Wood v. Philadelphia, Baltimore And Washington Railroad Company

• Decision Date: 16 May 1910
• Court: Delaware Superior Court
• Parties: JOSEPHINE R. WOOD, widow of John W. Wood, deceased, v. PHILADELPHIA, BALTIMORE AND WASHINGTON RAILROAD COMPANY, a corporation of the State of Delaware

76 A. 613

24 Del. 336

JOSEPHINE R. WOOD, widow of John W. Wood, deceased, v. PHILADELPHIA, BALTIMORE AND WASHINGTON RAILROAD COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

May 16, 1910

Superior Court, New Castle County, May Term, 1910.

SUMMONS CASE (No. 70, November Term, 1909), by widow to recover damages for death of husband.

At the trial, the defendant offered in evidence the record and docket entries of a proceeding in divorce, instituted in the Superior Court for New Castle County, by John W. Wood against Josephine R. Wood, his wife, the plaintiff, which showed that a decree nisi had been entered, and the grounds upon which the proceeding was instituted. The record and entries further showed that after the death of John W. Wood, and before the expiration of one year from the entry of the decree nisi, the said decree was, on motion of his wife, vacated and set aside.

The admission of this evidence was objected to by the plaintiff.

Verdict for plaintiff for $ 2,000.

George L. Townsend, Jr., and J. Harvey Whiteman for plaintiff.

Andrew C. Gray and John F. Neary for defendant.

Judges CONRAD and WOOLLEY sitting.

OPINION

WOOLLEY, J.

As the plaintiff has instituted this action to recover for the loss occasioned her, as the widow of John W. Wood, by the death of her husband, but in the trial has limited her claim to damages for the loss, present and prospective, of her husband's support, which she was receiving at the time of his death or to which, under the law, she was entitled, as his wife, to receive from him, we are of opinion that, by proper evidence and in mitigation of damages, the defendant may show the extent of that loss by showing the extent of the support which she was receiving or which she was entitled to receive.

In mitigation of damages, and to show that the losses occasioned the plaintiff by the death of her husband, are less than what she claims, the defendant has offered in evidence the docket entries of a proceeding in divorce instituted in this Court by John W. Wood against Josephine R. Wood, his wife, who is the plaintiff in this action.

Without discussing the nature of those proceedings, it is sufficient to say, that the docket entries show the grounds upon which the divorce was sought, that the proceedings had not reached a final adjudication at the time of the petitioner's death, and that the marriage ties between the petitioner and his wife were not thereby dissolved.

In support of this tender, the case of Prettyman vs Williamson, 17 Del. 224, 1 Penne. 224, 39 A. 731, is cited to us, in which a certified copy of a legislative act of divorce was admitted in mitigation of damages. But the Prettyman case is readily distinguishable from the case at bar, in that the former was an action by a husband for the alienation of his wife's affections, and the divorce act when introduced, was admitted in evidence without objection to show that the husband did not resist the proceeding when instituted against him by the wife, and therefore the loss of her affections could not have been held by him to have been very considerable, while in the case at bar the plaintiff is not suing for the loss of her husband's affections but for the loss of the support which as her husband he afforded her or was bound to give her, and any bearing that the divorce proceeding against the plaintiff in this case may have upon the happiness of their marital relations, is outside of the issues and proves nothing as to the loss of support sued for, or the lack or the extent of support which her husband gave her. The cases are further distinguishable, in that the evidence admitted in the former case was a completed act of divorce, dissolving the ties of matrimony previously existing, while the evidence here tendered, shows an incomplete proceeding in divorce, not dissolving the ties previously existing, and if admitted, would present for trial in this case the collateral issue, impossible of certain determination, as to what would have been the final outcome of the proceeding, and that issue would have to be here tried, for the benefit of the defendant, when the mouth of the plaintiff as a party in the divorce proceeding is closed by death and his wishes and feelings unknown.

It is our opinion that in any event it would be improper to introduce in evidence simply the docket entries of the divorce proceeding, for if the proceeding is proper evidence at all, or has any evidential value upon the issues in the case, the record should be introduced. This record includes the petition which, like the docket entries, discloses the grounds upon which the proceeding was brought, being the ex parte statements of the petitioner, and unless he were here to testify and be cross-examined as to their truth, it is patent that they should not be presented to this jury or that this jury should not be influence by their nature.

These grounds or causes for divorce are as foreign to this case, as it is possible for one action at law to be distant from another, and the issues therein presented should be excluded from the trial of the issues of this case.

We think that neither the docket entries nor the record of the incomplete proceeding in divorce, constitute evidence competent to show that at the time of the husband's death, he was not rendering her the support which she is claiming in this case or which in law he was bound to render her. We are of opinion that the defendant, by proper evidence, may show that at the time of the husband's death, or for a period of time prior thereto, he gave his wife limited support or none at all, but we do not think that can be shown by either the entries or the record of the divorce proceeding, especially as that part of the record which the defendant particularly urges should be shown to the jury, is shown by the very entries themselves to have been vacated. In our judgment it is impossible to put in evidence something that was, but is not now. The objection is sustained.

WOOLLEY, J., charging the jury:

Gentlemen of the jury:--The Court in declining to give you binding instructions to bring in a verdict for the defendant, or to bring in a verdict for six cents damages for the plaintiff, under the evidence in this case, will not discuss the reasons for that declination.

This is an action brought by Josephine R. Wood, the widow of John W. Wood, for the recovery of damages for the death of her husband, alleged to have been caused by the negligence of the defendant.

The plaintiff claims that at the time of the death of her husband, the defendant was a common carrier of freight and passengers under contract with the United States Government to carry mail over the railroad operated by it between the City of Philadelphia in the State of Pennsylvania and the town of Delmar in the State of Delaware, and that her husband was a railway postal clerk, appointed by and in the employ of the postal service or Post Office Department of the Federal Government, and was assigned to the duty of collecting and distributing mail upon a route that embraced the railroad of the defendant within the terminals mentioned, and that while her husband, in the performance of his official duties was lawfully upon one of the defendant's mail and passenger trains, the defendant so negligently and carelessly managed its operation, that it came into collision with a locomotive engine, and caused his death,

In support of this general averment of negligence, the representations of the plaintiff, when summarized, appear to be, that by authority of the Government and because of his position as a railway postal clerk, her husband John W. Wood, was in the mail car of the passenger train of this defendant, known as the Norfolk Express southbound from Philadelphia and due to arrive at Delmar at two fifty-one o'clock on the morning of the twenty-second day of February, 1909.

That in approaching the town of Delmar, a signal known as D. A. Block and located about a mile north of the station at Delmar, was set "clear," which indicated that the track was clear and that the train had the right of way. That the train proceeded to the next signal, which is known as the Switchbox signal, located about five hundred yards north of the station at Delmar and which controls the track thence to the station. That this signal likewise showed "clear," and the train proceeded to a point within about two hundred and fifty yards of the station when it ran into and collided with the rear of a locomotive engine standing upon the same track, resulting in the wreck of the baggage and mail cars of the train. That the mail car in which was the plaintiff's husband, was set on fire and consumed, and that her husband was killed and burned.

It is further claimed that the switchman at the Switchbox signal gave notice of the approach of the train to the office of the yardmaster of the defendant at Delmar, and receiving from him no order to stop the train, permitted it to proceed in pursuance of an alleged rule of the defendant that passenger trains, unless ordered to be stopped by signal, have a clear track and the right of way. That the yardmaster at that time had the sole authority to control the approach of the said train and to direct and control the movements of all engines and trains in and about the yard at Delmar.

That being clothed with this authority, he ordered two engines of the New York, Philadelphia and Norfolk Railroad Company out of the switch and on to this southbound track of the defendant's road, in preparation for a change of engines when the train arrived. That these two engines stopped at the point of the subsequent collision, north of the Delmar station, because there was another...