Truman v. Wilmington City Railway Company

• Citation: 23 Del. 192,78 A. 636
• Court: Superior Court of Delaware
• Decision Date: 07 February 1908
• Parties: ELLEN J. TRUMAN and MARY ROBERTS, Executrices of PHILIP LYNCH, deceased, v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware

78 A. 636

23 Del. 192

ELLEN J. TRUMAN and MARY ROBERTS, Executrices of PHILIP LYNCH, deceased, v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

February 7, 1908

Superior Court, New Castle County, January Term, 1908.

ACTION ON THE CASE to recover damages for personal injuries to Philip Lynch, alleged to have been sustained by reason of the negligence of the defendant on one of the public streets of Wilmington.

Action was brought by Philip Lynch in his lifetime., and continued by his executrices after his death.

Verdict for plaintiffs for $ 1200.

Edwin R. Cochran, Jr., and Sylvester D. Townssnd, Jr., for plaintiffs.

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

Judges SPRUANCE and BOYCE sitting.

OPINION

SPRUANCE, J. charging the jury:

Gentlemen of the jury:--This action was brought by Philip Lynch in his life-time to recover damages for personal injuries sustained by him by reason of the alleged negligence of the defendant company on April 30th, 1906, at or near the junction of Chandler Street and Maryland Avenue in this city. By the death of Philip Lynch on the 29th of July, 1906, the action did not abate, but his executors having been made parties plaintiff, the action is now prosecuted by them.

The declaration filed by the plaintiffs contains four counts, the last two of which have been abandoned, and the plaintiffs rely only upon the first count which alleges excessive speed of the car, and the second which alleges failure to properly warn the said Lynch of the approach and movement of the car. These two are the only grounds of negligence on the part of the defendant relied upon by the plaintiffs.

It is conceded that the said Philip Lynch on the said thirtieth day of April, 1908, was struck by an electric car of the defendant company and seriously injured. The defendant denies that the said injuries were occasioned by the negligence of the company or its servants in charge of the car, but insists that said injuries were occasioned solely by the negligence of Lynch.

At the time of the accident the defendant company owned and operated a line of electric railway along Maryland Avenue in this City at the point where said accident occurred, and was duly authorized so to do. The public had the right to use said avenue for all proper purposes of travel on foot or in vehicles. The right of the company and the right of the public are required by law to be exercised with due regard to the right of the other; and the right of each must be exercised in a reasonable and careful manner so as not unnecessarily to abridge or interfere with the right of the other.

It was the duty of the company to use reasonable care in operating its cars, to move them at a reasonable rate of speed, and if possible, to slow up or stop where danger is imminent, and to give reasonable notice of the approach of its cars by bell or otherwise, where a pedestrian is, or could by the exercise of reasonable diligence, be seen in a position of danger. The degree of care required must depend upon the circumstances of each case. As a general rule, the person in the management of the car and the pedestrian are both bound to the reasonable use of their sight and hearing for the prevention of accident, and to the exercise of such reasonable caution as an ordinarily careful and prudent person would use under like circumstances.

A person approaching a railway crossing with which he is familiar...