Queen Anne's Railroad Company v. Reed

• Decision Date: 18 January 1905
• Citation: 59 A. 860,21 Del. 226
• Parties: QUEEN ANNE'S RAILROAD COMPANY, defendant below plaintiff in error, v. MARY E. REED, plaintiff below defendant in error
• Court: United States State Supreme Court of Delaware

59 A. 860

21 Del. 226

QUEEN ANNE'S RAILROAD COMPANY, defendant below plaintiff in error, v. MARY E. REED, plaintiff below defendant in error

Supreme Court of Delaware

January 18, 1905

Supreme Court, June Term, 1904.

WRIT of ERROR to the Superior Court in and for Sussex County.

The judgment is reversed.

Charles W. Cullen and Archibald H. Taylor (of the Maryland bar) for plaintiff in error.

Robert C. White for defendant in error.

NICHOLSON Ch., and SPRUANCE and BOYCE, J. J., sitting.

OPINION

BOYCE, J.

This action was brought in the Superior Court for Sussex County by Mary E. Reed, widow of John W. Reed, deceased, the defendant in error, against the Queen Anne's Railroad Company, the plaintiff in error, for the recovery of damages for the death of the said John W. Reed, alleged to have been occasioned by the negligence of the defendant company.

The real contention of the plaintiff raised under the pleadings and the evidence, being that the whistle was not sounded and the bell was not rung, if at all, at such a time and place as to give due and proper notice of the approach of the locomotive and cars attached, and that the said locomotive and cars were moving at a dangerous rate of speed immediately before and at the time they approached and passed over the crossing at which the accident occurred. There was neither allegation nor attempt to show that the servants of the company either saw, or, in the exercise of reasonable care, might have seen the deceased in time to have avoided the accident; nor were the servants charged with neglect of duty from the time the peril of the deceased was seen, or might have been seen, up to the time of the accident.

When the plaintiff had rested her case, the defendant moved for a nonsuit, on the ground that the testimony produced by her showed either (1) that the injury complained of was the result of an inevitable accident, or (2) that the deceased was guilty of contributory negligence. The Court, in disposing of the motion, said: "Under the testimony this is a very close case; but as it stands we must decline to grant a nonsuit, and will let you go to the jury." It may be said here that the refusal to grant the nonsuit is not before this Court, because under our decisions, the action of the Court upon a motion for a nonsuit is not reviewable. At the close of the case, the defendant presented several prayers for instructions, the last of which was "That the Court instruct the jury to render a verdict for the defendant." The case was, however, submitted to the jury under the charge of the Court. There are several assignments of error, but at the hearing in this Court, counsel for the defendant confined themselves to the last--"For that the Court erred in refusing to charge the jury to render a verdict for the defendant as requested"--it being contended that the evidence introduced by the plaintiff, and not affected by that offered by the defendant, otherwise than to strengthen it, clearly showed that the defendant was not negligent at the time of the accident, but on the contrary that it was the negligence of the deceased which occasioned the collision and his death at the crossing.

A very short time before the accident, which occurred between the hours of four and five o'clock in the afternoon, on the day of March, A. D. 1901, the deceased, being in a fall-top carriage, drawn by a horse, was seen driving along Federal Street, towards his farm, the place of his residence, some distance, in a southerly direction, from the town of Milton. In his attempt to pass over what is known as Federal Street crossing, which is formed by the intersection of said street or highway and the tracks of the defendant company, an engine with a tender and a passenger coach attached, collided with the carriage, demolishing it, and he was, it appears, instantly killed. His body was seen, very soon thereafter, lying on the north side of the track, about one hundred and fifty or two hundred feet westerly of the crossing. The horse escaped with a slight injury. The track of the defendant company is laid along the southern edge of the town, in a sparsely settled part thereof, and extends in an easterly and westerly direction. The train was a special which had come from Lewes, on its way westward to Queenstown and was running, when near the station, which is seven hundred and fifty-five feet east from the place of the accident, at a rate of speed, varying under the evidence, from twenty-five to forty-five miles an hour. The station was located adjacent to the Chestnut Street crossing, and at a short distance east therefrom, there stood a small tool house. The freight house was located west of the station, and the western end thereof was five hundred and thirty-eight feet from the Federal Street crossing. A warehouse stood a very short distance west of the freight house. It seems that all these buildings were on the north side of the track, between the latter and the town. On the east of Federal Street crossing, a distance of two thousand feet therefrom, and twelve hundred and forty-eight feet from the station, there was a branch, crossed by what several of the witnesses called the trestle work, it being a bridge, which was hidden from both Chestnut and Federal streets by a woods, the western edge of which was five hundred and seventy-five feet from the Chestnut Street crossing, and thirteen hundred and thirty feet from the Federal Street crossing. At the time of the accident, several of the witnesses, mostly for the plaintiff, were loading cars with hickory butts, on a side track or switch, some fifty or seventy-five yards east of the station. Blizzard and his wife, who, as well as the other persons hereinafter named in this statement, being witnesses for the plaintiff, were at their home twenty or thirty yards south of the Federal Street crossing; Van was in his home, located on the west side of Federal Street, about two hundred feet from the crossing; Simpler was at his home, known as the Oliver house, on the west side of Federal Street, about two hundred and sixty-five feet from the crossing; William H. Bailey was likewise at his home, about one thousand feet west and abreast of the crossing and three hundred feet from the track; and King was on Chestnut Street in a wagon going toward the station, about a hundred and fifty or two hundred yards therefrom. From Van's house, on the east side of the street, and nearly down to the railroad, there was a row of trees, mostly cedar, eight or nine in all, varying from six to twenty-four feet apart, with under-bushes and briars, six to eight feet high, growing between them, for a distance of about forty feet from the railroad towards the house. The railroad, as it approached the crossing, was not on a level with the surrounding country, but ran through a cut which began above the freight house, and at the crossing the top of the rail was three feet below the level. Federal Street ran along the western side of a hill or elevation. There was an ascent from the crossing on Federal street towards the town for a distance of two hundred and fifty feet when a level was reached. The highest point in the elevation on the eastern side of said street, within twenty or thirty feet of the centre of the railroad, at the crossing, was about five feet above the top of the rail. At the centre of said street, one hundred and twenty-five feet distant from the crossing, the highest point in the elevation, looking towards the station, was said to be about six feet.

The mere fact of an accident by which an injury is sustained, if not within the control of the defendant, does not, in itself, raise a presumption of negligence.

Bahr vs. Lombard, 53 N.J.L. 233, 21 A. 190.

And it is necessary that the plaintiff should have both alleged and proved negligence, on the part of the defendant, to entitle her to a recovery; for the burden of proving negligence rests upon the plaintiff.

Negligence has been defined to be the want of ordinary or reasonable care in the respect of that which it is the duty of the party to do or leave undone. To reach a determination of what negligence is, Judge Cooley in his work on Torts, says: "We are not to look solely at a man's acts or his failure to act; the term is relative, and its application depends on the situation of the parties, and the degree of care and vigilance which the circumstances reasonably impose. That the degree is not the same in all cases; it may vary according to the danger involved in the want of vigilance." He further adds, "Negligence in a legal sense is no more nor less than this: The failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury."

Whether there was any negligence, at the time of the accident, and whose, must be determined from the evidence under all the facts and circumstances of the case.

It is for the Court to say whether any facts have been established by sufficient evidence from which negligence can be reasonably and legitimately inferred; and it is for the jury to say whether from those facts, when submitted to them, negligence ought to be inferred.

Metropolitan Ry. Co. vs. Jackson, 3 App. Case., 193; Creswell vs. W. & N. R. R. Co., 18 Del. 210, 2 Penne. 210, 43 A. 629.

If the plaintiff fails to produce any evidence of negligence, on the part of the defendant, or if, as it has been said, no fair inference of negligence can be drawn from the evidence favorable to the plaintiff, assuming that such evidence is true, it becomes the duty of the Court to nonsuit the plaintiff, or to direct a verdict for the defendant.

Comm. vs. Clark, 94 U.S. 278, 24 L.Ed. 59; ...