Lenkewicz v. Wilmington City Railway Company

• Citation: 23 Del. 64,74 A. 11
• Court: Superior Court of Delaware
• Decision Date: 13 March 1908
• Parties: ANDREW LENKEWICZ, Administrator of Waclaw Lenkewicz, deceased, v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware

74 A. 11

23 Del. 64

ANDREW LENKEWICZ, Administrator of Waclaw Lenkewicz, deceased, v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

March 13, 1908

Superior Court, New Castle County, March Term, 1908.

ACTION ON THE CASE (No. 58, September Term, 1906) by the father and administrator of Waclaw Lenkewicz, deceased, to recover damages for the death of his said son, alleged to have been occasioned through the negligence of the defendant company it being conceded that the defendant company had double tracks on Maryland Avenue, in the City of Wilmington, to, and a short distance beyond Stroud Street; that the cars of the defendant company pass each other on the Avenue going in opposite directions; also that Waclaw Lenkewicz was a passenger on an out-bound car of the defendant company, and that he got off the car near Stroud Street, and passing in the rear of the car he attempted to cross the in-bound track of the company, whereon another car of the defendant company was approaching in the opposite direction, when he was struck thereby, thrown and violently hurled upon the street and beneath the in-bound car, whereby he received such injuries that he died the same day.

Verdict for plaintiff for six cents.

Philip Q. Churchman and Philip L. Garrett for plaintiff.

Walter H. Hayes and Andrew C. Gray for defendant.

Judges SPRUANCE and BOYCE sitting.

OPINION

BOYCE, J. charging the jury:

Gentlemen of the jury:--Andrew Lenkewicz, the father and administrator of Waclaw Lenkewicz, deceased, seeks, by this action, to recover from the Wilmington City Railway Company damages for the death of his son, which he alleges was occasioned by the negligence of the defendant company, on the fifth day of June, A. D. 1906, in operating one of its electric cars on Maryland Avenue near Stroud Street, in this City.

The declaration filed by the plaintiff contains nine counts. By these counts it is charged in substance that the defendant company negligently and carelessly ran one of its cars (1) at an improper, high, dangerous and unlawful rate of speed; (2) without giving any warning by gong, bell, or otherwise; (3) without due and proper care in the use, management and control of the car so as to avoid running into the deceased while attempting to cross the in-bound track of the defendant company on Maryland Avenue.

It is conceded that the defendant company has double tracks on said Maryland Avenue to and a short distance beyond Stroud Street; and that the cars of the defendant company pass each other on the Avenue going in opposite directions. It is also conceded that Waclaw Lenkewicz was a passenger on an outbound car of the defendant company, and that he got off the car near Stroud Street, and passing in the rear of the car he attempted to cross the in-bound track of the company, whereon another car of the defendant company was approaching in the opposite direction, when he was thrown and violently hurled upon the street and beneath the in-bound car, whereby he received such injuries that he died the same day.

The defendant denies that either it, or its servants in charge of the car were guilty of any negligence or wrong-doing from which the injuries complained of were inflicted, but on the contrary, insists that its servants were, at the time of the accident, in the exercise of reasonable and proper care, and that the accident was occasioned solely by the negligence of the deceased. And it is further contended that immediately before and at the time of the accident, the motorman in charge of the car neither knew nor by the exercise of reasonable care might have known of the presence or perilous position of the deceased.

It is admitted that at the time of the accident, the defendant company operated a line of electric railway along Maryland Avenue in this City at the point where said accident occurred, and that it was duly authorized so to do; and that letters of administration were, subsequently to the death of the plaintiff's intestate and prior to the bringing of this action, duly granted to Andrew Lenkewicz, the plaintiff in this case.

We have been asked to give you binding instructions to find for the defendant. This we decline to do. We submit to you the question whether your verdict should be for the plaintiff or the defendant, after a careful consideration of all the evidence produced before you in connection with our instructions to you.

The defendant had a right to use the public highway, at the time and place of the accident, in common with other travellers and persons who saw fit to use it. The public as well as the defendant company, were entitled to use said highway. In using the highway all persons are bound to the exercise of reasonable care to prevent collisions and accidents. Such care must be in proportion to the danger of the peculiar risks in each case. It is the duty of the company to see that its servants in charge of the cars use reasonable care in operating them; that the cars move at a reasonable rate of speed; that they slow up, or stop if need be, where danger is imminent and could, by the exercise of reasonable care, be seen or known in time to prevent accident; and that proper warning be given of the approach of the car at a crossing on the public highway. There is a like duty of exercising reasonable care on the part of the traveler. The company and the traveler are both required to use such reasonable care as the circumstances of the case...