Lindsay v. Cecchi

• Decision Date: 20 June 1911
• Citation: 26 Del. 133,80 A. 523
• Court: Supreme Court of Delaware
• Parties: NANCY E. LINDSAY and JOSEPH HORACE LINDSAY, her husband, defendants below, plaintiffs in error, v. ANGELO CECCHI, an infant, by RAFFAELO CECCHI, his next friend, plaintiff below, defendant in error

80 A. 523

26 Del. 133

NANCY E. LINDSAY and JOSEPH HORACE LINDSAY, her husband, defendants below, plaintiffs in error, v. ANGELO CECCHI, an infant, by RAFFAELO CECCHI, his next friend, plaintiff below, defendant in error

Supreme Court of Delaware

June 20, 1911

Supreme Court, June Term, 1911.

WRIT OF ERROR (No. 2, January Term, 1911), to the Superior Court for New Castle County. Action by Angelo Cecchi by his next friend, Rafaelo Cecchi, against Nancy E. Lindsay and her husband (No. 74, September Term, 1909) to recover damages for personal injuries alleged to have resulted from the negligent operation of an automobile. Judgment for plaintiff (1 Boyce 185, 75 A. 376), and defendants bring error. Reversed. The facts and questions presented appear in the opinion of the court.

The judgment of the court below is reversed and the case remanded for retrial.

James Saulsbury for plaintiffs in error.

Leonard E. Wales for defendant in error.

CURTIS Chancellor, and Associate Judges BOYCE, CONRAD and WOOLLEY sitting.

OPINION

CONRAD, J.

This action was brought in the court below by Angelo Cecchi, an infant, by his next friend, Raffaelo Cecchi, against the defendants, Nancy E. Lindsay and Joseph Horace Lindsay, her husband, to recover damages for personal injuries which the plaintiff alleges he sustained by reason of being run into knocked down and injured by an automobile driven and operated by Nancy E. Lindsay, one of the defendants on the twenty-fourth day of March, A. D. 1909, near the intersection of Sixth and Tatnall streets in the City of Wilmington.

The plaintiff was a child of about six years of age. The narr. of the plaintiffs alleges among other things as acts of negligence that the driver or operator of the automobile had no proper license as required by the act of assembly in that behalf.

The plaintiff had a verdict, the defendant having excepted to the charge of the court to the jury. The assignments of error are based upon the charge of the court.

The main point raised by the assignments of error is: Did the court below err in its instructions to the jury regarding the law governing the issuing of licenses to persons operating automobiles in this state?

The court below charged the jury in part as follows:

"This action is based on negligence, which has been defined to be the want of ordinary care; that is, the want of such care as a reasonably prudent and careful person would exercise under similar circumstances. With respect to the matter of negligence we may say to you that certain things are, or amount to, negligence in law, whether any active or positive negligence be proved or not. By the laws of this state it is provided that no person shall operate a motor vehicle upon the public streets, roads, turnpikes, or highways of this state unless he had first obtained from the Secretary of State a license. The violation of this law is negligence per se, that is, an act of negligence itself, and renders the wrongdoer liable for an injury resulting from such misconduct.

"The defendants admit that the operator of the machine did not have in her possession at the time of the accident the license required, but insist that she had on the morning of the accident, and prior thereto, made the required affidavit to procure such a license, and had, therefore, complied with the law. We say to you, however, that the mere application for a license, or the making of the required affidavit would not meet the requirements of the statute.* * *

"Now gentlemen, if you believe from the evidence that the injuries to the plaintiff were caused by the negligent running and operation of the machine by Nancy E. Lindsay, one of the defendants, and that the plaintiff was free from any negligence that contributed to the accident, your verdict should be in favor of the plaintiff. Or if you believe that the said defendant was operating the...