Louth v. Thompson

• Decision Date: 14 December 1897
• Citation: 17 Del. 149,39 A. 1100
• Court: Delaware Superior Court
• Parties: LOUIS LOUTH and ELLA LOUTH v. JOHN THOMPSON

39 A. 1100

17 Del. 149

LOUIS LOUTH and ELLA LOUTH v. JOHN THOMPSON

Superior Court of Delaware, New Castle County

December 14, 1897

Superior Court, New Castle County, November Term, 1897.

ACTION on the case (No. 250 to Feb. T., 1896,) for injuries alleged to have been inflicted upon the plaintiff, Mrs. Ella Louth by reason of falling through an open cellarway, on Delaware Street, in the City of New Castle, the defendant being the tenant of the premises.

The other facts sufficiently appear in the charge of the Court.

At the trial, Mr. Rodney having proved certain facts as to the accident and its effects upon her and the treatment which she received from her physician at home, and his recommendation that she go to a hospital; asked Mrs. Louth what the charges were to her at the hospital.

Mr Cooper, for the defendant, objected: This being a suit brought by the husband and wife, all expenses for attendance nursing, medicine, doctors bills, loss of service and all things of that nature, are the husband's loss and not the wife's, and it is for him to recover from the defendant those expenses in another action, and they can not be recovered in the present suit.

King vs. Thompson and Wife, 87 Penna. State, 365; Chitty on Pleading, 72; 93 Penna. State, 234; 61 Maryland, 74; 14 Ind. 557; 67 Iowa 508.

Mr. Rodney, for plaintiffs, contended that under the statute law of this State, the wife could make contracts for herself as if were a feme sole; that this hospital expense was contracted by the wife without any knowledge on the part of the husband; that it was an obligation of the wife which she had not yet discharged to the hospital, and that therefore it could be recovered in this action.

The Court, after holding the matter up until the afternoon session, sustained the objection.

The jury disagreed.

John H. Rodney for plaintiffs.

Alexander B. Cooper for defendant.

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

OPINION

LORE, C. J

This question, to my knowledge has previously been before the Court and decided since I have been on the bench. Unquestionably this is an action at common law for injuries. The rule upon the point is very well laid down in 1 Chitty, *73:

"When an injury is committed to the person of the wife during coverture, by battery, slander, &c., the wife cannot sue alone in any case; and the husband and wife must join if the action be brought for the personal suffering or injury to the wife, and in such case the declaration ought to conclude to their damage, and not to that of the husband alone; for the damages will survive to the wife if the husband die before they are recovered. Care must be taken not to include in the declaration by the husband and wife any statement of the cause of action for which the husband alone ought to sue; therefore, after stating the injury to the wife, the declaration ought not to proceed to state any loss of assistance, or expenses sustained in curing her. If the battery, imprisonment, or malicious prosecution of the wife, deprive the husband for any time of her company or assistance, or occasion him expense, he may and ought to sue separately for such consequential injuries."

We think you cannot offer evidence upon that point. Our ruling does not touch anything that goes to show the extent of her injuries, but simply goes to the expenses that were incurred by reason of the accident and for the loss of service to the husband.

At the conclusion of the plaintiff's testimony, Mr. Cooper, for defendant, moved for a non-suit on the ground that the proof disclosed that the plaintiff was guilty of contributory negligence.

LORE, C. J:--

We think the non-suit ought to be refused. You base your motion for non-suit substantially upon the fact that the plaintiff's own testimony shows clearly contributory negligence on her part. We think that is a question for the jury, whether under all the circumstances of this case she exercised such reasonable care as a reasonably prudent person would be required to do in using a public street. While a person has the privilege to extend his cellarway out into the street, it is only for certain uses not to keep it open.

PLAINTIFFS' PRAYERS.

First. Public streets and alleys are presumed to be free from obstructions and holes, and want of care is not to be presumed on the part of one injured by the same.

Barnes vs. Ward, 67 E.C.L. 417; Durant vs. Palmer, 29 N.J.L. 544; McGuire vs. Spence, 91 N.Y. 303; Jennings vs. VanSchaick, 108 N.Y. 530, 15 N.E. 424; Davenport vs. Ruckman, 37 N.Y. 568; Howard Co. vs. Legg, 110 Ind. 479, 483, 11 N.E. 612; Turner vs. City of N. Y., 109 N.Y. 301, 16 N.E. 344.

Second. In case of injury to a stranger by reason of an excavation or hole in the sidewalk adjoining a public road or highway, the tenant of the premises is liable.

Beven on Negligence, 487 and 490; Ray on Negligence, 41 and 108; Picard vs. Smith, 100 E.C.L. 470; City of Lowell vs. Spalding, 4 Cush. 277; Jennings vs. VanSchaick, 108 N.Y. 530, 15 N.E. 424; Durant vs. Palmer, 29 N.J.L. 544.

Third. Persons who without authority make or continue an excavation or opening in a public street or highway for a private purpose are responsible for all injuries to individuals resulting from the highway being less safe.

In this case it is contended the leaving the cellarway open was without authority and brings it within the following cases:

Congreve vs. Smith, 18 N.Y. 79; City of Portland vs. Richardson, 54 Me. 46; Stephani vs. Brown, 40 Ill. 428.

Fourth. Assuming that the right to have an aperture in the highway has been granted by the proper authority, yet the occupier of the premises must use proper precautions to protect travelers from injury by it.

Ray on Negligence, 108; Sherman and Redfield on Negligence, 360 and cases cited.

Fifth. Even if permission be given by the Municipal or proper authorities yet such consent being conditioned upon certain modes of use, if the opening is left unguarded it becomes a nuisance; and negligence of the defendant is established.

Jennings vs. VanSchaick, 108 N.Y. 530, 15 N.E. 424; Sexton vs. Zett, 44 N.Y. 430; Beatty vs. Gilmore, 16 Pa. 463.

Sixth. The plaintiff was only bound to use ordinary care and prudence and was not required to seek her way with eyes to the ground, but had a right to presume that the street was in proper condition.

That the plaintiff was bound only to use such care as an ordinarily prudent person would exercise under like circumstances. That if there was necessity, the plaintiff was entitled to the full width of the public highway unobstructed, and if the jury believe from the evidence, that the plaintiff stepped upon this door (especially where the same was raised but a few inches from the pavement) in the proper prosecution of her journey to escape a crowd, in other words was pressed to the wall, and that the whole transaction was instantaneous, she is not guilty of negligence contributing to the accident.

Beatty vs. Gilmore, 16 Pa. 463; Jennings vs. VanSchaick, 108 N.Y. 530, 15 N.E. 424. Durant vs. Palmer, 29 N.J.L. 544; McGuire vs. Spence., 91 N.Y. 303 at 305.

Seventh. If the verdict should be for the plaintiffs it would be for such reasonable sum as will compensate the plaintiffs for the injuries of the wife, and for her pain and suffering in the past and such as may come in the future resulting from the accident; and for such permanent injuries as from all the evidence the jury may believe she has sustained by the accident.

DEFENDANT'S PRAYERS.

The defendant prayed the Court as follows:

First. The burden of proof is on the plaintiff to show by a preponderance of the evidence, the negligence of the defendant.

Second. The plaintiff was bound to use ordinary care under all the circumstances.

Third. Cellar doors constructed and used under a city ordinance are lawful, and not evidence of negligence per se. They are necessities of city life, and to make defendant liable some positive or culpable negligence in leaving the door open must be shown.

Jones on Neg., Mun. Corp., 149, 150, 184, 188; King vs. Tohmpson, 87, Penna. State, 365; 50 Conn., 530; 40 Ind., 62; 70 Iowa, 193; 144 N.Y.App. 283.

Fourth. The mere accident itself, or the abstract fact of the cellar door being open, is not negligence per se.

Fifth. The defendant was only bound to use reasonable care in using the cellar door for the purposes for which his business required.

3 Houst., 447; 4 Houst., 447 and 489.

Sixth. The greatest negligence on the part of the defendant will not excuse the slightest fault or negligence of the plaintiff. If she was guilty of contributory negligence she cannot recover. If she voluntarily stepped upon the door, she was informed of at least possible danger and did it at her risk.

If there was sufficient light to see, and she did not look and pay attention to where she was going, she is guilty of contributory negligence, or if she could have reasonably avoided the accident in any way.

87 Pa. 365; 71 Iowa, 654; 66 Iowa, 725; 69 Ind., 33; 54 Iowa, 717; 137 Pa. 42.

Seventh. Previous knowledge by the plaintiff of the locus in quo., is evidence of negligence.

44 Hun 44; Beach on Con. Neg. Sec. 36-37.

Eighth. Where one chooses a dangerous way when there is a safe one, and is injured she cannot recover.

61 Iowa, 103; 60 Hun., 77.

Ninth. The plaintiff being a married woman no damage can be recovered except for the actual injury received, only for what is the direct and immediate result of the accident itself.

8 Houst., 450; 67 Iowa, 508; 58 Iowa, 438; 87 Pa. 365.

Tenth. The jury are the exclusive judges of the facts.

LORE, C. J., charging the jury;

Gentlemen of the jury:--This is an action on the case, brought by Louis Louth and Ella Louth,...