Hill v. Day

CourtSuperior Court of Delaware
Writing for the CourtLAYTON, Chief Justice.
Citation199 A. 920
Decision Date06 June 1938
PartiesHILL v. DAY.
199 A. 920

HILL
v.
DAY.

Superior Court of Delaware. Sussex.

June 6, 1938.


199 A. 920
199 A. 921

Action by Aaron Hill, an infant, by his next friend, Ethel Hill, against William W. Day, to recover damages for personal injuries alleged to have been sustained because of the negligence of the defendant in the operation of an automobile. On demurrer to the declaration.

Demurrer overruled as to the first and third counts, and sustained as to the second and fourth counts.

LAYTON, C. J., and SPEAKMAN, J., sitting.

Meyer Ableman, of Georgetown, for plaintiff. Tunnell & Tunnell, of Georgetown, for defendant.

Superior Court, Sussex County, No. 50, February Term, 1938. Demurrer to declaration.

The action was brought to recover damages for personal injuries alleged to have been sustained by the negligence of the defendant in the operation of a motor vehicle.

In each count it was alleged that the plaintiff was a child about four years of

199 A. 922

age, who, in the exercise of all due care and caution for one of his years, experience and intelligence, was in the forenoon of the day, rightfully crossing a public highway in the town of Greenwood; that the highway passed through a closely built up residential district of the town, the buildings thereon averaging less than one hundred feet apart, along which many children lived and which was at the time much used and frequented by children and other pedestrians, walking, running, crossing and being on, over and along the highway, as the defendant well knew.

The first count alleged a duty of the defendant to refrain from operating his motor vehicle at a rate of speed exceeding 25 miles per hour in order that he might have such control thereover as to avoid colliding with the person of the plaintiff; that notwithstanding the duty, the defendant, negligently operated his motor vehicle at a speed of 35 miles per hour, and by reason thereof lost control over his motor vehicle, and drove it against and upon the plaintiff, seriously injuring him.

The second count alleged a duty on the part of the defendant to keep a sharp lookout ahead for persons using the highway, in order that the defendant could bring his motor vehicle to a complete stop thereby to avoid striking the plaintiff; and that the defendant negligently failed to keep a sharp lookout, and by reason thereof negligently failed to bring his motor vehicle to a complete stop and drove it against the plaintiff, thereby causing serious injury to him.

The third count charged a duty on the part of the defendant to operate his motor vehicle slowly in order to avoid endangering the life, limb or property of persons on the highway; but that, notwithstanding, he negligently drove his motor vehicle at a reckless and dangerous rate of speed, towit 35 miles per hour, and by reason thereof drove it against the plaintiff, thereby causing the injuries.

The fourth count alleged a duty on the defendant's part to sound a warning of his approach by blowing a horn; that, notwithstanding, he negligently failed to sound a horn, and thereby failed to warn the plaintiff of his approach in time to permit the plaintiff to avoid being struck by the motor vehicle, whereby the plaintiff was struck by the defendant's motor vehicle and suffered injury.

LAYTON, Chief Justice, delivering the opinion of the Court:

Three objections are urged to the sufficiency of the first count: want of causal connection between the speed of the automobile and the accident; ambiguity, in that it is left in doubt whether the negligence is referable to speed or loss of control; and, if referable to speed, that the allegations amount to a conclusion of law that a speed of thirty five miles an hour necessarily entails loss of control.

The count is based upon Sec. 5621, Rev.Code, 1935. By this statute, a speed in excess of twenty five miles an hour through a thickly settled portion of a town where the buildings average less than one hundred feet apart, is deemed prima facie evidence of unreasonable speed. In a crowded street, common prudence demands that an automobile shall be kept under control in order to avoid or, at least, lessen the danger of collision. The statute reflects only what common experience and observation teach, that the control of a motor vehicle is, to the largest degree, dependent upon its speed. By...

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