Reed v. Queen Anne's Railroad Company

• Decision Date: 14 October 1903
• Citation: 57 A. 529,20 Del. 413
• Parties: MARY E. REED v. QUEEN ANNE'S RAILROAD COMPANY
• Court: Delaware Superior Court

57 A. 529

20 Del. 413

MARY E. REED v. QUEEN ANNE'S RAILROAD COMPANY

Superior Court of Delaware, Sussex County

October 14, 1903

Superior Court, Sussex County, October Term, 1903.

ACTION ON THE CASE (No. 76, April Term, 1901) by widow, to recover damages for death of husband.

Plaintiff claimed that in the month of March, 1901, in the town of Milton in Sussex County, at a point where the railroad of the defendant company crosses Federal Street, the carriage in which her husband was riding was struck by one of the defendant's locomotive steam engines attached to a train of cars; that the carriage was broken to pieces, her husband thrown to the ground and killed; that his death was caused by the negligence of the defendant company, in then and there running their train at a high rate of speed, without giving the usual signals and warning, and without due, reasonable and timely warning at such crossing.

William B. Carswell testified that he was a civil engineer of twenty years' experience, including three years on construction work on the Baltimore and Ohio Railroad, and was familiar with the crossing in question and surroundings, having made a survey and plot of the same.

Witness further testified that there was an embankment two hundred and fifty feet long by about five feet elevation at its highest point, with bushes, briars and cedar trees growing upon it, on the East side of Federal Street approaching said crossing, which would, more or less, obscure a traveler's view of a train of cars approaching said crossing, until the person reached the point where the embankment terminated at the right-of-way of the defendant company, at or near the crossing.

The witness was then asked by Mr. White:

"Is or not that, in your judgment, an unusually dangerous crossing for a person coming from the direction of Milton and crossing the railroad at that point, with a train approaching from the East?"

(Objected to by counsel for defendant on the ground that the question as to whether or not the crossing was an unusually dangerous one was a matter to be determined by the jury and not by the witness.)

Verdict for plaintiff for $ 5000.

Robert C. White and James A. Marsh for plaintiff.

Charles W. Cullen for defendant.

LORE C. J., and GRUBB and PENNEWILL, J. J., sitting.

OPINION

LORE, C. J.

We think the witness may answer the question.

"A. Considering the physical conformation of the land, I think it is."

The evidence further showed that the train which struck the deceased, consisted of a locomotive engine and two passenger coaches; that said train was a west bound through extra; that about the time that Mr. Reed, driving a horse to a top buggy, passed behind the embankment, some two hundred and fifty feet from the crossing, and approaching the crossing, the engine blew its whistle in a woods some two thousand feet east of the crossing, and immediately came out from said woods, running at the rate of from thirty to forty-five miles an hour, and did not blow the whistle again until just before or about the time of the collision with defendant's carriage, when two or three sharp "toots" were sounded.

Thomas Van, a colored man, testified on behalf of the plaintiff, that he lived on Federal Street about opposite the point where the hill began to rise and about two hundred feet from said crossing; that on the day of the accident, he was at home, and, on looking out of his front window, saw John W. Reed driving a horse to a carriage slowly down Federal Street coming from the direction of Milton toward the Federal Street crossing; that the horse was "just about jogging along;" that he next saw Reed and his team while jogging along about thirty yards from the crossing; that having heard the train blow and at that time having gone out of his house, he was standing looking at Mr. Reed to see whether the man intended to get across or not before the train got there; that the man and team were in his sight from that time until the accident happened; that the horse then seemed to be in a "dead level run;" that he did not see the horse make any stop at all, he kept right on running and "jumped the track the very same way"; that he did not see Reed look to either side or listen. "His head was down; did not seem to be taking any notice of anything at all--sitting there. Just about the time the hind wheels got midway of the track the engine struck him. The next I saw was that the train had run up to some pines and stopped, and I looked on the other side and saw the horse getting up out of a bed of sand. He was not injured a great sight. I went down soon afterward and saw pieces of the carriage lying scattered along the railroad track. The carriage was torn all to pieces. I saw John W. Reed, he was laying head toward the East on the Eastern side of the track, I suppose somewhere about fifty or sixty yards from the crossing."

MOTION FOR NONSUIT.

When the plaintiff rested, counsel for defendant moved for a nonsuit upon two grounds, viz.:

First--Because, under the proof, the death of John W. Reed was the result of a pure accident either inevitable or unavoidable.

Second--Because, under the proof, there was contributory negligence on the part of the deceased.

LORE C. J.:--

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.

LORE, C. J., charging the jury:

Gentlemen of the jury:--This action is brought by Mary...