Greenplate v. Lowth

• Citation: 39 Del. 350,199 A. 659
• Court: Delaware Superior Court
• Decision Date: 13 April 1938
• Parties: MARY JANE GREENPLATE v. ERNEST R. LOWTH

199 A. 659

39 Del. 350

MARY JANE GREENPLATE v. ERNEST R. LOWTH

Superior Court of Delaware, New Castle County

April 13, 1938

Superior Court for New Castle County, Action on the Case for Negligence, No. 75, January Term, 1937.

Case heard on motion for a new trial and in arrest of judgment.

This action grew out of a collision between a State Highway truck driven by Lowth, the defendant, with an automobile in which Mrs. Greenplate, the plaintiff, was riding, on June 15th 1936. That automobile was being driven by the plaintiff's minor son, but he was driving it for her, on her business and, therefore, as her agent.

The collision took place near Newark, at the intersection of the Polly Drummond Hill Road with a road leading towards Milford Cross Roads by a farm owned by one Dr. Stein, of Wilmington, and which road was, therefore, designated in the testimony as the Stein Road.

The Polly Drummond Hill Road ran about north and south and the so-called Stein Road ran about east and west. On the north side of the Stein Road, and the west side of the Polly Drummond Hill Road, there was a high bank and hedge, so that the view of travellers on both roads was obstructed thereby, but both parties were familiar with these obstructions.

At the point of intersection, the so-called Stein Road was shaped like a "Y", with branches or prongs, both toward the north and toward the south, and there was a grass plot between the two prongs of that road forming a hump about six inches above its level. Each branch of the "Y" was about 14 feet wide, and at the point of intersection the Polly Drummond Hill Road was, also, about 14 feet wide. At the time of the collision, the Greenplate car was being driven in a southerly direction on the Polly Drummond Hill Road, and the defendant's truck had turned into that road from the Stein Road, intending to drive thereon in a northerly direction. In making the turn, the defendant drove his truck on the northern prong of the Stein Road, and next to the bank, on the north, or his left side of that road. He claimed that he drove his truck on that side of the Stein Road in order to make the turn into the Polly Drummond Hill Road. So far there was no material dispute as to the facts.

There was evidence tending to show that when the plaintiff's car was about 10 feet from the intersection, without any warning of its approach, the defendant's truck suddenly shot out of the Stein Road into the Polly Drummond Hill Road, and that, though the car in which the plaintiff was riding was turned sharply to the left, it was impossible to prevent it from being hit by the truck. The defendant denied this, and on the other hand claimed that when he reached the road intersection he stopped his truck and looked for approaching cars; that he neither heard nor saw any car approaching on the Polly Drummond Hill Road on the north; that he then drove his car slowly into that road; that when the right front wheel of his truck was near the center of the road he saw the plaintiff's car approaching from the north, and immediately stopped his truck; that the plaintiff's car was approaching the intersection at the rate of about 25 miles an hour; that it turned to the left and ran up the bank on the east side of the Polly Drummond Hill Road and around the front of his truck; and finally turned over; that the speed of that car was such that in passing in front of his truck it bent a heavy fender on the right side of the truck to such an extent that it punctured the tire on the right front wheel.

At the close of the evidence, the plaintiff requested the court to charge the jury as follows:

1. "It is admitted by the defendant that in operating his truck at the entrance of the Stein Road and the Polly Drummond Hill Road, he drove his said motor vehicle or truck to the left of the center of the north fork of the Stein Road, as it entered the Polly Drummond Hill Road, and thereby crossed the intersecting medial lines of the Polly Drummond Hill Road and the Stein Road. Such admission involves the violation of the statute of this State, which requires the operator of a motor vehicle to operate his automobile to the right of the center of any highway, when making a turn into another highway, and if you believe from the evidence in this case that by so operating his motor vehicle the defendant caused the accident, your verdict must be for the plaintiff."

2. "It is admitted by the defendant that, in operating his motor vehicle or truck, when making the turn from the Stein Road onto the Polly Drummond Hill Road, he drove to the left of the center of the Stein Road, and thereby violated a statute of the State of Delaware, which provides that when the operator of a car makes a turn from one road into another he must pass to the right of the center thereof, and if you believe that such act was the proximate cause of the injuries sustained in this case, and so caused the collision, your verdict should be for the plaintiff."

3. "The violation of any statute of this State is negligence per se."

4. "A plaintiff will not be held guilty of contributory negligence who, in the effort to avoid immediate danger in the exigence of the moment, suddenly, and without time for reflection, puts himself in the way of other perils without fault on his part; and particularly so if the defendant has placed him in such position."

The only prayers presented by the attorney for the defendant that need be considered were:

1. Section 97 of the Motor Vehicle Code of the State of Delaware (Code 1935, § 5635) provides:

"The operator of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection."

If the jury believe that the truck operated by Ernest R. Lowth was in the intersection of the Dr. Stein Road and the Polly Drummond Hill Road first, then the above quoted statute imposed upon the operator of the automobile in which the plaintiff was riding the duty to yield the right of way to Lowth's truck, and failing to do so would be negligence, and the verdict of the jury should be for the defendant.

2. Where there is mutual negligence, that is, negligence on the part of the plaintiff and negligence on the part of the defendant, and when the negligence of each is operative at the time of the accident and enters into and contributes thereto, no action can be sustained therefor.

The jury found a verdict for the defendant, whereupon the plaintiff's attorney moved for a new trial. In support of that motion, he filed numerous reasons, but the only ones that he relied on at the argument were, in substance:

1. That the court, in stating the contentions of the respective parties in the preliminary part of its charge to the jury, failed to state all of the material claims of the plaintiff, based on the facts proved, but fully and fairly stated all the material facts relied on by the defendant; and that the plaintiff's case was prejudiced thereby.

2. That the court committed an error when it charged the jury "The operator of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection. * * * Any violation by the defendant of any of the provisions of the statute amounts to negligence in law, or what is known as negligence per se. * * * Likewise, any violation by the plaintiff of a statute would constitute negligence per se on her part."

3. That the court committed an error when it instructed the jury "If you believe that the defendant's truck entered the road intersection first, he had the right-of-way over the plaintiff's car, and if her injuries were caused in whole, or even in part, by the failure of the driver of her car (of the plaintiff's car) to accord him that right-of-way, your verdict should be for the defendant".

The plaintiff's motion for a new trial is refused.

W. Thomas Knowles for plaintiff.

William S. Potter (of Ward and Gray) for defendant.

HARRINGTON J., sitting.

OPINION

HARRINGTON, J.

The prayers of the plaintiff's attorney for instructions to the jury at the trial precede this opinion. From them it appears that the only instructions asked for related:

1. To his claim that when the defendant approached the intersection and drove into the Polly Drummond Hill Road, his truck was on the north side of the Stein Road, next to the bank, and, therefore, on the left of the center line of that road, in violation of the provisions of Section 97 of the Motor Vehicle Act, Code 1935, § 5635, and if, by so operating his truck, he caused the collision, the verdict should be for the plaintiff.

2. To the general rule, though without explanation or qualification, that "the violation of any statute of this State is negligence per se".

3. To the limitations on the general rule of law, relating to contributory negligence when a person is faced with a sudden danger, particularly when such danger is without fault on his part.

With the possible exception of the first prayer, all of these prayers, therefore, merely related to general rules of law, and none of them were so phrased as to apply to the alleged facts of the particular case.

Apparently, it is not denied that all of these requested instructions were substantially covered by the court when the jury was charged.

But the plaintiff's attorney now claims:

1. That the court, in stating the contentions of the respective parties in the preliminary part of its charge, merely referred to the plaintiff's contention that at the time of the collision the defendant was driving his truck next to the bank on the north, and left side of the Stein Road; that this was only one of the plaintiff's contentions, based on the evidence, and, though the trial judge stated the defendant's claims with great...