Hitchens v. Wilmington And Philadelphia Traction Company
| Decision Date | 25 March 1927 |
| Court | Delaware Superior Court |
| Parties | LINWOOD D. HITCHENS v. WILMINGTON and PHILADELPHIA TRACTION COMPANY and NEAL B. KELLY |
Note.--After deliberating on the case, the jury sent word to the Court that they had agreed on a verdict. When they were brought into the courtroom and the Prothonotary was directed to take their verdict in the regular way, the foreman announced that they had agreed on a verdict in favor of the plaintiff and against the defendant, the Wilmington & Philadelphia Traction Company, for $ 750,00, and in favor of the plaintiff and against the defendant, Neal B. Kelly, for $ 62.00.
The jury was then instructed that the Court could not accept a verdict of that character, and that, if they found against both defendants, the verdict must be joint and the degrees of their negligence could not be apportioned between them. Cooley on Torts, p. 223. The jury again retired to deliberate on the case, and subsequently agreed on a verdict in favor of the plaintiff and against both defendants for $ 812.00.
Superior Court for New Castle County, March Term, 1927.
Sums. Case, No. 102, May Term, 1925.
The plaintiff claimed that he was injured by the joint negligence of the defendants. The testimony produced by him tended to show that while riding as a passenger in an automobile driven by another person in a southerly direction on Market Street in the City of Wilmington on the night of May 17, 1924, the said automobile ran into a pile of sand in the street; that said pile of sand had been placed there by the defendant Neal B. Kelly, and had no lights or other warning signals on it at the time; that almost immediately after said automobile hit the sand pile it was struck by a trolley car owned and operated by the defendant, the Wilmington & Philadelphia Traction Company; that said trolley car was not stopped by the motorman in a reasonable and proper distance, but negligently pushed the said automobile down the street for a distance of from 75 to 100 feet; that said automobile finally broke loose from said car and shot across the street to the east side thereof, turning over and injuring the plaintiff.
The defendant, Kelly, admitted that he had placed the pile of sand in question in the street, but claimed that he had done so pursuant to permission from the proper city authorities and that due and proper warning of the danger arising therefrom was given by red lanterns which were on the sand pile and were lighted at the time the plaintiff was injured.
The defendant, the Wilmington & Philadelphia Traction Company, denied any negligence on its part, claiming that the automobile in which the plaintiff was riding suddenly crashed into its trolley car and then shot across the fender on the front end of such trolley car; it further claimed that the trolley car in question was then being operated at a speed of from 15 to 20 miles per hour, and that it was stopped as soon as it was possible to do so, namely, in a distance about equal to its length.
William W. Knowles, W. Thomas Knowles, and Wilbur L. Adams for plaintiff.
Andrew C. Gray (of Ward, Gray & Ward) for defendant, Wilmington and Philadelphia Traction Company; Philip L. Garrett for defendant, Neal B. Kelly.
OPINION
HARRINGTON, J. charged the jury in part as follows:
It has been held in this state that the testimony of witnesses who swear positively that they heard or saw a warning of danger is of more weight than the testimony of those who merely swear that they did not hear or see such warning; but the testimony of witnesses who swear positively that there was no warning given is of as much weight as the testimony of those who swear that they heard or saw the warning claimed to have been given. [1] * * *
There are two defendants in this action. As we have already stated, the basis of this action is negligence, and in order for the plaintiff to recover he must show to your satisfaction by the preponderance of the evidence that the negligence which caused his injuries was the negligence of both defendants jointly, or of one of them.
The plaintiff alleges and claims that both defendants were negligent at the time that he was injured. Both defendants deny, however, that there was any negligence, whatever, on their parts, either jointly or severally. In Atlantic & Pacific R. Co. v. Laird, 164 U.S. 393, 17 S.Ct. 120, 41 L.Ed. 485, the Supreme Court of the United States said:
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