Trimble v. Philadelphia, Baltimore and Washington Railroad Company
| Decision Date | 05 December 1913 |
| Citation | 27 Del. 519,89 A. 370 |
| Court | Delaware Superior Court |
| Parties | PHILIP T. TRIMBLE v. PHILADELPHIA, BALTIMORE AND WASHINGTON RAILROAD COMPANY, a corporation of the State of Delaware |
Superior Court, New Castle County, November Term, 1913.
ACTION ON THE CASE (No. 22, March Term, 1913), by Philip T. Trimble against the Philadelphia, Baltimore & Washington Railroad Company to recover damages for personal injuries and for injuries to automobile, occasioned, as alleged, by being negligently struck by the locomotive of a southbound train of the defendant company at "Harmony Crossing," in White Clay Creek Hundred, on July 18, 1912. According to the testimony of the plaintiff, when approaching the crossing and at a point about two hundred feet south of the roadbed or right of way of the defendant company, he looked to the north, where he could see about a quarter of a mile up the track, and that he neither saw nor heard a train approaching from the north, and that from said point to the roadbed there was a dip in the public road and a bank with a hedge growing upon it of sufficient height to completely obscure his view of the railroad, which obstruction continued until he reached the right of way of the defendant; that after looking he proceeded slowly in his automobile toward the crossing, going at the rate of from six to ten miles an hour--or as slowly as it was possible for an automobile to proceed, at that place in order to keep in motion--and listened for an approaching train, but heard no bell or whistle and that none was sounded; that as he emerged from behind the said bank or obstruction, and reached a position where he could see up and down the railroad tracks, a train from the north bore down upon him, and as it was too late for him to stop or apply his brakes, he turned his automobile to try to avoid a collision but in doing so the front of his automobile was struck by the locomotive, turning the machine around. The machine was again struck by some projection of the engine or train, and overturned and demolished, he being thrown under the machine and injured.
The defendant contended that both the bell and the whistle were sounded on approaching the crossing; that the plaintiff had an unobstructed view from the point where the embankment ended to the track on which the train was running, which was of a sufficient distance to enable him to stop his automobile, had he been exercising due care, in time to have avoided a collision; and that the injuries complained of were the result of plaintiff's negligence.
Among other prayers requested by the defendant was the following:
."
The court declined to so charge, for the reason that the language of the prayer was not applicable to the facts of the present case.
Verdict for plaintiff.
Levin Irving Handy and Wilbur L. Adams for plaintiff.
Andrew C. Gray (of Ward, Gray and Neary) for defendant.
OPINION
RICE, J., charging the jury:
Gentlemen of the jury: --This is an action brought by Philip T. Trimble, the plaintiff, against the Philadelphia, Baltimore and Washington Railroad Company, a corporation of the State of Delaware, for the recovery of damages for injuries to himself, and for injury to his automobile, which he alleges to have been caused by the negligence of the defendant company on the eighteenth day of July, 1912. The plaintiff alleges that the defendant so carelessly and negligently ran its train at a place in White Clay Creek Hundred, this county, where its tracks cross the public road leading from Harmony to Christiana, that the train ran into the plaintiff's automobile, in which he was riding at the time of the collision.
The acts of negligence charged by the plaintiff against the defendant are (1) that the whistle of the locomotive steam engine was not blown by said company in time to give said plaintiff warning of the approach of said locomotive and train of cars; (2) that the bell of said locomotive was not rung by said company in time to give said plaintiff warning of the approach of said locomotive and train of cars; (3) that said company neglected and failed to have a gate and watchman at said dangerous grade crossing; (4) that said company neglected and failed to give notice and warning to said plaintiff of the approach to said grade crossing of said locomotive and train of cars; (5) that the defendant neglected and failed to cause the approach of said locomotive to said public highway, crossing said line of railroad at grade at the place mentioned, to be signaled by sounding two long blasts followed by two short blasts of the steam whistle on said locomotive at least three hundred yards from said crossing, as required by the statute.
The plaintiff avers that, at the time of the collision, he was exercising proper care and caution.
The defendant company claims that the collision was not caused by any negligence or want of care on the part of the company, but was caused by the negligence of the plaintiff in not using due care and caution to ascertain if a train was approaching the crossing before he attempted to cross its tracks.
It is admitted that the defendant company was operating the train in question and that it had the lawful right to run its trains over the tracks. It is also admitted that the place where the collision occurred was a public highway crossing.
We decline to give you binding instructions, because we think it a proper case to be submitted to the jury for their determination upon the evidence, applying thereto the law as the court shall state it to you.
In an action of this kind it is necessary that the plaintiff should both allege and prove negligence, and the plaintiff cannot recover until he has shown to your satisfaction, by a preponderance of proof, that is, the greater weight of evidence, that the negligence of the defendant was the cause of the injuries. The burden of proving negligence on the part of the defendant rests upon the plaintiff.
Negligence has been defined as a failure to use such care, prudence and vigilance as a reasonably prudent man, under the peculiar circumstances of the case, would exercise to preserve himself from being injured. There is no presumption of negligence, either on the part of the plaintiff or on the part of the defendant, from the mere fact that injury resulted by the train and automobile coming into collision; that is, liability on the part of the defendant does not arise out of the mere fact that the plaintiff was injured. Lenkewicz v. Wil. City Ry. Co., 7 Penne. 64, 74 A. 11.
Whether there was any negligence, at the time of the collision, and whose, you must determine from all the facts and circumstances of this case as disclosed to you by the testimony of the witnesses.
If it shall appear to your satisfaction that the plaintiff was negligent, and said negligence contributed in any degree to or entered into the accident, he...
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