Stucker v. American Stores Corp.
| Decision Date | 16 January 1934 |
| Citation | 35 Del. 594,171 A. 230 |
| Court | United States State Supreme Court of Delaware |
| Parties | FRANCIS STUCKER, by his next friend, Frank Stucker, plaintiff below, plaintiff in error, v. AMERICAN STORES CORPORATION, a corporation of the State of Delaware (which was sued with Ray Walls), defendant below, defendant in error |
Supreme Court, No. 5, January Term, 1933.
Writ of Error to the Superior Court for New Castle County, No. 117 January Term, 1931.
This is a writ of error directed against the entry of a final judgment by the Superior Court, sitting in New Castle County on a demurrer which is sustained to the declaration filed by the plaintiff.
Judgment affirmed.
Aaron Finger (of Richards, Layton and Finger) for plaintiff below, plaintiff in error.
Clarence A. Southerland (of Ward and Gray) for defendant below, defendant in error.
OPINION
The action below was instituted by the next friend of Francis Stucker, a boy ten years of age (herein referred to as the plaintiff) against American Stores Company, a corporation of this state (herein called the defendant) and one Ray Walls charging the defendants with liability for a tortious injury sustained by the plaintiff. The case here may be considered as against American Stores Company, it being the sole party defendant in error.
The original declaration contained only one count, to which the defendant, American Stores Company, demurred. The court below filed an opinion sustaining the demurrer, holding that no cause of action was shown against the defendant. [1] Thereupon the plaintiff amended his declaration by substituting a new count for the one found insufficient. A demurrer was filed to the amended count, which was sustained by the court below without further opinion. We assume that the court below, in sustaining the demurrer to the amended declaration, rested its decision upon the reasons which it gave in the opinion which it delivered in sustaining the demurrer to the original declaration. The attorneys for the parties have so treated the matter and have accordingly directed their arguments in this court to the soundness of the propositions of law announced by the court below in the opinion above referred to.
We refrain from describing the case as made out by the averments of the original declaration, which the court below held to be insufficient. We direct our attention immediately to the amended declaration with the view of answering the question, which the writ of error propounds, of whether the court below was correct in concluding that the amended declaration failed to state a cause of action against the defendant.
The averments of the amended declaration are that the defendant, through its servant, sent the plaintiff, a boy of about ten years of age, upon an errand to deliver some merchandise from the defendant's store, in the city of Wilmington, to a place about eight city blocks distant therefrom; that the merchandise was loaded on a boy's express wagon owned and supplied by the defendant; that it was necessary for the plaintiff in making the delivery "to travel over and near streets and crossings where there was considerable traffic by motor vehicles and necessarily to be subjected to dangers to which a child of his years would naturally be subject from such traffic, and of which a child of his years would not and could not know or appreciate and against which he could not reasonably or adequately protect himself, and particularly to be subjected to the well known dangers of such traffic to a child of his years arising from the careless operation of motor vehicles on the highways, of all of which said servant of said American Stores Company had knowledge or should have had knowledge; that said servant of said American Stores Company thereby then and there sent said infant into a place of danger, of which said servant of said American Stores Company had knowledge or should have had knowledge, but of which said infant did not have knowledge and the dangers of which he could not appreciate by reason of his tender years;" that the servant of the defendant knew or should have known that it was dangerous for the plaintiff to travel with the said merchandise on said errand; that the defendant was, through its servant, negligent in thus sending the plaintiff upon said errand; and that while the plaintiff was doing the errand and was travelling upon Twenty-third Street between Pine and Spruce Streets, he was struck by an automobile driven by Walls whereby he was injured; and that his injury was caused by the concurring negligence of the defendant and Walls, the negligence of the former consisting in the sending of the plaintiff into a place of danger, viz., the streets, and the negligence of Walls consisting in his driving his automobile upon the wrong side of the street, viz., upon the side to the left of the direction he was travelling.
The court below sustained the demurrer on two grounds. These were first, that the declaration averred no such dangerous conditions of the streets as would make it negligence for the defendant to send a boy ten years of age upon them for the purpose of delivering merchandise; and, second, even if it were conceded that it was negligence for the defendant to subject the boy to the dangers of traffic, the act of Walls in negligently driving on the wrong side of the street was an independent, intervening proximate cause which broke the causal connection between the defendant's assumed original negligence and the plaintiff's injury, and, therefore, the defendant is not liable.
The defendant relies upon both of these grounds in its argument in this court in support of the judgment of the court below upon the demurrer.
We direct our attention first to the question--does the declaration show the defendant to have been guilty of negligence towards the plaintiff? The negligence, if any, consisted in sending a boy of ten years to do an errand, which required him to travel over streets known by the defendant to be so full of hazards due to traffic that a boy of his years would be incapable either of appreciating their presence or of exercising care in their avoidance.
The boy is not alleged to have been subnormal in any way. We, therefore, must assume him to have been normal in every way, possessed of all the faculties and qualities usually expected to be found in boys of his age.
It is not alleged that the boy was required to travel in the road bed where vehicles were travelling in order to perform his task. Yet, that is where he was travelling. So far as appears, he had the choice of drawing the express wagon either over the sidewalk or out in the road. To say that a normal ten-year old boy has not sufficient discretion to exercise care in making choice of a road-bed for travel, especially where "considerable traffic" is traversing it, in preference to the safety of a sidewalk, is going, we think, far beyond the limits which everyday observation of youthful behavior sets as the boundary of a normal ten-year old boy's competency. Cleveland, etc., Ry. Co. v. Keely, 138 Ind. 600, 37 N.E. 406; Pinto v. Brennan, ...
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