Nailor v. Maryland, Delaware And Virginia Railway Company, a Corporation of State
| Decision Date | 24 April 1916 |
| Citation | 97 A. 418,29 Del. 145 |
| Court | Supreme Court of Delaware |
| Parties | MARY A. NAILOR, widow of DAVID B. NAILOR, deceased, v. MARYLAND, DELAWARE and VIRGINIA RAILWAY COMPANY, a corporation of the State of Delaware |
[Copyrighted Material Omitted]
(February 17, 1915.)
Caleb E. Burchenal and Daniel J. Layton, Jr., for plaintiff.
Charles S. Richards and Charles W. Cullen for defendant.
Superior Court, Sussex County, February Term, 1915.
ACTION ON THE CASE, No. 34, February Term, 1914.
Action by Mary A. Nailor, widow, against the Maryland, Delaware and Virginia Railway Company for the death and loss of her husband. When the plaintiff rested, counsel for defendant moved for nonsuit on the ground of contributory negligence on the part of the deceased, claimed to have been shown by plaintiff's testimony. Motion refused. Verdict for plaintiff. Defendant brings error. Affirmed.
The facts are stated in the charge to the jury of RICE, J., in the Superior Court:
This action was brought by Mary A. Nailor, widow, against the Maryland, Delaware & Virginia Railway Company, the defendant to recover damages for the death of her husband, David B Nailor, occasioned by the collision of an automobile operated by the said David B. Nailor, and a locomotive and train of cars operated by the defendant company. The plaintiff alleges that the defendant so carelessly and negligently ran its train at a place in Broadkiln Hundred, this county, where its tracks cross the public road at Lofland's Brickyard, that the train and the automobile in which the husband was riding, collided.
The plaintiff claims that on Sunday, July twentieth, about half-past six in the evening, David B. Nailor was running his automobile along the public highway in a northerly direction, and as the automobile approached the railroad crossing at Lofland's Brickyard it was impossible for him to see defendant's locomotive and train of cars approaching the crossing from the east, by reason of a high bank and field of corn on the easterly side of the highway, which bank and field of corn obstructed the view of travelers on the highway, up to a point a few feet distant from the railroad tracks; that the defendant company did not give due and timely notice or warning of the approach of its train to the crossing and by reason of the defendant's negligence in this respect, the automobile and train collided, and as a result of the collision, David B. Nailor was killed.
The plaintiff also claims that, at the time of the collision, David B. Nailor was exercising proper care and caution in looking for the railroad crossing and in all other respects.
The defendant company denies that the collision was caused by any negligence or want of care on the part of its servants. The defendant claims that at the time and place of the accident its train was run in a careful and prudent manner and that reasonable and lawful notice or warning of the approach of its train to the crossing in question was given to travelers on the highway. The defendant further claims that David B. Nailor proceeded along the highway and approached the crossing in a careless manner without making reasonable use of his senses of sight and hearing to ascertain the presence of an approaching train.
In an action of this kind it is necessary that the plaintiff should both allege and prove defendant's negligence, and the plaintiff cannot recover until she has shown to your satisfaction, by a preponderance of proof, that is, the greater weight of evidence, that the negligence of the defendant was the cause of the death of David B. Nailor. The burden of proving negligence on the part of the defendant rests upon the plaintiff.
Negligence has been defined as the failure to use such care, prudence and vigilance as a reasonably prudent person, under the peculiar circumstances of the case, would exercise to preserve himself from being injured. There is no presumption of negligence, either on the part of the deceased or on the part of the defendant, from the mere fact that there was a collision of the train and the automobile.
Whether there was any negligence, at the time of the collision, and whose, you must determine from all the facts and circumstances of this case as disclosed to you by the testimony of the witnesses.
If it shall appear to your satisfaction that David B. Nailor was negligent, and said negligence contributed in any degree to or entered into the accident, he was guilty of contributory negligence, and even though the defendant company may have been negligent on its part, yet if the negligence of the deceased contributed to or entered into the accident at the time of the collision; that is, if the negligence of David B. Nailor and the negligence of the servants of the defendant in charge of the train were operating at the time of the accident, entered into and produced it, the plaintiff in this action cannot recover. For where there is mutual negligence, and the negligence of each is operative at the time of the accident, no action can be sustained therefor.
The plaintiff, however, would be entitled to recover notwithstanding there had been some negligence on the part of the deceased, if it was the negligence of the defendant alone that was the proximate or immediate cause of the accident. A person will not be held guilty of contributory negligence who, in the effort to avoid immediate danger, in the exigency of the moment, suddenly and without time or opportunity for reflection, puts himself in the way of other perils without fault on his part, and particularly so if the defendant has placed him in such position. It is an established rule of law that when one is required to act suddenly and in the face of imminent danger, he is not required to exercise the same degree of care as if he had time for deliberation. The question under such circumstances is not whether the person acted in that way which in the light of after events appeared to be the one most likely to have avoided the danger, but is whether he acted as a person of ordinary prudence and discretion would have acted under like conditions.
In determining whether the deceased was at the time of the accident exercising reasonable care and caution you may consider the ease or difficulty of seeing an approaching train, any warning or notice that may have been given, or the want or absence of any warning or notice of the approaching engine and car, and any and all other facts, circumstances and conditions shown by the evidence to have been existing at the time of the accident bearing upon the point.
The burden of establishing contributory negligence on the part of the deceased, in an action like the present one, when it is relied upon as a defense, rests upon the defendant.
If the operator of an automobile along a public highway knew or had reason to know that the highway crossed a railroad in the immediate vicinity, without knowing the location of the crossing of the public road and the railroad, he must proceed on his way at a reasonable rate of speed and in a reasonably careful manner, making use of his senses to ascertain the location of the crossing.
If under such circumstances he does not proceed along the road as a reasonably prudent man would have done under all the circumstances and a collision occurs between the automobile and a passing train, he would be guilty of contributory negligence.
If a traveler knew or by the reasonable use of his senses might have known of the presence of a railroad crossing, drive up to and upon the same, not only without at least looking, but without listening to ascertain if any cars are approaching, and a collision and injury or death occurs to him from a passing train, which would have been prevented had the traveler exercised the proper and ordinary prudence, care and caution mentioned, such traveler would be guilty of contributory negligence, and recovery could not be had from the railroad company for such injury or death. When the view at the crossing is obstructed, greater care is necessary than in places where the view is unobstructed. It is likewise the duty of the defendant, in the movement of its trains over its tracks across a public highway, to exercise reasonable care and diligence to warn travelers upon such highway of the approach of its trains in order to prevent accidents at such crossings, and if there are obstructions in and about such crossings which prevent a train of cars from being seen as a traveler upon the highway approaches the crossing, the degree of care required is measured according to the liability of danger at such crossing.
The law regards a railroad crossing as a place of danger. If a person knew or should have known of the presence of such a crossing, its very presence is notice to the person approaching or attempting to cross it, of the danger of colliding with a passing train. And because of the danger, there is imposed upon such person the duty of reasonable care and caution, and the reasonable and ordinary use and exercise of his senses of sight and hearing for his own and others' safety and protection, and if he fails to do these things, whatever danger he could thereby have discovered and avoided, he incurs the peril of, if he proceeds, and recovery cannot be had for injury or death arising from such fault.
Although the view of the railroad from the highway is obstructed, that fact does not relieve the traveler from the obligation to look and listen for an approaching train. The very fact of the existence of such obstruction, and particularly when it is known to the traveler, imposes additional care and caution upon him in approaching the track.
The company must use due care in giving timely and sufficient warning of the...
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