Knopf v. Philadelphia, Wilmington And Baltimore Railroad Company

• Decision Date: 12 March 1900
• Citation: 18 Del. 392,46 A. 747
• Court: Delaware Superior Court
• Parties: JACOB KNOPF v. THE PHILADELPHIA, WILMINGTON AND BALTIMORE RAILROAD COMPANY, a Corporation of the State of Delaware

46 A. 747

18 Del. 392

JACOB KNOPF v. THE PHILADELPHIA, WILMINGTON AND BALTIMORE RAILROAD COMPANY, a Corporation of the State of Delaware

Superior Court of Delaware, New Castle County

March 12, 1900

Superior Court, New Castle County, February Term, 1900.

ACTION ON THE CASE (No. 12, February Term, 1898) to recover from the defendant company damages for personal injuries alleged to have been sustained by the plaintiff, and also for injury to his baker wagon, by reason of the negligence of the defendant company, on the second day of June, 1898, at the railroad crossing near Landlith Station in the City of Wilmington.

At the trial the witness, Albert J. Beckley, engineer of the defendant company's train which was alleged to have caused the injury, was asked in cross examination by Mr Hilles: "How did you happen to be running your train at the rate of twelve or fifteen miles an hour in the City of Wilmington?" This was objected to by counsel for defendant, who stated that the witness had already testified that he was running his train twelve or thirteen miles an hour; that an ordinance of the City of Wilmington had been admitted in evidence in the case, which ordinance subjects an engineer to a penalty. The objection therefore was that the witness was not required to answer the question and subject himself to any penalty he may be liable to under the ordinance. Counsel for the plaintiff contended that the question was in direct reply to the examination of the witness by Mr. Gray.

PENNEWILL J.:--

We think the right of a witness to refuse to answer a question on the ground that he may incriminate himself, is one personal to the witness, and can be claimed by himself alone.

The witness thereupon stated in reply to a question by the Court that he did not exactly know what was meant by an answer that would incriminate him, but that he was not afraid to answer the question because it would make him liable to the penalty of the law, and did not decline to answer on that ground.

PENNEWILL, J.:--

We think that admits it.

The witness was further asked by Mr. Hilles what his schedule time was between the City of Wilmington and Landlith Station.

This was objected to by counsel for defendant as irrelevant, because the inquiry should be confined to what speed the train was making at Landlith Station and not what speed it was making at other points.

PENNEWILL, J.:--

The question is, what was the actual rate of speed of this train at the time and place of this accident. We think the question is not admissible.

Verdict for plaintiff for $ 2500.

William S. Hilles and Robert H. Richards for plaintiff.

Andrew C. Gray and Herbert H. Ward for defendant.

LORE, C. J., and PENNEWILL and BOYCE, J. J., sitting.

OPINION

After the presentation of prayers by the respective counsel the Court charged the jury as follows:

PENNEWILL, J., charging the jury:

Gentlemen of the jury:--In this action the plaintiff, Jacob Knopf seeks to recover from the Philadelphia, Wilmington and Baltimore Railroad Company, the defendant, damages for personal injuries to himself, as well as for injury to his wagon; all alleged to have been caused by the negligence of the defendant company on the second day of June, 1898, at the railroad crossing near Landlith Station in this city.

The plaintiff charges that the defendant was negligent, first, in running the train which caused the accident at a high rate of speed; second, in permitting obstructions to remain on the tracks of the company so that the plaintiff was prevented from seeing the approaching train, and third, in not giving timely and proper warning of the approach of the train.

The defendant company contends that it was not guilty of any negligence which caused the injury to the plaintiff; that it, the company, exercised all reasonable and proper care and diligence to prevent the accident, and that the injury was caused by the negligence of the plaintiff. The defendant therefore denies any and all liability for said injury.

With the facts in the case the Court have nothing whatever to do; they are for you alone. You have heard the evidence, and it is now for your consideration and determination,--applying thereto the law as the Court shall declare it to you.

The principles of law applicable to this case have been so clearly settled by the courts of our own State, that we do not consider it at all necessary to look beyond the reported decisions of our courts for the rules to guide us and you in the consideration and determination of the present action.

This suit is based on negligence, and it is proper that we should explain to you what negligence in legal contemplation is. It has been defined to be the want of ordinary care, that is, the want of such care as a reasonably prudent and careful man would exercise under similar circumstances. What constitutes negligence is a question of law for the Court, but whether negligence exists in the particular case, is a question of fact for the determination of the jury. It is for you to determine whether there was any negligence that caused the injury complained of, and if there was, whether it was the negligence of the defendant or the plaintiff. And we say to you that the defendant can be held liable only for such negligence as constitutes the proximate cause of the injury.

Murphy vs. Hughes Bros. & Bangs, 17 Del. 250, 1 Penne. 250, 40 A. 187; Mills vs. Wil. City Ry. Co., 15 Del. 269, 1 Marvel 269, 40 A. 1114.

Negligence is never presumed, but must always be proved; and the burden of proving it rests upon the plaintiff.

With respect to the matter of negligence, we say to you that certain things are, or amount to, negligence in law, whether any active or positive negligence be proved or not. The violation of an ordinance of this city is of itself (per se as we may say) an act of negligence, which, in legal controversy like this, only requires to be proved to render a wrong-doer liable for any injury resulting from such misconduct.

Robinson vs. Simpson, 13 Del. 398, 8 Houst. 398, 32 A. 287; Shearman & Redfield on Negligence, Secs. 13 and 467, and cases cited. 8 Elliott on R. R., Sec. 1095, note 1; Giles vs. Diamond State Iron Co., 12 Del. 453, 7 Houst. 453, 8 A. 368 and 566; Jones vs. Belt, 13 Del. 562, 8 Houst. 562-564, 32 A. 723; Carswell, Admr., vs. Mayor and Council of Wilmington, 16 Del. 360, 2 Marvel 360, 43 A. 169.

In such case, however, the defendant would not be liable unless the violation of the ordinance, to wit, in this case, the excessive speed of the train, caused the injury complained of; nor would the defendant be liable if the injury was caused in any degree by the negligence or careless conduct of the plaintiff. The law does not permit any one to recover damages from another for an injury if his own negligence has contributed thereto, or where by the exercise of reasonable care he could have avoided it.

Murphy vs. Hughes Bros. & Bangs, 17 Del. 250, 1 Penne. 250, 40 A. 187.

Nowhere have we found the law applicable to cases like the present more clearly stated than...