Smithers v. the Wilmington City Railway Co.

• Decision Date: 03 June 1907
• Court: Delaware Superior Court
• Parties: HARRIET R. SMITHERS v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware

67 A. 167

22 Del. 422

HARRIET R. SMITHERS v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

June 3, 1907

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

ACTION ON THE CASE (No. 35, November Term, 1906), to recover damages for personal injuries alleged to have been sustained by the plaintiff while in the act of leaving a car of the defendant company, as a passenger, at Hillcrest, near Wilmington, on October 1, 1906. Said injuries were alleged to have been caused by the negligence of the defendant, in providing a car with a broken and splintered step which went down with the plaintiff as she stepped upon the same and threw her violently upon the ground, breaking one of the bones of her left arm and bruising and jamming her left wrist, elbow and shoulder, from which injuries permanent disability resulted.

The plaintiff described the manner in which the accident occurred, as follows: "When I stepped on it it went down like a see-saw, and as I stepped off, it went down; when I took one foot off it and my weight went all on to the other foot it went down and threw me off." The plaintiff further testified that when she was lifted from the ground by some men who were standing on the rear platform of the car the conductor of the car remarked, "I told you the step was broken," although he had theretofore made no reference to the step; that she then looked at the step and saw that it was "splintered down and loose at the end."

The defendant company contended that the step of the car was in perfect condition at the time of the accident, and that the injuries to the plaintiff were occasioned by her own negligence in attempting to alight from the rear end of the car where the step was some distance from the ground, after being told by the conductor to step to the forward end of the car, where there was a wooden platform alongside of the track, which was a safe place to enter and leave the car.

The jury disagreed.

Levin Irving Handy for plaintiff.

Walter H. Hayes and Andrew C. Gray for defendant.

Judges GRUBB and PENNEWILL sitting.

OPINION

PENNEWILL, J., charging the jury:

Gentlemen of the jury:--This is an action brought by the plaintiff to recover damages for injuries which she sustained in an accident that occured while in the act of leaving a car of the Wilmington City Railway Company, the defendant, at a place called Hillcrest, in this county, on October 1, 1906 and which injuries she alleges were caused by the negligence of the defendant company. The specific act of negligence upon which the plaintiff relies is that the step of the car she was using was permitted by the company to be in an unsafe and insecure condition, so that when she stepped thereon it went down and threw her forward on the ground, causing the breaking of a bone in her arm, hurting and bruising her in other respects, and also shocking her nervous system, so that, on account of her injuries, she suffered and still does suffer much pain, and is incapacitated from doing the work and performing the duties she was accustomed to do, and was able to do, before the accident.

The defendant denies that the step of the car was unsafe or insecure, and insists that it was, at the time of the accident, in good condition, and not broken, splintered or loose from the car. It contends, therefore, that it was not guilty of any negligence that caused the accident, and says that if there was any negligence it was that of the plaintiff and not of the company.

It is admitted in this case, that the trolley car in use by the plaintiff at the time and place of the accident complained of was then and there operated by the defendant company, and that the said company was then and there lawfully entitled to operate said car.

To enable the plaintiff to...