Simeone v. Lindsay

• Decision Date: 27 February 1907
• Court: Delaware Superior Court
• Parties: ALBERTO SIMEONE v. JOSEPH HORACE LINDSAY

65 A. 778

22 Del. 224

ALBERTO SIMEONE v. JOSEPH HORACE LINDSAY

Superior Court of Delaware, New Castle County

February 27, 1907

Superior Court, New Castle County, February Term, 1907.

ACTICN ON THE CASE (No. 131, September Term, 1906), to recover damages for personal injuries alleged to have been sustained by reason of being run into, knocked down and run over by an automobile operated by the defendant.

See facts in charge of Court.

Verdict for plaintiff for $ 100.

Leonard E. Wales for plaintiff.

James W. Ponder for defendant.

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

OPINION

PENNEWILL, J., charging the jury:

Gentlemen of the jury:--This action is brought by Alberto Simeone, the plaintiff, against the defendant, Joseph Horace Lindsay, to recover damages for personal injuries which he alleges he sustained by reason of being run into, knocked down and run over by an automobile driven and operated by the defendant on the eighth day of October, 1905, on the Kennett Turnpike near this City and close to Dupont's school house. The plaintiff alleges that he and some companions were walking in or along said turnpike or road when the automobile operated by the defendant, and moving in the same direction at a rapid, excessive and unreasonable rate of speed, and without giving any signal or warning of its approach by gong, bell or otherwise, ran upon the plaintiff, knocked him down, ran over him and broke his leg. He contends that the injuries he received were caused by the careless and reckless manner in which the machine was managed or operated.

The defendant denies that he is liable in this action, for two reasons: (1) Because he was not operating, had no control of or anything to do with, the automobile at the time of the accident to the plaintiff; and (2) because the said accident was not caused by any negligence on the part of the person operating the automobile, but on the contrary the operator used all necessary and reasonable care to avoid the accident of which the plaintiff complains. And he insists that the injury was caused by the carelessness of the plaintiff in stepping in front of the machine at a time when it was too late for the driver to either stop the machine or change its course.

We have been asked by the defendant to direct you to find a verdict for the defendant in this case. This we decline to do, because we think it is such a case as should be submitted to and determined by the jury under the evidence you have heard and the law as we shall state it.

It is admitted that the Kennett Turnpike upon which the accident in question occurred, is a public road or highway. A public highway, this Court has declared, is open in all its length and breadth to the reasonable, common and equal use of the people, on foot or in vehicles. The owner of an automobile has the same right as the owner of other vehicles to use the highway, and like them he must exercise reasonable care and caution for the safety of others. A traveler on foot has the same right to the use of the public highway as an automobile or any other vehicle. In using such highway all persons are bound to the exercise of reasonable care to prevent accidents. Such care must be in proportion to the danger in each case. Where one undertakes to pass another on the highway, going in the same direction, he must take reasonable care to exercise that right so as not to injure another, and would be liable for all consequences resulting from negligence or imprudence on his part. It is the duty of a person operating an automobile, or any other vehicle upon the public highway, to use reasonable care in its operation, to move it at a rate of speed reasonable under the circumstances, and cause it to slow up or stop if need be when danger is imminent, and could by the exercise of reasonable care be seen or known in time to avoid accident. There is a like duty of exercising reasonable care on the part of the person traveling on foot. The person having the management of the automobile and the traveler on foot are both required to use such reasonable care, circumspection, prudence and discretion as the circumstances require; an increase of care being required where there is an increase of danger. And both are bound to the reasonable use of all their senses for the prevention of accident, and the...