Owens v. Wilmington & Philadelphia Traction Co.
| Decision Date | 01 April 1921 |
| Citation | 117 A. 454,31 Del. 475 |
| Parties | HOWARD F. OWENS v. WILMINGTON & PHILADELPHIA TRACTION COMPANY |
| Court | Delaware Superior Court |
[Copyrighted Material Omitted]
Superior Court for New Castle County, March Term, 1921.
SUMS. CASE, No. 179, September Term, 1920.
Action by Howard F. Owens against Wilmington & Philadelphia Traction Company. Verdict for defendant.
The facts appear in the charge of the Court.
PLAINTIFF'S PRAYERS
A street car on approaching a crossing must give proper warning. Adams v. Railroad Co., 3 Pennewill, 512, 52 A. 264; Farley v. Railway Co., 3 Pennewill, 581, 52 A. 543; Bass' Adm'r v. Railway & L. Co., 100 Va. 1, 40 S.E. 100.
What warning is proper must be determined in the light of all circumstances of the particular case. Di Prisco v Railway Co., 4 Pennewill, 527, 533, 57 A. 906.
Negligence on the part of the motorman in charge of the car in question would be the negligence of the defendant company. Garrett v. Railway Co., 6 Pennewill, 29, 31, 64 A. 254; Culbert v. W. & P. Tr. Co., 3 Boyce, 253, 270, 82 A 1081.
Negligence in the legal sense is the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. Tully's Adm'r v. Railway Co., 2 Pennewill, 537, 540, 47 A. 1019, 82 Am. St. Rep. 425; Culbert v. W. & P. Tr. Co., 3 Boyce, 253, 266, 82 A. 1081.
"The term 'ordinary care and diligence,' when applied to the management of electric cars in motion, may be understood to import all the care, circumspection, prudence and discretion which the particular circumstances of the place and occasion require of the servants of the defendant company; and this will be increased or diminished as the ordinary liability to danger, accident and injury is increased or diminished in the movement and operation of such cars." Lenkewicz v. Railway Co., 7 Pennewill, 64, 68, 74 A. 11, 13; Culbert v. W. & P. Tr. Co., 3 Boyce, 253, 267, 82 A. 1081; Eaton v. Wil. City Ry. Co., 1 Boyce, 435, 75 A. 369.
Where the railway approaches the crossing at a steep downgrade, or where the view of the railway from the crossing street is obstructed by buildings or otherwise, greater care is required of the person in charge of the car than when the approach of the railway to the crossing is at or near the grade of the crossing, or where the view of the railway is unobstructed. Snyder v. Railway Co., 4 Pennewill, 145, 149, 53 A. 433; Culbert v. W. & P. Tr. Co. , 3 Boyce, 253, 269, 82 A. 1081.
It is the duty of the company to see that its motormen 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 the accident. Adams v. Railway Co., 3 Pennewill, 512, 514, 52 A. 264; Farley v. Railway Co., 3 Pennewill, 581, 583, 52 A. 543; Di Prisco v. Railway Co., 4 Pennewill, 527, 532, 57 A. 906; Culbert v. W. & P. Tr. Co., 3 Boyce, 253, 268, 82 A. 1081. And as the danger of collision increased, if he, the motorman saw or could see the danger, it was his duty to use all the means in his power to check or stop the car. Railway Co. v. White, 6 Pennewill, 363, 367, 66 A. 1009; Bunyan v. Railway Co., 127 Mo. 12, 29 S.W. 842, 844.
The general rule is none the less certain in approaching a crossing, the motorman in charge of a car is bound to keep a sharp lookout for persons who may attempt to cross the tracks and to have his car under such control that he can stop it upon the appearance of danger and to give such signals as will usually protect travelers who are in the exercise of ordinary prudence. Bremer v. Railway Co., 107 Minn. 326, 120 N.W. 382, 21 L. R. A. (N. S. ) 887 (1909); Railroad Co. v. Robinson, 127 Ill. 9, 18 N.E. 772, 4 L. R. A. 126, 11 Am. St. Rep. 87; Bunyan v. Railway Co., 127 Mo. 12, 29 S.W. 842, 843; Traction Co. v. Lusby, 12 App. D. C. 295; Culbert v. W. & P. Tr. Co., 3 Boyce, 253, 269, 82 A. 1081.
If the jury believe that the motorman in charge of the car which inflicted the injury saw or by the exercise of reasonable care could have seen the plaintiff approaching the crossing and was in a position of imminent danger, and the motorman by the exercise of reasonable care could have stopped his car in a shorter distance than he did stop it, and if he had stopped the car in the distance in which the car was so susceptible of being stopped, the plaintiff would not have been injured, then the defendant is guilty of negligence proximate to the injury and the plaintiff is entitled to your verdict. Adams v. Railway Co., 3 Pennewill, 512, 514, 52 A. 264; Farley v. Railway Co., 3 Pennewill, 581, 583, 52 A. 543; Di Prisco v. Railway Co., 4 Pennewill, 527, 532, 57 A. 906; Bunyan v. Railway Co., 127 Mo. 12, 29 S.W. 842, 843; Nielson v. City of Albert Lea, 87 Minn. 285, 91 N.W. 1113; Culbert v. W. & P. Tr. Co., 3 Boyce, 253, 270, 82 A. 1081.
It is now perfectly settled that the plaintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposed him to the risk of injury, if such injury was more immediately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him. Tully's Adm'r v. Railroad Co., 2 Pennewill, 537, 541, 47 A. 1019, 82 Am. St. Rep. 425; Lenkewicz v. Railway Co., 7 Pennewill, 64, 69, 74 A. 11; Jones v. Belt, 8 Houst. 562, 568, 32 A. 723; Ford v. Warner Co., 1 Marv. 88, 93, 37 A. 39.
The servants in charge of a car should have it under reasonable control and be on the lookout for travelers upon the highway, that they being in the exercise of due care may not be injured.
In going down grade it is the duty of the motorman, in charge of a car, to make the descent at such reasonable speed as not to allow the car to get beyond his control, if he is able to do so. Eaton v. Wil. City Ry. Co., 1 Boyce, 435, 75 A. 369; White v. Wil. City Ry., 6 Pennewill, 105, 113, 63 A. 931; Price v. Warner Co., 1 Pennewill, 472, 42 A. 699.
It is the duty of a railroad company to give timely and sufficient warning, by bell, whistle or otherwise, of the approach of trains, and to run its trains, at a rate of speed proper and reasonable under the circumstances; and if the defendant failed to make use of such usual and appropriate means to warn the deceased at the time and place of the accident it would be negligence on its part. MacFeat's Adm'r v. P. W. & B. R. Co., 5 Pennewill, 52, 62 A. 898.
At some crossings other warnings in addition to the statutory warnings will be required of a railroad under peculiar circumstances or on extraordinary occasions. A railroad Company is required to operate its trains with the care and prudence which the peculiar circumstances of the place reasonably require. Lofland's Brickyard Crossing Cases, 5 Boyce, 150-154, 91 A. 285.
A railroad crossing ordinarily is a place of great danger, and if at the crossing there are obstructions of such a nature that a traveler on the highway approaching the crossing is prevented from seeing an approaching train, or if the peculiar conditions surrounding the crossing are of a nature that a traveler using due care and caution likewise is prevented from hearing the blowing of a whistle on the approaching locomotive, the danger of the crossing is increased, and the degree of care on the part of the railroad to warn travelers on the highway of the approach of trains is correspondingly increased. Lofland's Brickyard Crossing Cases, 5 Boyce, 150-155, 91 A. 285.
DEFENDANT'S PRAYERS
If the jury should find from the evidence that there was mutual negligence--that is, negligence on the part of both the plaintiff and the defendant-- and the negligence of each was operative at the time of the injury complained of, a recovery cannot be had for such injury. If the negligence of the plaintiff entered into the accident and was the proximate cause of the injury even though the defendant were guilty of negligence operating at that time, a recovery cannot be had, for there is contributory negligence, and the law will not attempt to measure the proportion of blame or negligence to be attributed to either party. Gatta (widow) v. P. B. & W. R. R. Co., 2 Boyce, 551, 83 A. 788; Reynolds v. Clark, 5 Boyce, 250, 92 A. 873.
A person approaching a railway crossing with which he is familiar must avail himself of his knowledge of the locality and act accordingly. If as he approaches the crossing his line of vision is unobstructed, it is his duty to look for approaching cars in time to avoid collision with them, and if he does not look and for this reason does not see an approaching car until it is too late to avoid a collision, and he is thereby injured, he is guilty of contributory negligence and cannot recover therefor. When the view of the crossing is obstructed, greater care on the part of the one crossing the same is necessary than in places where the view is unobstructed. Brown v. Wil. City Ry. Co., 1 Pennewill, 332, 40 A. 936; Adams v. W. & N. C. Ry. Co., 3 Pennewill, 512, 52 A. 264; Snyder v. People's Ry. Co., 4 Pennewill, 145, 53 A. 433; Boudwin v. Wil. City Ry. Co., 4 Pennewill, 381, 60 A. 865; Dungan v. Wil. City Ry. Co., 4 Pennewill, 458, 58 A. 868; Di Prisco v. Wil. City Ry. Co., 4 Pennewill, 527, 57 A. 906; Lynch's Ex'rs v. Wil. City Ry. Co., 7 Pennewill, 192, 78 A. 636.
A person approaching a railway track or attempting to cross it is bound to avail himself of his knowledge of the fact that the track is laid in the street or road, and act accordingly and if he approaches the track, or attempts to cross it, he is bound to look for approaching cars, in time, if possible, to avoid collision with...
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