Hill v. Day

• Decision Date: 06 June 1938
• Citation: 199 A. 920,39 Del. 400
• Court: Delaware Superior Court
• Parties: AARON HILL, an infant by his next friend, Ethel Hill, v. WILLIAM W. DAY

199 A. 920

39 Del. 400

AARON HILL, an infant by his next friend, Ethel Hill, v. WILLIAM W. DAY

Superior Court of Delaware, Sussex County

June 6, 1938

Superior Court for 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 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.

The demurrer sustained.

Meyer Ableman for plaintiff.

Tunnell and Tunnell for defendant.

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

OPINION

LAYTON, C. J.

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 control is meant not alone the ability to guide the machine. The term comprehends the ability to stop it easily and quickly, and its speed is the critical element in determining whether it is under control. Lorah v. Rinehart, 243 Pa. 231, 89 A. 967; Huddy, Automobiles, Vol. 5-6, § 53.

The count avers with particularity the situation confronting the defendant, the unlawful rate of speed, and that by reason of the speed he lost control over his automobile on account of which he drove it into and against the plaintiff. The resulting injury was a natural and probable consequence of the violation of the statute, one which, in the light of attending circumstances, ought to have been foreseen by a person of average intelligence and prudence. "Cause" and "consequence" are correlative terms; and when an act or omission is adapted to produce or to aid in producing a result, and the result follows in natural sequence, that result is a consequence of the act or omission, and the latter the cause of the result. In applying the doctrine of proximate cause, foreseeability of injury by ordinary forecast must be considered, and this is to be determined by considerations of logic, common sense, justice, policy and precedent. See South Atlantic S. S. Co. v. Munkacsy, 7 W. W. Harr. (37 Del.) 580, 187 A. 600; Island Express v. Frederick, 5 W. W. Harr. (35 Del.) 569, 171 A. 181; Stucker v. American Stores Corporation, 5 W. W. Harr. (35 Del.) 594, 171 A. 230. No particular form is required in alleging the causal connection between the negligence charged and the injury. It is sufficient that facts are alleged which, fairly construed, lead with reasonable certainty to the conclusion that the injury resulted proximately from the negligence charged.

It is contended that some averment must be made that the defendant saw, or should have seen, the plaintiff in time to stop his automobile, had he been driving at...