Prisco v. Wilmington City Railway Company
| Decision Date | 15 February 1904 |
| Citation | 57 A. 906,20 Del. 527 |
| Court | Delaware Superior Court |
| Parties | ANGELO DI PRISCO, administrator of ALFONZO DI PRISCO, v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware |
Superior Court, New Castle County, February Term, 1904.
ACTION ON THE CASE (No. 186, September Term, 1903), to recover damages for the death of Alfonzo Di Prisco (a minor eight years of age) by being negligently struck and run over by a car of the defendant company, as alleged in the declaration on West Eighth Street near Lincoln, in the city of Wilmington, on the fourteenth of September, 1903.
At the trial a witness, Lizzie E. Tazewell, was asked by the plaintiff's counsel, among others, the following questions:
Q. Where was the body of the little boy, Alfonzo Di Prisco, when you went around to see it? A. Under the car.
Q. Did you assist in taking the body from under the car? A. Yes sir.
Q. At the time you were helping to take his body out, did the little fellow make any remark? A. Yes, sir.
Q. What remark did he make to you and the other persons there as you were lifting him from under the car and immediately after the car had passed over him?
(Objected to by counsel for the defendant as irrelevant and inadmissible under the decisions of the Superior Court, being after the accident had happened and not a part of the res gestae. Mr. Knowles contended that the question was admissible as a part of the res gestae it being an involuntary exclamation and was a spontaneous utterance of humanity.
It was not contended that the exclamation was made in the presence of any of the defendant company's officers.)
Verdict for plaintiff for $ 1000.
Horace Greeley Knowles for plaintiff.
Walter H. Hayes and George N. Davis for defendant.
This question was raised once before in this trial and we thought then that it was not admissible and so ruled at that time. The question is presented to us now in a different phase from what it was then.
We find in 1 Greenleaf on Evidence, (16th Ed.), Section 162-g, that
It seems to us after having listened to the arguments of counsel, and after a careful consideration of the question now before the court, that it is admissible.
(The defendant excepted.)
A. He said,
The witness was then asked the following questions:
Q. Was he (Alfonzo Di Prisco) a cheerful boy?
(Objected to by counsel for defendant as irrelevant).
How could his cheerfulness have any relevancy in this case? His intelligence might, or his industrious habits, if he had any, but not his cheerfulness.
Q. You are familiar with the locality there--Eighth and Lincoln Streets? A. Yes, sir.
Q. Up to, and prior to this accident, were there a great many small boys that gathered there in that vicinity?
(Objected to by counsel for defendant as immaterial).
Mr. Knowles:--This is to show that this was a place where children gathered and that, therefore, a greater degree of vigilance was imposed by law upon the company at that place than otherwise would have been.
If the object is to show that this was a thronged place, it is admissible. You may ask the question.
(The defendant excepted.)
BOYCE, J., charging the jury:
Gentlemen of the jury:--Angelo Di Prisco, administrator of Alfonzo Di Prisco, deceased, seeks, by this action, to recover from the Wilmington City Railway Company, the defendant, damages for the death of the said deceased, which the plaintiff alleges was caused on the fourteenth day of September last past, by the negligent and careless operating of one of the electric cars of the defendant company, on West Eighth Street, at or near Lincoln Street, in this city, on said date, in that, at the time of the accident, the said car was negligently and carelessly run along its tracks on said West Eighth Street, near the place aforesaid, (1) without proper warning as to its approach by bell or other warning; (2) without a sufficient crew; (3) without a safe and proper fender; (4) and without vigilance and care in keeping a proper lookout ahead for persons upon or near to its tracks.
The defendant company, however, denies that it was guilty of any negligence or wrong-doing in the management of the said car by which the injury complained of was inflicted, resulting in the death of the plaintiff's intestate; but on the contrary, the company claims that it exercised all reasonable and proper care in and about the premises, at the time of the accident, to avoid the same; and that the death of Alfonzo Di Prisco was caused by his own negligence and not that of the defendant company.
It is admitted that the defendant was operating the road and car at the time and place of the accident.
The defendant had a right to use the public highway, at the time and place of the accident, in common with other travelers and persons who saw fit to use it. The public as well as the defendant company, were entitled to use said highway. The electric cars of necessity could use only those parts of it covered by their tracks, inasmuch as such cars move only upon their tracks within fixed limits. Within those lines the right of the company is superior to that of other users, and must not be unnecessarily interfered with or obstructed. In using the highway all persons are bound to the exercise of reasonable care to prevent collisions and accidents. Such care must be in proportion to the danger of the peculiar risks in each case. It is the duty of the company to provide competent and careful motormen and servants; to see that they use reasonable care in operating the cars; that the cars move at a reasonable rate of speed; that they 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 accident; and that proper warning be given of the approach of the car at a crossing on the public highway. There is a like duty of exercising reasonable care on the part of the traveler. The company and the traveler are both required to use such reasonable care as the circumstances of the case demand; an increase of care on the part of both being required where there is an increase of danger. The right of each must be exercised in a reasonable and careful manner, so as not unreasonably to abridge or interfere with the right of the other. We are not prepared to lay down any absolute rule as to what precise acts of precaution are necessary to be done or left undone by persons who may have need to cross the tracks of electric railways. Nor will we attempt to specify the acts of precaution which are necessary to be done, or omitted, by one in the management of an electric car. Such acts necessarily must depend upon the circumstances of each particular case. The degree of care differs in different cases. A railway company is held to greater caution at street crossings and in the more thronged streets of the densely populated...
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