Price v. Charles Warner Co

• Decision Date: 06 January 1899
• Citation: 17 Del. 462,42 A. 699
• Court: Delaware Superior Court
• Parties: GEORGE T. PRICE v. CHARLES WARNER CO

42 A. 699

17 Del. 462

GEORGE T. PRICE v. CHARLES WARNER CO

Superior Court of Delaware, New Castle County

January 6, 1899

[Copyrighted Material Omitted]

Superior Court, New Castle County, November Term, 1898.

ACTION FOR DAMAGES (72 to November Term, 1897) for personal injuries to the plaintiff, alleged to have been incurred in a collision between an electric car of the Wilmington City Railway Company, of which the plaintiff was then a motorman and a loaded coal wagon of the defendant, then in charge of one of its drivers, at the intersection of Tatnall and Fourth streets, in the City of Wilmington, on the eleventh day of August, 1897.

The plaintiff contended, and produced evidence tending to show, that on the date of the accident, while acting as motorman on one of the cars of the said company, he was going down quite a steep hill on Fourth street, between West and Tatnall, with a small summer car on which were a number of passengers; that while so coming down with the car under his control, at a slow rate of speed, ringing his gong in the front of the car, when he got a little more than half way down the hill he noticed a coal wagon, loaded with bags of coal, with two horses attached, driven by a colored man, coming up Tatnall street, being the next street east of said West street. That the man who was driving the wagon kept on up Tatnall street until he got nearly to the crossing, the horses having passed over the foot-way crossing Tatnall street at Fourth, when the driver checked the horses, coming nearly to a standstill, the plaintiff meanwhile continuing gradually down the hill, with the car under his control at a moderate rate of speed. That when the plaintiff with the car got within fifteen or twenty feet of the driver of the wagon, the latter suddenly whipped up his horses and drove immediately in front of the car. That the plaintiff had both brakes applied and used every effort to stop the car, but he was then so close to the wagon that it was impossible for him to stop it, and the car consequently struck the wagon somewhere about the front part of the hind wheels, mashing the front of the car in on the plaintiff, breaking both bones of his left leg, striking him upon the chest and producing hemorrhage of the lung. That he was taken to the Homeopathic Hospital, where he remained in a comatose or delirious condition for about ten days, during which time he was spitting blood and the prospects of his recovery were doubtful. That after remaining at the Homeopathic Hospital for six weeks, he was discharged, and subsequently tried to do light manual labor of different kinds, but was unable by reason of his physical condition to perform said work; and that he has continued to suffer from the time of receiving said injuries until the present time.

Evidence was produced tending to show that the car and tracks were in good condition; also, that the driver was slightly intoxicated at the time of the accident.

The defendant produced evidence tending to show that the driver was not intoxicated, and contended that there was no negligence on his part, or if there was any, that the collision was not the result of such negligence, but was occasioned by the negligence or recklessness of the plaintiff in not checking or stopping the car, as the defendant contended the plaintiff could have done, before it came in contact with the wagon.

The driver admitted that he was thoroughly familiar with the scene of the accident, knew that the railway tracks were there, but did not look for or see the car approaching until his horses were upon the tracks, when his attention was called to the approaching car by a man sitting beside him on the wagon. That he then whipped up his horses in order to get over the tracks, but that it was too late to avoid the accident.

The wagon in question was proved to be sixteen feet long and the horses ten feet.

During the course of the trial the following questions were objected to and ruled upon.

After stating that the car was run on schedule time, the plaintiff was asked by Mr. Biggs, if the car was on time at the time of the accident. This was objected to by Mr. Hilles as irrelevant.

SPRUANCE, J.:--

We think the question is a proper one.

Q. "Do you feel that you will ever again be able to do a good day's work, or recover from these injuries?"

Objected to by Mr. Hilles as calling for the opinion of the plaintiff, he not being an expert upon the subject matter inquired about.

Mr. Biggs contended that the plaintiff was the best witness to answer as to his own feelings.

SPRUANCE, J:--

We do not think this question is admissible. It is competent for this plaintiff to describe, as he has with great detail, the injuries, and how they affected his feelings; what pain and suffering he endured, and what he now endures. But he is now asked to go further; not to describe his present condition, nor his condition at any time, but to speculate as to the future. He is not competent to do so. If any one is qualified to do this, it is a skilled physician who has before him all the facts as to the man's injury, and as to his present condition and feelings. This plaintiff cannot speculate as to how the injuries may affect him hereafter.

The witness, Elisha F. Cullen, was asked by Mr. Biggs: "Was this plaintiff, George T. Price, careful at all times to see that his car was in order?"

Objected to by Mr. Hilles as irrelevant, and also that it was attempting to anticipate the defense, there being nothing so far to show that the plaintiff was not a careful man.

SPRUANCE, J.:--

It has been testified that this man was careful in handling the car at the time of the accident. Is it competent now to show that he was habitually careful? We think not, as there has been no attempt on the other side to show that he was not competent. We have not arrived at that point yet. It is material in this case whether the apparatus that he handled was in good condition, and whether on that day he handled it properly, carefully and skillfully. So far, the direct testimony is in the affirmative upon both of these points. It will be time enough to try the question as to whether this plaintiff was habitually careful when the other side attempts to show that he was an incompetent or careless man; but at this stage of the case we think the question is not admissible.

The witness, Harry McCadden, was asked by Mr. Biggs the following question: "You have stated that when you saw the driver put whip to the horses, and, the proximity of the car, that there was bound to be a collision; state, if you please why you say that?"

Objected to by Mr. Hilles, who contended that the witness could not state by whose fault, the collision occurred, that being a question which the jury was empaneled to try, but could only state what he saw.

SPRUANCE, J:--

The question is overruled. The witness can describe the car, the position of the wagon, and what was done by the motorman and the driver, etc. It is for the jury to arrive at a conclusion upon the facts as to how the accident was produced. We think that this question seeks not so much the facts which the witness saw, as the operation of his mind, which is not material in this case.

GRUBB, J:--

I concur in the decision rejecting this testimony. You are practically asking the witness to give his opinion as to the cause of the accident, the question amounts to that. He can state all the facts, from which the jury may infer the conclusion as to the cause of the accident, but he cannot state his opinion or his conclusion from the facts he gives, as to what was the cause of the accident. On that ground I think the question is not admissible.

The plaintiff excepted.

The witness, Robert W. Chambers, after stating that the driver of the defendant's team was arrested and had a hearing before the Municipal Court, upon the charge of reckless driving, was asked by Mr. Hilles in cross examination, "What was done with the charge?"

Objected to by Mr. Biggs, as irrelevant.

SPRUANCE, J:--

It has nothing to do with this case. It is not material what the magistrate did or did not do, upon that charge, and we rule the question out.

The defendant excepted.

William T. Church, a witness for the plaintiff, a locomotive fireman on the Baltimore and Ohio Railroad, and a machinist; after stating that he stood and watched the car in question, coming down Fourth street hill, from West to Tatnall, just prior to the accident, and that in his judgment the car was going about five miles per hour--was asked by Mr. Biggs, "Are you safe in saying you think it did not exceed five miles per hour?"

Objected to by Mr. Hilles, on the ground that the plaintiff was cross examining his own witness.

SPRUANCE, J:--

We think the question is a proper one.

The defendant excepted.

Edward T. Warner, the president of the defendant company was asked by Mr. Hilles the following question: "Have you made any observation of the time it will take a wagon to go from the building line at Fourth and Tatnall streets, that is on the southern side of Fourth street, with the horses on a walk, to the track of the Wilmington City Railway Company?"

Objected to by Mr. Biggs as irrelevant. It must be confined to this particular team, at the time of the accident.

Mr. Hilles contended that all that was necessary, was that the conditions should be similar, and claimed that the conditions were similar, according to the testimony.

SPRUANCE J:--

We do not think that this question is proper. If it was answered in the affirmative it would be immaterial, because it does not lay the foundation for anything. In other words it does not make any difference what Mr. Warner's observations were about the speed with which the horses drawing a wagon would...