Wilmington City Railway Co. v. White

• Decision Date: 18 June 1907
• Court: United States State Supreme Court of Delaware
• Parties: THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware, defendant below, plaintiff in error, v. JAMES R. WHITE, plaintiff below, defendant in error

66 A. 1009

22 Del. 363

THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware, defendant below, plaintiff in error, v. JAMES R. WHITE, plaintiff below, defendant in error

Supreme Court of Delaware

June 18, 1907

Supreme Court, January Term, 1907.

WRIT OF ERROR to the Superior Court for New Castle County.

Judgment affirmed.

Walter H. Hayes and Ward and Gray for plaintiff in error.

Levin Irving Handy and Herbert L. Rice for defendant in error.

NICHOLSON CH., and SPRUANCE and BOYCE, J. J., sitting.

OPINION

BOYCE, J.

This action was brought in the Superior Court for New Castle County by James R. White, the plaintiff below, against The Wilmington City Railway Company, the defendant below, for the recovery of damages for personal injuries, alleged to have been occasioned by the negligence of the defendant company.

The plaintiff, in his declaration, containing, as amended, three counts, alleged that the defendant company negligently and carelessly (1) omitted to give reasonable notice of the approach of one of its cars in time to avoid a collision with a coach driven by the plaintiff; (2) so operated the car as to collide with the coach, whereby the plaintiff was hurled from the coach to the surface of the street and injured; and (3) used the car with defective brakes, and by reason thereof the collision and injury occurred.

The injuries complained of were caused by the collision of a car of the defendant company with a coach driven by the plaintiff, in a funeral procession, at the intersection of Tatnall Street and West Fourth Street, in the City of Wilmington, between the hours of two and three, on the afternoon of April the twenty-seventh, A. D. 1904.

The plaintiff's coach was the fifth in order behind the hearse, and the procession was moving slowly and northward along Tatnall Street with four or five feet of space between the horses of one coach and the rear of the coach ahead. The car was approaching Tatnall Street on the eastward-bound track of the defendant company on West Fourth Street. West Street is west of, next to, and parallel with Tatnall Street. It is conceded that the distance between Tatnall and West Streets is about one hundred and ninety feet, and that the fall or down grade on Fourth Street from West to Tatnall is ten and nine-tenths feet in each hundred feet of the distance between them. The day upon which the accident occurred was said to be drizzly and rainy. Tatnall Street from building line to building line was shown to be forty-nine feet wide and Fourth Street, eighty-two feet, six inches wide.

The defendant company has two tracks laid on Fourth Street. The plaintiff testified that he was an experienced driver; that he was sitting on the outside, and on a level with the top of his coach; that he first saw the car when he passed the building line on the southerly side of Fourth Street; that the car was then stopped with the hind part at the crossing on the east side of West Street; that he then looked towards Market Street and saw a car coming west; that he did not watch the car at West Street; that just before he reached the corner on the southerly side of Fourth Street, the driver ahead of him held out his hand to that part of the hill and signalled to the car to stay there, judging from the way he held his hand; that after he glanced at the car, he did not look at it again until he heard the ringing of the bell when his front wheel was on the first rail of the east-bound track and his horses had cleared the track; that the car was from eight to fifteen feet away from him; that he first heard the bell just before the car hit him. The speed of the car coming down the hill, was said to be from eight to twelve miles an hour.

The plaintiff, against objections and exceptions, was permitted to introduce evidence of a custom or usage of the defendant company to stop its cars to allow a funeral procession to pass across its tracks without interruption or break in the line; that he knew of the existence of the custom and that between two and three o'clock in the afternoon the wagon travel on Tatnall Street, at and near Fourth Street, was heavy.

There was some conflict of testimony respecting facts material to the issue.

When the plaintiff had rested his case, counsel for the defendant moved:

"First. That the third count of the plaintiff's declaration, as to defective machinery and appliances, be struck out, because there had been no evidence to support it; or

"Second. That as to the third count a nonsuit be entered for the lack of evidence to support it; or

"Third. That the jury be instructed to find a verdict for the defendant on the third count."

The Court overruled each of said motions and exceptions were noted. The defendant, having closed its testimony, counsel for the plaintiff abandoned the third count in his declaration. Respecting the said count, the Court said, in part: "The third count, as to defective machinery, is not before the jury and not to be considered by the jury."

Counsel for the defendant then requested "the Court to give the jury binding instructions to find a verdict for the defendant, on the remaining counts." The request was not granted, and the plaintiff had a verdict.

To the refusal of the Court to give binding instructions and to certain rulings as to the admission of testimony, the defendant took a bill of exceptions; and its counsel have assigned eleven errors. The first of these is: The Court below erred in refusing to instruct the jury to find a verdict for the defendant, because, as it was contended, the evidence disclosed (1) that the plaintiff was guilty of contributory negligence, and (2) that there was not any breach of duty on the part of the motorman in charge of the car which the defendant owed to the plaintiff.

It was conceded that the Court below stated correct propositions of law in that part of its charge to the jury as follows:

"While the speed of trolley cars is not limited by law, yet in approaching such crossing it was the duty of the motorman to make the descent at such reasonable speed as not to put the car beyond his control; and as the danger of collision increased, if he saw or could see the danger, it was his duty to use all the means in his power to check or stop the car.--(Price vs. Warner Co., 17 Del. 462, 1 Penne. 462, 42 A. 699.)

"This does not impose upon the motorman, however, an impossibility. If he in fact did all that he could to control the speed of the car, under the circumstances, the company would not be liable.

"It was, however, equally the duty of the plaintiff, the driver of the team, to use all reasonable care and precaution to prevent the accident.

"We will not attempt to specify the precise acts of precaution which are necessary to be done, or omitted by one in the management of an electric car, or by one in the management of or driving a wagon approaching a railway crossing. Such acts must depend upon the circumstances of each case, and the degree of care required differs in different cases. The general rule is that the person in the management of the car and the person driving the wagon are bound equally to the reasonable use of their sight and hearing for the prevention of accidents, and to the exercise of such reasonable caution as an ordinarily careful and prudent person would exercise under the circumstances of a particular case.

"A person approaching a railway crossing with which he is familiar, is bound to avail himself of his knowledge of the locality and act accordingly. If the approach of the railway to the crossing be down a steep grade, whereby it is more difficult to stop or check a car, the driver of the vehicle should exercise more care than might be necessary where the approach of the railway was by a slight decline, upon a level, or by an ascending grade. If as he approaches the crossing his line of vision is unobstructed, he is bound to look for approaching cars in time (if possible) to avoid collision with them, and if he does not look, and for this reason does not see an approaching car until it is too late to avoid a collision, he is guilty of negligence.

Snyder vs. People's Ry., 20 Del. 145, 4 Penne. 145, 148-9, 53 A. 433. Brown vs. Railway Co., 17 Del. 332, 1 Penne. 332, 40 A. 936;

"Both the company and the driver of the team, the plaintiff in this case, were required to use such reasonable care as the circumstances demanded, an increase of care on the part of both being required when there is an increase of danger.

"The right of each one using the highway must be exercised with due regard to the right of the other, and in a reasonable and careful manner, so as not unreasonably or unnecessarily to abridge or interfere with the right of the other.

"Some of the witnesses have testified that they heard the car bell ring coming down the hill, others that they did not hear it ring. The testimony of the former witnesses, is, of course, of more weight than that of those who merely say they did not hear the bell ring; which might reasonably be attributed to a want of attention at the time. Such negative testimony is usually of little value.

( Q. A. R. R. Co. vs. Reed, 21 Del. 226, 5 Penne. 226, 59 A. 860.

It was contended that these instructions, applied to the facts in the case, entitled the defendant to the peremptory instruction requested.

In every action for negligence two things are requisite to entitle the plaintiff to a recovery: (1) negligence on the part of the defendant; and (2) due care on the part of the plaintiff. In every such action, the question "Whose negligence was the proximate...