Wollaston v. Stiltz
| Decision Date | 29 March 1921 |
| Citation | 114 A. 198,31 Del. 273 |
| Court | Delaware Superior Court |
| Parties | IVA WOLLASTON, an infant by her next friend, Charles P. Wollaston, v. ALFRED C. STILTZ CHARLES P. WOLLASTON v. ALFRED C. STILTZ |
Superior Court for New Castle County, March Term, 1921.
SUMS. CASES, Nos. 49 and 50, March Term, 1920.
Actions by Iva Wollaston, an infant, by her next friend, Charles P Wollaston, against Alfred C. Stiltz, and by Charles P Wollaston against the same defendant, which were tried together. Verdict in each case for defendant.
The facts sufficiently appear in the charge of the court.
Counsel for plaintiffs prayed the court to charge the jury as to the law of the road, and that it is negligence for a vehicle not to be on the right side of the road.
Counsel for the defendant prayed the court to charge the jury:
Even if the jury believe that the defendant's servant was driving the bus on the left side of the highway at the time of the accident, nevertheless, if the presence of the defendant's bus upon the left side of the highway and the consequent injury to the plaintiff were due to circumstances which were consistent with proper caution on the part of the servant, and which discharged his master from the imputation of negligence, then the verdict should be for the defendant. Grier v. Samuel, 4 Boyce, 74, 76, 85 A. 759.
The basis and gist of this action is negligence, and before a recovery can be had by the plaintiffs, it must be shown that the defendant negligently violated some duty which he owed to the infant plaintiff. Negligence has often been defined by this court to be the want of ordinary care; that is, the want of such care as a reasonably prudent and careful person would exercise under similar circumstances. Negligence is never presumed. It must be proved and the burden of proving to the satisfaction of the jury that the accident in question was caused by the negligence of the defendant rests upon the plaintiff. Travers v. Hartmann, 5 Boyce, 302, 306 92 A. 855.
An accident which could not be prevented by the exercise of ordinary care and prudence is termed an unavoidable accident, and if you should believe from the evidence that the collision in question was of such a character the plaintiff is not entitled to a recovery. Travers v. Hartmann, 5 Boyce, 302, 307, 92 A. 855.
Even though defendant's driver was negligent in being on the left side of the road, yet if plaintiff, by reason of the lights on the bus or otherwise, had reasonable opportunity to know her danger and avoid it, and negligently failed to do so, or if in any way the accident was attributable to the negligence of the driver of defendant's bus with that of the plaintiff, in either case plaintiff cannot recover.
Verdict, in each case for defendant.
L. Irving Handy for plaintiffs.
Charles F. Curley and George L. Townsend, Jr., for defendant.
CONRAD, J. charging the jury:
You are trying two cases growing out of the same alleged accident: First, Iva Wollaston, a minor, by her next friend, Charles P. Wollaston, her father, seeks to recover damages from Alfred C. Stiltz, the defendant, for injuries claimed by her to have been caused by the negligence of the defendant. Second, Charles P. Wollaston, the father, claims damages or compensation for money expended by him for professional and medical services given to the daughter, and made necessary by reason of said accident.
The plaintiffs claim that on the evening of January 22, 1919, Iva Wollaston, one of the plaintiffs, was walking on the westerly side of the Depot road, a public highway, heading southward from the town of Newark to the Pennsylvania Railroad station in this county. That she was in company with two girl companions. That they were walking southward on said road, and on the right-hand side thereof. That the evening was dark with an unusually heavy mist or fog prevailing. That the three girls heard an automobile passenger bus or truck approaching from the south in the opposite direction from which they were walking. That, owing to the fog and darkness, the approaching vehicle could not be clearly seen. That a man in a buggy approached the girls from behind and hallooed to them to avoid danger by jumping in the ditch on the right side of the road. That the girls, heeding the warning, jumped into the ditch. That the automobile bus struck Iva Wollaston and she was carried home by a bystander. The claim is that the driver of the automobile bus was negligent in...
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