Kyne v. Wilmington & Northern R. Co
| Decision Date | 31 May 1888 |
| Citation | 13 Del. 185,14 A. 922 |
| Parties | ELLA T. KYNE, an Infant, by Her Next Friend, v. WILMINGTON & NORTHERN R. CO |
| Court | Delaware Superior Court |
ACTION on the case to recover damages for a personal injury.
Verdict for the defendant.
Levi C Bird for plaintiff.
Bradford & Vandegrift for defendant.
HOUSTON, J. charging the jury:
Gentlemen of the jury: This action, as you have learned before, is what is commonly called an action on the case, to recover damages for an injury sustained in driving over the road called the Barley Mill Road, in Brandywine or Christiana Hundred, not far from this city, by reason of the alleged negligence of the defendant company in the manner of building the embankment on that road with a view to crossing by the railroad over it.
It is brought by Ella T. Kyne, a minor of tender years, by her next friend Eugene Sayers, against the Wilmington & Northern Railroad Company, for that injury; and in order that I may present fairly to the counsel in the case, and to the jury and to all who may hear me, I think it proper to present to you the points of law which have been propounded and questions which have been propounded by the counsel respectively, on which they ask the charge of the court.
There has been a great deal of conflicting evidence in this case, and it will be of course necessary for the jury to determine--and, in cases of that kind, if it is possible to reconcile the testimony of the different witnesses which conflict with each other, it is the duty of the jury to do so; if they find it impracticable, they must then determine in their best judgment after due consideration of all the facts of the case and the demeanor of the witnesses--their appearance--to which the greatest credit must be given. That is the function of the jury, and one with which the court has nothing whatever to do.
There is also some conflicting law in this case which makes it quite as delicate a duty to be performed by the court as that which will devolve upon you. There is not, however, any great contrariety of opinion between the counsel upon the questions of law which have arisen in the case, but I wish you to distinctly understand, and I want the counsel to understand, that what I have to say with reference to the law in this case will be confined, as far as I am able to confine it, to the points which they have presented; and if the rulings of the court should not be satisfactory, it will be proper to go to a higher tribunal for revision.
It is proper that I should state the points made by the counsel for the plaintiff first, because they were first presented to the court; I will say, however, before proceeding to do that, that the law is well settled by the decisions of the courts of this State, as well as of the courts of England and the courts of the various States of the Union, that when a company or a defendant is sued for an injury alleged to have been the result of negligence on their part, of course the plaintiff assumes the duty of proving to the satisfaction of the jury, by all the evidence which they have heard, that the defendant has been guilty of the negligence alleged. If, however, when it is proven to the satisfaction of the jury, on the part of the defendant, that the plaintiff himself has been guilty of negligence in the matter, which has resulted in the injury complained of, he cannot recover. It is a good defense to the action, and it is immaterial to what extent that negligence may be proven to the satisfaction of the jury, provided there was any negligence on his part which contributed to it. Therefore, if that was all in this case, and the jury should come to the conclusion that the defendant in the first place was negligent as alleged, and also that the plaintiff was negligent, in manner alleged by it, in driving over this road, then there would be very little for the court to say to you; but, if you come to that conclusion, your duty would be to return a verdict for the defendant. However, this goes beyond that, and brings up a very nice question,--brings us to a debatable ground, and one which is contested, and upon which we have conflicting decisions of the courts of other States, but none in ours; because I think I am safe in saying that this is the first time a case of this particular character has been presented for the consideration of the court and jury in this State. The law in regard to negligence, and damages claimed by reason of it, existing in courts of justice, has been advanced by the decisions of the courts, to various degrees. We have had within the last few terms of this court several cases here in which the question arose how far a master might become responsible to his servant, or the person in his employ, by reason of the negligence on his part in supplying him with adequate machinery or implements for his employment; and in which, if there be negligence on the part of the servant in the use of it, proved to the jury, he cannot recover, although the defendant may have been guilty of some negligence on his part which led to it. But I will not give the ramifications of it, and the developments of the law in all its branches on these questions. We now have a case which presents one of another character to us, and that is the higher relation of parent and child. Master and servant first, and parent and child afterwards. This case, therefore, differs very materially from the cases we have had in the courts in the last few terms.
Now, both counsel seem to admit, so far as these propositions reveal their views, that it must be proved on the part of the plaintiff that the defendant was guilty of negligence in the particulars complained of, in order to entitle the plaintiff to recover in the action; then, that if contributory negligence is proven, to the satisfaction of the jury, on the part of the plaintiff in the action, the plaintiff cannot recover. There arises in this case the additional question, supposing there was negligence on the part of the father in the driving of this carriage, with his wife and child, over this road, on that occasion, after dark, on the 15th of October, 1886. That would prevent him from recovering, and the child from maintaining this action. I am sorry I have not had time to give more consideration to the question, but I shall proceed, before I dispose of the case, to announce to you what the conclusion is the court has at present arrived at.
The counsel for the plaintiff ends with this statement,--it is based on the statute of 1869, which prescribes the requirements for constructing railroads across public roads of the county, but more particularly with regard to crossing bridges and crossings,--"that the law of Delaware provides," says the counsel, in the first place, Now, I will say in regard, to that, that the law, though not stated in words, is correctly stated by the counsel for the plaintiff. It has reference to the first section, and that is divided into two paragraphs. Instruction is asked upon the first portion of the first section of the Act,--the Act concerning railroads.
That is very specific; and that is the law by which all railroads are now to be governed and have been and must be governed since the passage of this Act in 1869.
I do not know that I am called upon, or that the court is called upon, in regard to this particular point, to say whether it was the duty of this company to have constructed a tunnel under this Barley Mill Road or not, but still that was suggested. Now I may say to the jury that, as we are at present advised on the subject, the company had ability to act, and if it did not construct a tunnel under this road instead of making a crossing at grade, we feel bound to say to you that if you are satisfied, from the evidence--the engineer's testimony--on the subject, that it could not have been done without having a tunnel so low beneath the ground as to be subject to be flooded, it was a proper consideration for him, and he was not bound (if such was the case, and he was the judge of it) for such cause it was out of the question to construct a tunnel there. This thing of engineering is a great and a very magnificent science, and that is one of the great things in which the genius of engineers is particularly displayed,--that is, in the selection and fixing of a roadbed. It is necessary in certain places that tunnels must be made, and they are made at vast expense; but you must know that if a tunnel had to be made, and, after being made, would be subject to every heavy rain through flooding, it would be utterly useless for the purposes of the company and make the road impracticable as an...
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