Leishman v. Brady

• Decision Date: 20 December 1938
• Citation: 3 A.2d 118,39 Del. 559
• Court: Delaware Superior Court
• Parties: WILLIAM LEISHMAN v. WILLIAM BRADY, JR., and MILTON CAMPBELL

3 A.2d 118

39 Del. 559

WILLIAM LEISHMAN v. WILLIAM BRADY, JR., and MILTON CAMPBELL

Superior Court of Delaware, Sussex County

December 20, 1938

Superior Court for Sussex County, Action on the Case, No. 11 June Term, 1938.

Case heard on demurrer to the plaintiff's declaration.

The defendants were sued as joint tort feasors, and the plaintiff's declaration contained three counts, each of which, in substance, alleged:

That on January 12th, 1938, the plaintiff was operating his Chevrolet automobile in a northerly direction on the Governor-Printz Boulevard, near Holy Oak, in New Castle County, Delaware that on the same day, at the same time and place William Brady, Jr., one of the defendants, by and through his agent William Morgan, was operating a Plymouth Sedan in a southerly direction; that on the same day and at the same time Milton Campbell, one of the defendants, was operating his LaSalle automobile on the Governor-Printz Boulevard in a northerly direction, immediately in the rear of the Chevrolet automobile driven by the plaintiff, and in the same direction; that the automobiles of the plaintiff and the defendant, William Brady, Jr. were traveling in opposite directions, and as they approached a point on the said boulevard where they must pass, the automobile of the said defendant, William Brady, Jr., was suddenly, negligently and carelessly pulled directly across the said boulevard into the north-bound traffic lane of said boulevard, and directly into the path of the automobile driven by the plaintiff, so that the automobile of the said William Brady, Jr. collided with and struck the front end of the automobile of the plaintiff and that immediately thereafter the automobile of the defendant, Milton Campbell, which was being operated by him in a northerly direction, on the said boulevard, at the time and place aforesaid, immediately in the rear of the Chevrolet automobile of the said plaintiff, was so carelessly and negligently operated by him, without keeping a proper lookout for other cars on the said highway, that it struck with great force and violence the right side of the car driven by the said plaintiff.

The first count, also, alleged:

1. That the negligence of the said defendant, William Brady, Jr., through his agent and servant, William Morgan, consisted in that he then operated his motor vehicle, or Plymouth Sedan, along the said Governor-Printz Boulevard, and in meeting the said plaintiff's Chevrolet automobile, with a wide public highway in front of him, pulled his Plymouth Sedan over to the left side of the road and directly in front of and in the path of the approaching Chevrolet automobile of the plaintiff, in such a manner that there was neither sufficient time nor sufficient space for the plaintiff, by the exercise of reasonable care and caution on his part, to have avoided a collision with the automobile of the said defendant.

2. That the negligence of the said defendant, Milton Campbell, consisted in that, though he saw, or by keeping a proper lookout, could have seen the plaintiff's automobile in a position of danger, to-wit: in the path of the said Milton Campbell's LaSalle Sedan, in time to have avoided colliding with it, by the exercise of reasonable care, nevertheless he did operate the said LaSalle Sedan with great force and violence against the right side of the Chevrolet Sedan of the said plaintiff "which had been struck and brought to a standstill by the collision with the Plymouth Sedan of the said William Brady, Jr., as aforesaid; the collision with the said LaSalle Sedan of the said Milton Campbell taking place immediately after the striking of the said plaintiff's Chevrolet automobile by the Plymouth Sedan of the said William Brady, Jr., as aforesaid".

The first count of the plaintiff's declaration then concluded:

"Wherefore, the said plaintiff saith that by reason of the combined and joint negligence of the defendant, as aforesaid, the Chevrolet automobile of the said plaintiff was struck by the automobile of both of these defendants", and was badly damaged, and the plaintiff injured, etc.

The second count was, also, based on the theory that the defendants were liable as joint tort feasors. The preliminary part of that count was substantially the same as the first count. It, also, alleged, however:

1. That "the negligence of the said defendant, William Brady, Jr., by and though his agent and servant, William Morgan, consisted in this, that he then and there operated his motor vehicle, or Plymouth Sedan, along the said highway, and failed to use reasonable care to avoid a collision between his said Plymouth Sedan and the Chevrolet Sedan, driven by the said plaintiff, after he saw, or, by the exercise of reasonable diligence, should have seen a collision was impending, to-wit: the plaintiff's automobile being directly in the path of the automobile of the said William Brady, Jr., then and there being operated by William Morgan, the agent and servant of the said William Brady, Jr., in time to avoid colliding with it, by the exercise of reasonable care, and then and there did operate the said Plymouth Sedan with great force and violence against the front end of the Chevrolet Sedan of the said plaintiff".

2. "The negligence of the said defendant, Milton Campbell, consisted in this, that he then and there operated his motor vehicle, or LaSalle Sedan, then and there being operated under his care and control, along the said highway, and failed to use reasonable care to avoid a collision between his said automobile and the automobile driven by the said plaintiff, after he saw, or, by the exercise of reasonable diligence, should have seen a collision impending, to-wit: the plaintiff's automobile being directly in the path of the said Milton Campbell's LaSalle Sedan, in time to have avoided colliding with it, by the use of reasonable care, and then and there did operate the said LaSalle Sedan with great force and violence against the right side of the Chevrolet Sedan of the said plaintiff, which had been struck and brought to a stand still by the collision with the Plymouth Sedan of the said William Brady, Jr., as aforesaid, the collision with the LaSalle Sedan of the said Milton Campbell taking place immediately after the striking of the said plaintiff's Chevrolet Sedan by the Plymouth Sedan of the said William Brady, Jr., as aforesaid".

The third count was, also, based on the theory that the defendants were joint tort feasors.

The preliminary allegations of that count were substantially the same as in the first and second counts. In slightly different language, it, also, alleged, however, that "immediately after the striking of the Chevrolet Sedan of the said plaintiff by the Plymouth Sedan of the said William Brady, Jr., the defendant, Milton Campbell, also, owed a duty to the said plaintiff then and there to so operate his motor vehicle as not to endanger the life, safety and property of the said plaintiff, but that the said defendant, Milton Campbell, who was operating his said automobile in a northerly direction at the time of the aforesaid collision, involving the Chevrolet Sedan of the said plaintiff and the Plymouth Sedan of the said defendant, William Brady, Jr. immediately in the rear of the Chevrolet Sedan of the said plaintiff was unmindful of his duty to so operate his motor vehicle as not to endanger the life, property and safety of the said plaintiff in this behalf in that he did negligently and carelessly operate the said LaSalle Sedan, which he was then driving, so that the LaSalle Sedan of the said defendant, Milton Campbell, at the time and place aforesaid, was operated by the said Milton Campbell, who failed to use reasonable care to avoid a collision between his said automobile and the automobile driven by the said plaintiff, after he saw, or, by the exercise of reasonable diligence, should have seen a collision was impending, in time to have avoided a collision by the use of reasonable care, and by reason of such failure to use reasonable care the LaSalle Sedan of the said defendant, Milton Campbell, collided with great force and violence against the right side of the Chevrolet Sedan of the said plaintiff * * *".

That count further alleged: "The negligence of the said defendants, Milton Campbell and William Brady, Jr., by and through his agent and servant, William Morgan, consisted in this that they then and there operated their motor vehicles being a LaSalle Sedan and a Plymouth Sedan respectively, along the said Governor-Printz Boulevard, and failed to use reasonable care to avoid a collision between their said motor vehicles and the automobile driven by the said plaintiff, after they saw, or, by the exercise of reasonable diligence, should have seen a collision was...