Garrett v. Peoples Railway Co.

• Decision Date: 13 March 1906
• Court: Delaware Superior Court
• Parties: WILLIAM R. GARRETT v. PEOPLES RAILWAY COMPANY, a corporation existing under the laws of the State of Delaware

64 A. 254

22 Del. 29

WILLIAM R. GARRETT v. PEOPLES RAILWAY COMPANY, a corporation existing under the laws of the State of Delaware

Superior Court of Delaware, New Castle County

March 13, 1906

Superior Court, New Castle County, February Term, 1906.

ACTION ON THE CASE (No. 136, September Term, 1905) to recover damages for personal injuries to plaintiff and for injury to his automobile alleged to have been occasioned by the negligence of the defendant.

The facts appear in the charge of the Court.

The jury disagreed.

Leonard E. Wales and Herbert H. Ward for plaintiff.

Robert H. Richards for defendant.

LORE C. J., and SPRUANCE and BOYCE, J. J., sitting.

OPINION

BOYCE, J., charging the jury:

Gentlemen of the jury:--This action was brought by William R. Garrett the plaintiff, against the Peoples Railway Company, the defendant, to recover damages for personal injuries to the plaintiff and for injury to his automobile, alleged to have been occasioned by the negligence of the defendant company.

We decline to give you binding instructions to find for the defendant.

The uncontroverted testimony is that on the twenty-first day of May, A. D. 1905, the plaintiff, in company with his brother-in-law, was driving his automobile easterly on Eleventh Street, and that an electric car of the defendant company was going southerly on Orange Street, when a collision occurred between the car and the automobile on Orange Street a few feet south of Eleventh Street, and being near the southwest corner of said streets.

The plaintiff claims that he was driving his automobile with due care and caution, and at a low speed along Eleventh Street as he was approaching Orange Street, and that the collision from which he sustained the injuries complained of was occasioned solely by the negligence of the motorman in charge of the car, which the plaintiff alleges was running at a high and dangerous speed, without due and timely notice or warning of its approach by bell, gong or otherwise, as it came into his view on Eleventh Street, and without proper effort and due diligence to slacken the speed of the car, or bring it to a standstill after he had discovered or should have discovered the presence of the automobile in which the plaintiff was travelling in close proximity to the tracks of the defendant company. And the plaintiff also claims that the car of the defendant company was operated by an incompetent and unskilled motorman.

The defendant claims that the car made its approach to and was running across Eleventh Street at a moderate and proper speed; that due and timely warning of its approach was given by ringing its bell or gong; that the motorman was competent and skilled for the service in which he was engaged; that he exercised due and proper care to avoid a collision with the automobile as soon as he in the exercise of due diligence discovered it approaching the tracks of the defendant company; that neither the collision nor the injury complained of was caused by the negligence of the defendant through its motorman in charge of the car, but was caused solely by the negligence of the plaintiff in not stopping or slackening the speed of his automobile, or in not turning in some other direction than into Orange Street in the direction in which the car was going. Whereby the defendant claims the collision occurred. And the defendant denies any and all liability for the injuries alleged to have resulted from the collision.

It is admitted that the defendant company was at the time of the accident and is now a corporation as alleged in the declaration, and that it was operating the car in question on its railway at the time and place of the accident.

The fact of an accident by which an injury is sustained does not, in itself, if not within the control of the persons charged with causing the accident, establish the fact that the injury was caused by negligence. And there can be no recovery in this case unless the injury to the plaintiff and to his property was occasioned by negligence and that of the defendant company.

Negligence is the failure to use such care as a reasonably prudent and careful person would exercise under similar circumstances.

Negligence on the part of the motorman in charge of the car in question would be the negligence of the defendant company.

Negligence is never presumed, but must be proved and the burden of proving it rests upon the party alleging it.

In this case you are to determine from all the evidence produced before you, considered in connection with the charge of the Court upon the law such as we deem to be applicable to the case, whether there was any negligence that caused the injuries complained of, and whose--whether it was the negligence of the defendant or of the plaintiff, or was the concurrent negligence of both. If the alleged injuries were the result of the negligence of the plaintiff solely, he cannot recover, or if he was, at the time of the accident, guilty of concurrent negligence, he cannot recover. But if the negligence of the defendant caused the accident without the concurrent negligence on the part of the plaintiff at the time thereof, the plaintiff will be entitled to recover.

Eleventh and Orange Streets are public streets of the City of Wilmington. The defendant company has the right to use Orange Street for the movement of its railway cars thereon, and the public have the right to use both of the said streets for...