White v. The Wilmington City Railway Co.
| Decision Date | 16 June 1906 |
| Citation | 63 A. 931,22 Del. 105 |
| Court | Delaware Superior Court |
| Parties | JAMES R. WHITE v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware |
Superior Court, New Castle County, May Term, 1906.
ACTION ON THE CASE (No. 172, September Term, 1904), to recover for personal injuries received by the plaintiff by being thrown from a coach which he was driving in a funeral procession at Fourth and Tatnall Streets in Wilmington on April 27, 1904 through a collision of one of the cars of the defendant company with said coach, which collision the plaintiff claimed was due to the negligence of the servants of the defendant company.
The allegations of negligence set out in the declaration were (1) failure on the part of the company to give proper and due notice of the approach of the car by ringing the bell or otherwise; (2) general negligence in running the car; (3) defective machinery and appliances of the car. The defendant relied upon the plea of not guilty.
At the trial, it was admitted by counsel for the respective parties that the trolley car which caused the injuries complained of was owned and operated at the time of the accident by the defendant company; that the tracks on Fourth Street on which the said trolley car was running were legally there and that the company had the right to operate its trolley cars on said tracks at that time; also that the defendant corporation was a corporation of the State of Delaware.
After three witnesses had testified as to the accident (none of whom had described the character of the injuries to the plaintiff resulting therefrom, but had only stated that they saw him thrown from the cab under the front of the car, saw him taken out and assisted over to the switch and saw blood upon his face), Samuel G. Elbert, a witness for the plaintiff and the attending physician was called to prove the extent of said injuries and the treatment given the plaintiff by him.
Counsel for defendant objected to the physician's testifying concerning the injuries to the plaintiff until the plaintiff himself, or some other witness, had been put upon the stand and had described and identified plaintiff's injuries and thus connected them with the injuries which the physician treated him for, contending that otherwise they would be deprived of the opportunity to cross-examine the physician to ascertain whether the injuries for which the plaintiff was treated were the identical injuries received in the said accident.
While we have frequently allowed the physician, as a matter of convenience to him, to testify out of order in a case of this kind, yet where it is objected to, as in this case, the orderly method to pursue is to first have the injuries described and identified either by the plaintiff himself or by some other witness who could so testify, and then to call the physician to testify to the nature and extent of those injuries. As the physician is called to speak of certain injuries which he saw some time after the accident happened and does not know of his own knowledge that those were the injuries actually received in this particular accident, we think the logical method to pursue is to prove the injuries first by competent testimony and then let the physician state his observations of those injuries. That is the logical method of procedure, and we see no reason for departing from it. We therefore sustain the objection.
William W. Cahall, was produced as a witness for plaintiff, and after testifying that he had worked for over a year as a motorman for the Wilmingtion City Railway Company, the defendant, on its different trolley car lines in the City of Wilmington, but at the time of testifying was a boiler-maker's helper, was asked by Mr. Rice the following question: "Is there a custom, general and uniform, established by the Wilmington City Railway Company, for its trolley cars to stop and allow a funeral procession to pass across its tracks without interruption?"
(Objected to by counsel for defendant on the ground that there was no allegation in plaintiff's declaration of any such custom and that the question was therefore irrelevant.)
Verdict for plaintiff for $ 3,000.
Levin Irving Handy and Herbert L. Rice for plaintiff.
Walter H. Hayes and Andrew C. Gray for defendant.
:--We admitted this same question, after objection and argument, in the case of Foulke vs. The Wilmington City Railway Company , although there it was not alleged in the declaration, on the ground that while there was no duty resting upon the defendant company to stop and allow a funeral procession to pass, yet if they had been in the habit of doing it and thereby induced on the part of drivers who were familiar with the custom the belief that they would stop, it entered into the question of the driver's negligence. We do not think it is necessary to be alleged in the declaration, and therefore overrule the objection.
Samuel Robinson, another witness for plaintiff, after he had testified that he had worked for the Wilmington City Railway Company as a motorman from May, 1905, until about the 14th or 15th of July, 1905, was asked the same question regarding the said custom. Counsel for defendant objected to the witness answering as to custom on the ground that the witness was not qualified to speak of any custom that existed in April, 1904, at the time of the accident, as his knowledge of the same did not begin until a year after the accident.
We sustain the objection to the question.
Everett Kandle, another witness for the plaintiff, after testifying that he was one of the drivers in the funeral procession in which the plaintiff was injured, on April 27, 1904, and saw the accident, also that he had driven funeral cabs in Wilmington for ten or twelve years, was asked the same question as above stated in regard to the custom of the Wilmington City Railway Company to stop its cars and let a funeral procession pass across its tracks without interruption. This was objected to by counsel for defendant on the same grounds as before stated and as irrelevant because it was not confined to the time of the accident.
The question in that broad form is objectionable, upon the ground stated by counsel for defendant. You must connect it with the time of this alleged injury.
The witness was then asked the following question: "Was there a custom at and before the 27th of April, 1904, general and uniform, established by the Wilmington City Railway Company for its cars to stop and allow a funeral procession to pass across its tracks without interruption?"
(Objected to by counsel for defendant on the grounds above stated and also as leading).
We overrule your objections and admit the question.
Q. Did you know the condition of Tatnall Street at its intersection with Fourth Street, at or just previous to April 27th, 1904, concerning the traffic on that street between two and four o'clock in the afternoon?
(Objected to by counsel for defendant as irrelevant, there being no allegation in the declaration covering the matter inquired about; that it was an effort to set up a duty on the defendant).
We have allowed that to go in in the case of Foulke vs. Wilmington City Railway Company to show whether it is a much-traveled street or otherwise. It is not a duty on anybody, but a condition of things surrounding the case. We overrule your objection.
When the plaintiff rested, counsel for defendant made the following motions:
(1) That the third count of plaintiff's declaration (as to defective machinery and appliances) be struck out, because there had been no evidence offered to support it; or (2) that as to the third count a nonsuit be entered for the lack of evidence to support it; or (3) that the jury be instructed to find a verdict for the defendant on the third count.
As to your separate motion to strike out the third count we think that that application, if made at all, should be made when the evidence is all in on both sides. Then if there be no evidence to sustain the count, we would instruct the jury that that count is out of the case. But as to your motion that a nonsuit be granted because there is no evidence to support the third count, we would remind counsel that with the third count (which is but one-third of the case), out there would still be remaining the first and second counts, and we cannot grant a nonsuit on a third of the case, and we cannot grant a nonsuit on the...
To continue reading
Request your trial