Gray v. Pennsylvania Railroad Company

• Decision Date: 31 January 1927
• Citation: 33 Del. 450,139 A. 66
• Court: Delaware Superior Court
• Parties: MIRIAM E. GRAY, Administratrix c. t. a. of John G. Gray, late of Wilmington, Delaware, deceased, v. THE PENNSYLVANIA RAILROAD COMPANY, a corporation existing under the Laws of the State of Delaware

139 A. 66

33 Del. 450

MIRIAM E. GRAY, Administratrix c. t. a. of John G. Gray, late of Wilmington, Delaware, deceased, v. THE PENNSYLVANIA RAILROAD COMPANY, a corporation existing under the Laws of the State of Delaware

Superior Court of Delaware, New Castle County

January 31, 1927

Superior Court for New Castle County, No. 103, May Term 1925.

Action on the case for the alleged negligent act of the defendant in causing the death of John G. Gray and demolishing his automobile (in which he was then driving) at a railroad crossing in the Town of Bridgeville, shortly after ten o'clock on the night of November 27, 1924.

At the first trial, George L. Townsend, Jr., Esq., an attorney at law, of Wilmington, was produced as a witness by the plaintiff. Before any questions were asked him, Mr. Gray attorney for the defendant, pursuant to his request, was permitted to examine Mr. Townsend with respect to whether he had participated in the preparation of the case on behalf of the plaintiff and whether he had any interest in the result of it. He contended that under the rule long established in this State it was contrary to public policy to permit such a witness to testify.

"Q. You went down to Bridgeville with Mr. Curley and the photographer to secure photographs for this case?

"A. I did.

"Q. Have you had any part in the preparation of this case?

"A. Aside from a conference with Mr. Curley I have not.

"Q. A conference on the subject of photographs?

"A. That and other matters.

* * * *

"By Judge Richards:

"Q. Were your conferences with Mr. Curley for the purpose of assisting in the preparation of this case?

"A. That is rather difficult to answer; we had a number of conferences about the trial of this case and made several trips to Bridgeville, Delaware, together.

"Q. Did the conferences have to do with the preparation of this case?

"A. I hardly know how to answer that question. Mr. Curley has not taken me into his confidence at all as to his method of trying this case.

"By Mr. Gray:

"Q. Do you remember sending for Mr. Hackett, the claim agent for the defendant?

"A. Yes."

Mr. Gray, attorney for the defendant, then contended that it appeared from the above testimony of Mr. Townsend that he was not qualified to testify as a witness in this case. He cited Wallace v. W. & N. R. R. Co., 8 Houst. 529, 18 A. 818, Pritchard v. Henderson, 3 Penn. 128, 50 A. 217, and the unreported case of Heldmeyer v. Manlove, decided by Chancellor Curtis.

Mr. Curley, attorney for plaintiff, stated that he merely proposed to examine Mr. Townsend with respect to certain formal matters that did not relate to the merits of the case, and contended that he should be permitted to testify to such matters.

Verdict for defendant.

Charles F. Curley (of Saulsbury, Curley and Davis) for plaintiff.

Andrew C. Gray (of Ward, Gray and Ward) for defendant.

PENNEWILL, C. J., HARRINGTON and RICHARDS, J. J., sitting at the first trial, which resulted in a disagreement of the Jury. PENNEWILL, C. J., and HARRINGTON, J., sitting at the second trial, which resulted in a verdict for the defendant.

OPINION

RICHARDS, J.

We overrule the objection. This question is controlled by Real Estate Trust Co. v. Wilmington & New Castle Electric Ry. Co., et al., 9 Del. Ch. 99, 77 A. 828, which held that one of the solicitors for the complainant might testify that, in accordance with the terms of the mortgage, he gave a written notice demanding the payment of interest and the installments on the sinking fund then due, before starting foreclosure proceedings on such mortgage. ^[1]

Mr. Townsend, in response to questions by the attorney for the plaintiff, then testified to certain details with respect to the position of the camera when certain pictures, showing the scene of the accident, were taken by a third person, but in his presence.

Etta Gray Jones, a witness produced by the plaintiff at the first trial, was then asked by Mr. Curley:

"Q. Was John G. Gray familiar with the crossing in question (the Market street crossing at Bridgeville) after dark on November 27th, 1924?"

Mr. Gray, attorney for the defendant, objected to the question, contending that whether John G. Gray was familiar with the crossing in question was the only thing that was material, and that it was improper to add the words "after dark" to the question.

RICHARDS, J. We think the point is well taken and therefore sustain the objection.

"Q. Do you know whether John G. Gray, on the night of November 27, 1924, prior to the accident, saw a watchman at that crossing (the Market street crossing at Bridgville) whose duty it was to warn travelers of the approach of trains?"

Mr. Gray, attorney for the defendant, objected to the question because it was not confined to the exact time of the accident and contended that there was no legal duty on a railroad company to maintain a watchman at a crossing for the full 24 hours of each day because it may have maintained a watchman at such crossing during certain portions of the day.

Mr. Curley, attorney for the plaintiff, contended that if John G. Gray saw a watchman at this crossing at about six p. m., he had the right to assume that there would be a watchman there shortly after ten p. m. on the same night. In support of this contention, he cited: Martin v. B. & P. R. R. Co., 2 Marv. 123, 42 A. 442; Hooper v. B. & M. R. R. Co., 81 Me. 260, 17 A. 64; Woehrle v. Minn. Trans. R. Co., 82 Minn. 165, 84 N.W. 791, 52 L. R. A. 348; Gregg v. Western Pac. R. R. Co., 193 Cal. 212, 223 P. 553; Corbett v. Hines, 194 Iowa 1344, 191 N.W. 179.

PENNEWILL, C. J. As I understand the argument of the attorney for the plaintiff, the question is not whether the company is bound to provide protection all of the time, but whether, when it does provide it part of the time, such evidence as is now offered is admissible to show the degree of care required of the deceased.

RICHARDS, J. We think the witness can answer if she knows. We, therefore, overrule the objection.

"Q. At what time?

"A. Around six o'clock.

"Q. State whether he was in his car or on foot at the time?

"A. In his car.

* * * *

"Q. State whether, or not, John G. Gray had been signaled by the watchman to stop?

"A. He had."

William T. Jones, a witness produced by the defendant, testified as follows:

"By Mr. Gray:

"Q. On November 27, 1924, you were crossing watchman at Market street in Bridgeville, for the Pennsylvania Railroad, were you not?

"A. I was.

"Q. And you went off duty the night of November 27, 1924, at ten o'clock?

"A. Yes, sir.

"Q. Did any watchman succeed you?

"A. No, sir.

"Q. Was there any watchman there from ten o'clock on, during the night?

"A. There was not.

"Q. Had there ever been any watchman there, at that time, after ten o'clock at night?

"Mr. Curley: I object. The question is not material. This defendant either had a legal duty to maintain a watchman there or it did not, and it is immaterial whether they absented him deliberately, or whether he absented himself through negligence."

RICHARDS, J. We overrule the objection.

For the purpose of having the jury draw an inference that the company ordinarily maintained a watchman at this crossing shortly after ten o'clock at night, at which time Mr. Gray was killed, you have offered testimony that there was a watchman there at about six p. m. on the same night. You have, also, shown that there was no watchman there at the time Mr. Gray met his death.

It is true that this evidence though produced in your primary case, was probably offered, primarily at least for the effect it had on the degree of care required of Mr. Gray, but it also tended to show negligence on the part of the defendant. This evidence is apparently offered for the purpose of rebutting any such inferences against the defendant and we think it is material for that purpose.

"A. There had not."

Pursuant to the offer of Curley, attorney for the plaintiff, the Court admitted in evidence, without objection, the depositions of certain witnesses taken in the City of New York.

"Mr. Curley: The depositions are in evidence, but I do not desire to read the whole of them.

"Mr. Gray (Attorney for Defendant): I object unless Mr. Curley reads all of each deposition.

RICHARDS, J. We think the whole of each deposition should be read, and not mere extracts therefrom."

Mr. Curley then read the direct and Mr. Gray read the cross-examination of the witnesses whose testimony was taken on depositions.

Immediately after the jury had been charged and had retired to deliberate on the case, Mr. Curley, attorney for the plaintiff, stated that the depositions taken on behalf of the plaintiff, had not been handed to the jury when they retired, and contended that they should be treated like any other exhibits and sent to the jury.

Mr. Gray, attorney for the defendant, contended that the depositions were not exhibits, were not offered as such, and should not be sent to the jury.

RICHARDS J. We are of the opinion that the depositions read in this case are not exhibits and we know of no practice by which the jury were entitled to take them with them when they retired to deliberate on the case. We, therefore, refuse the application of the plaintiff.

At the second trial, (January 31, 1927) William J. Louder, a witness for the defendant, on recall, testified as follows:

"By Mr. Gray:

"Q. Did you notice whether or not the electric lamps on the station platform were lighted at the time of this accident?

"A. They were not.

"By Mr. Curley:

"XQ. When did you look at these lamps which you now say were not lighted?

"A. When I walked up there, it was real dark, and I noticed that the lights were not burning.

* * * *

"XQ. On the occasion of June,...