Solomon v. Philadelphia, Baltimore And Washington Railroad Company

• Decision Date: 24 January 1906
• Court: Delaware Superior Court
• Parties: JOHN O. SOLOMON v. PHILADELPHIA, BALTIMORE AND WASHINGTON RAILROAD COMPANY, a corporation existing under the laws of the State of Delaware

77 A. 970

23 Del. 21

JOHN O. SOLOMON v. PHILADELPHIA, BALTIMORE AND WASHINGTON RAILROAD COMPANY, a corporation existing under the laws of the State of Delaware

Superior Court of Delaware, New Castle County

January 24, 1906

Superior Court, New Castle County, November Term, 1905.

ACTION ON THE CASE (No. 212, September Term, 1905), to recover damages for personal injuries, alleged to have been occasioned by the negligence of the defendant company in placing and erecting a certain obstruction, to wit, a piece of timber or a pillar, in the bed of East Third Street, in the City of Wilmington, dangerously and unnecessarily near to the tracks of the Wilmington City Railway Company, whereby the said plaintiff, who in the exercise of due care and caution on his part was riding as a passenger on a certain car of the said Railway Company, through and along said street, was then and there hit and struck with great force and violence, by said obstruction, and thereby by means of the negligence and carelessness of the said defendant the said plaintiff was greatly injured.

At the trial the plaintiff testified that on the afternoon of August twenty-third, 1905, in the course of his employment as policeman in the City of Wilmington, on East Third Street near the tracks of the defendant company, he had to go over to South Wilmington across the Christiana, over Third Street Bridge; that he boarded a street car near the defendant company's railroad tracks, that the street car tracks passed under a trestle work of the defendant company supported by timbers or pillars, which were very close to the side of the car--being only twenty-nine inches from the rail of the street car track and about eight inches from the handle bars of the car--that as the car stopped, he got on the running-board and grabbing the handle bars, took not over two steps forward in order to bring himself opposite the space between two seats so that he could enter the car, and while in a stooping position attempting to enter the car he was caught by said timbers or pillars, crushed and jammed up against the car and rolled over and over as the car passed through the trestle work and was thereby severely injured.

The plaintiff further testified that he was not on the running-board over a second before he was struck; that his regular duties did not require him to be in the neighborhood of the scene of the accident, and that with the exception of being there on the morning of the day of the accident and twice on the day before, he had not theretofore been in that section of the city for about eight months; that when last there he had merely glanced at the trestle work.

The plaintiff was permitted to show, against objection of defendant as irrelevant, the condition of the pillars referred to the morning after the accident; the Court holding that if the pillars were changed between the time of the accident and the time of the examination the next morning the defendant could show it.

At the close of plaintiff's testimony, defendant moved for a nonsuit upon two grounds, viz:

First. That no negligence had been shown on the part of the defendant company. That as Ryan and Kelly were the contractors who were in charge of the elevation of the defendant company's tracks, said contractors, and not the defendant, were responsible for any accident or injury to the plaintiff.

Second. That there was contributory negligence (or assumption of risk) on the part of the plaintiff.

The Court, after hearing argument, refused the nonsuit.

PLAINTIFF'S PRAYERS.

1. That roads are made for public convenience, and when one is established as a public road, if there be any unlawful obstruction of it whatever, it is a nuisance, indictable as such; and if such obstruction causes special damage to a particular person, he may have his private action for the injury.

Johnson vs. Stayton, 5 Harr., 449.

2. That if the jury believe from the evidence in this case that Third Street, at the time this accident happened, was a public street of the City of Wilmington, and that the defendant erected or caused to be erected in the bed of that street, pillars, without having legal authority to so use the bed of that street, then such use of that street would amount to an unlawful obstruction of the same and would be a nuisance, and for any special damages resulting therefrom to the plaintiff, he would be entitled to recover.

Elliott on Roads and Streets, Secs. 645, 651; 16 A. & E. Ency. Law, 937.

3. Even where corporations are authorized to use public streets, the law requires that they use due care and diligence to protect and save the public from loss or injury.

Cook, vs. W. C. Elec. Co., 9 Houst. 309; Neal vs. W. C. Ry., 3 Pennewill. 470.

4. That if the jury shall find that the plaintiff is entitled to recover, then damages should be awarded to compensate him for his pain and suffering in the past and such as he may hereafter endure, as a result of the accident, and also for his expenses for doctor's bills, and medicines; also for the impairment of his ability to perform his usual occupation.

DEFENDANT'S PRAYERS.

1. To return a verdict for the defendant.

2. The burden is on the plaintiff to prove negligence by positive evidence.

3. Negligence is not presumed but must be proven and the burden of showing negligence is on the plaintiff.

4. The ground of this action is negligence, and not nuisance. Where the construction of a public highway is not in itself unlawful, not a public nuisance, then the ground of liability is not the commission of a public nuisance, but the failure to use reasonable care and skill in the exercise of the lawful right of occupying the street.

Thompson on Neg., Vol. 1, Sec. 1188.

5. The presumption that streets are safe for ordinary travel only applies to those who have no knowledge of the obstruction.

103 Pa. St. 32; Peachey vs. Rolan, 13 C. B. 182; 80 Wis. 187.

6. If there be danger open and apparent in the street, of which the plaintiff knows, and the plaintiff, with his eyes open, using not ordinary care, is injured thereby, he has no right to recover, for he contributed to his own injury.

When a man is guilty of an act which causes his injury, though another be first liable of causing the danger, and by reason of want of ordinary care on his part takes the risk, being fully warned,--he is guilty of contributory negligence.

Cook vs. Wil. City Electric Co., 9 Houst. 306; Butterfield vs. Trustee, 11 East. 60; Allen vs. Tele. Co., 21 Hun. 22; Betts vs. Wil. City Ry. Co., 3 Penn. 448; and Boudwin vs. Wil. City Ry. Co., 4 Penn. 381.

7. It is per se negligence for a passenger unnecessarily to expose his person or any part thereof beyond the exterior line of a moving car, and the question whether he was negligent in so doing is not for the determination of the jury unless there be some qualifying circumstances present.

Thomas Neg. Rules, etc., 289.

8. Where a passenger left his seat in an open car without reasonable cause, and started to get on the outside step to another seat and was hit by an iron column in the street and hurt, the defendant would not be liable.

36 N.Y. 135; 67 N.Y. 596; 100 N.Y. 171; 7 N.Y. 207; 14 N.Y. 429; 147 Mass. 112; 56 Pa. St. 294; 29. Ind. 82; 39 Maryland 329; 78 Va. 645; 114 N.Y. 609.

9. Walking on the running board of an electric car in motion when there is room inside is negligence per se.

Kitchner vs. Oil City Ry. Co., 210 Pa. St. 45; Bumbaer vs. United Trac. Co., 198 Pa. St. 198; Woodroffe vs. Ry. Co., 201 Pa. St. 521; Thayne vs. Scranton Trac. Co., 191 Pa. St. 249.

10. If a passenger projects his body outward from the outer edge of the footboard, so as to bring it in contact with a post, where he is familiar with the surroundings, he is held to have contributed to his own injury.

Sibley vs. New Orleans City R. Co., 21 So. 851.

11. The authority given to a railroad company to place its tracks on the street carries with it authority to obstruct its use temporarily, so far as the building of the tracks require it to be done.

Ry. Co. vs. Gardner, 45 O. St. 309, at 322; ...