff had worked prior to his being hurt, was asked by Mr. Biggs whether Ford was shamming or whether he was really hurt. Mr. Hilles objected, on the ground that the witness could not give his opinion, not being an expert.

Verdict for the plaintiff for $ 900.

John Biggs, for plaintiff.

William S. Hilles, for defendant.

OPINION

THE COURT,

ROBINSON, C. J.

We think the witness may testify to the fact whether he appeared well or sick; Abbott, Trial Evidence, 600, 649; but, unless the right to put the question is borne out by the decision in Peace's Adm'r vs. Johnson Forge Co. ^[*] (about which there is some doubt) the Court is of opinion that the witness cannot be asked whether or not, in his opinion the plaintiff was shamming.

Dr Joseph Pyle, a witness for defendant, was asked in cross-examination: Who is this gentleman here? referring to Mr. Bradbury, the representative of an accident insurance company, who was sitting in the bar of the court. Do you know him? Objection was made on the ground of irrelevancy. To this it was replied that the object was to show the bias of the witness, because of the relations between him, and the gentleman referred to, who was directly interested in the suit, and in whose presence he was testifying. The Court was of opinion that the plaintiff could show that fact, and overruled the objection.

ROBINSON, C. J. (charging the jury).

This action is what is called in law an action on the case--that is, an action on the plaintiff's case, wherein in his declaration he sets out the particular circumstances of the injury he received and claims damages for that injury.

In this case Butler Ford seeks to recover damages for injuries he received in consequence of the negligent driving of one George T. Johnson, who was at the time in the employment of the defendants and was driving a mortar wagon belonging to them. Butler Ford himself was in the employ of the Wilmington City Railway Company and worked at Union and Lancaster Avenue, or at Front and Union as it is agreed that it shall be called in this case, and his business was keeping the cars clean and attending to the lamps.

The Wilmington City Railway Company is a corporation of this City and State, having a right to lay tracks and run cars along and over the streets of this City. Having single tracks along some of the streets, they have laid what they call "turn-outs"--that is, short side tracks connecting with the main track on which a car can lie by until the one coming in the opposite direction passes it. There was such a turn-out at Front and Union which, if we understand the testimony, was near the terminus on that street.

On the fourteenth of November, 1891, car No. 16 was standing on this turn-out. The horses were attached to it, but the driver was nowhere about. There were two ladies in the car, one of whom was Mrs. Cyrilla Long, a witness in this case. No one knows who the other lady was. Butler Ford had cleaned the inside of the car and was standing on the ground at the side with a little short-handled brush in his hand. When the accident occurred he was either sweeping off the platform or answering some questions as to transfer tickets which the unknown lady had asked him.

While the plaintiff was doing this, George T. Johnson, a driver employed by the Charles Warner Company, the defendant, drove down the street from the direction of Silverbrook. He was driving two horses hitched to a large mortar wagon belonging to the defendant corporation. The wagon, he says, was about twenty-four feet from the tongue to the end of the hind wheel. He had upon it, he says, six mortar boxes, which were empty, and placed crosswise of the wagon, edge up, not flat down, and in one row. These boxes were according to the evidence about ten feet long.

In attempting to pass the car No. 16 as it was lying there upon the turn-out, George T. Johnson drove against the plaintiff as he was standing upon the ground either sweeping the platform or answering the inquiries of the lady in the car. The plaintiff was caught between the car and either the boxes or wagon and injured; and it is for the injuries so received that he seeks to recover damages.

In answer to the plaintiff's claim for damages the counsel for defendant contends that he ought not to be allowed to recover--First. Because as he asserts the driver, George T. Johnson, was not guilty of any negligence in driving the wagon at that time, and that the accident occurred solely because the wagon slipped on the tracks, which, as he claims, could not have been foreseen by him.

Second. Because even though the driver of defendant's wagon might have been guilty of negligence, yet as both the car and plaintiff were unlawfully in the street at the time the accident occurred and plaintiff did not exercise that care in looking up and down the street while he was standing in it which the law requires of him, that he was, therefore, guilty of contributory negligence and cannot recover in this action.

In support of the first branch of his defence the defendant produces the testimony of George T. Johnson, the driver, that in turning out, the hind wheel caught in the track and slid along the track and against the car, and he refers to the testimony of Elwood Stewart, a blacksmith, a witness produced by the plaintiff, who states that "when the wheels turned out too short there was a slipping and it threw the wagon right into the car and caught Butler there."

Gentlemen, if you believe the evidence of these witnesses as to the slipping and that the accident was caused by this slipping, you have further to consider whether defendant's driver used due care and caution in selecting a time to turn out, and whether he did not approach too near the car before he began to do so. If you believe he did not approach the car too closely and was not then and there guilty of any negligence, your verdict should be for the defendant.

But in considering the respective claims of the plaintiff and the defendant you may first consider the positions of the plaintiff and street car, and the wagon driven by George T. Johnson and the respective duties of each party under the circumstances in which they were then placed.

It is true that highways are made for the convenience of the traveling public and that many obstructions to public travel are nuisances, but it is also perfectly well settled that travellers are not bound to keep in motion every instant they are on the road. They have a right to stop temporarily for business or pleasure, provided they do not unreasonably interfere with the rights of others who wish to use the road. The Wilmington City Railway have a right to use the streets of this city for the purpose of laying their tracks and running their cars, and they have all the rights and powers necessary for such a user. They had a right to keep car No. 16 a reasonable time on this turnout so that car No. 10 might pass it, or for any other purpose necessary and proper for using their cars, and we do not think the ordinance cited by the learned counsel deprives them of that right. If the highways are for public convenience, so also are the cars and tracks of the City Railway Company.

But although, if car No. 16 had only been on this turnout for a reasonable time and for a proper purpose--had Butler Ford the further right to stand on the ground for five minutes or over and sweep the platform, and while sweeping to answer the inquiries of the lady in the car without paying any attention to what was coming or going on the street? That is one of the questions for you to decide in this case. You must determine whether the car being rightfully there, he could rightfully and lawfully stand on the ground and brush the platform off. If he had that right, could he do so without keeping watch for passing vehicles; for whoever places himself in a public street is bound to exercise all the care ordinarily required to keep himself from being injured.

Now, as to the duty of George T. Johnson, the driver of the wagon belonging to the Charles Warner Company, he saw the car there and turned out to pass it. It...