24 Del. 185 | Del. Super. Ct. | 1910
charging the jury:
Gentlemen of the jury:—This action is brought by the plaintiff Angello Cecchi, an infant, by his next friend Rafaelo Cecchi, against the defendants Nancy E. Lindsay and Joseph Horace Lindsay, her husband, to recover damages for personal injuries which he alleges he sustained by reason of being run into, knocked down and run over by an automobile driven and operated by Nancy E. Lindsay, one of the said defendants, on the twenty-fourth day of March, A. D. 1909, on one of the public streets of the City of Wilmington.
The plaintiff, a child about six years of age, by his next friend, contends that the said automobile was being run and operated along Tatnall Street in a northerly direction and that it turned at Sixth Street and proceeded in a westerly direction; that at the intersection of these two streets it was being run and operated, (1) in a negligent and careless man
The plaintiff further contends that as a result of the negligent .and careless manner in which the automobile was operated, he was struck by the same, knocked down, and that one of its wheels passed over him breaking his clavicle or collar bone and otherwise bruising and injuring him.
The defendants contend that they are not liable in this action because the said accident was not caused by any negligence on the part of the person operating the automobile, but on "the contrary the operator used all necessary and reasonable care to avoid the accident of which the plaintiff complains; and they insist that the injury was caused by the carelessness of the plaintiff in running in front of the machine at a time when it was too late for the driver to either stop the machine or change its course.
It is not denied that Sixth Street, upon which the accident in question occurred, is a public highway. A public highway, this Court has declared, is open in all its length and breadth to the reasonable, common and equal use of the people, on foot or in vehicles. The owner of an automobile has the same right as the owner of other vehicles to use the highway, and like them he must exercise reasonable care and caution for the safety of others.
A traveler on foot has the same right to the use of the public highway as an automobile or any other vehicle. In using such highway all persons are bound to the exercise of reasonable care to prevent accidents. Such care must be in proportion to the danger in each case. It is the duty of a person operating an automobile, or any other vehicle upon the public highway, to use reasonable care in its operation, to move it at a rate of speed reasonable under the circumstances, and cause it to slow up or stop if need be, when danger is imminent.
The person having the management of the automobile and the traveler on foot are both required to use such reasonable care,, circumspection, prudence and discretion as the circumstances, require; an increase of care being required where there is an increase of danger. And both are bound to the reasonable use of' all their senses for the prevention of accident, and the exercise of all such reasonable caution as ordinarily careful and prudent persons would exercise under like circumstances. The more dangerous the character of the vehicle or machine, and the-greater its liability to do injury to others, the greater the degree of care and caution required in its use and operation. And a. person traveling by foot on a public street is required to use reasonable care to avoid collision with a vehicle, and if he saw the vehicle before it struck him, or by the reasonable use of his. senses could have seen it in time to avoid the injury, it is his duty-to do so.
This action is based on negligence, which has been defined 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. With respect to the matter of negligence we may say to you that certain things are, or amount to, negligence in law, whether any active or positive negligence be proved or not. By the laws of this State it is provided that “No person * * * shall operate a motor vehicle * * * upon the-public streets, roads, turnpikes, or highways of this State unless he has first obtained from the Secretary of State a license.”’ (Sec. 4 Chap. 120 Vol. 25, Laws of Del. 215. ) The violation of this law is negligence per se, that is, an act of negligence itself, and renders the wrong-doer liable for an injury resulting from such misconduct.
The defendants admit that the operator of the machine did not have in her possession, at the time of the accident, the license
The chief question, therefore, to be determined by you in this case is whether the plaintiff was negligent and whether such negligence, if any, contributed to and entered into the accident •at the time the injuries were received, for if it did he cannot recover, even though the operator of the machine was guilty of negligence, because the plaintiff himself would be guilty of contributory negligence. The plaintiff, however, would be entitled to recover notwithstanding there had been some negligence on his part if it was the negligence of the defendants alone that was the proximate or immediate cause of the accident. In other words, if, notwithstanding any previous negligence of the plaintiff, the •operator of the machine could have prevented the accident by the use of ordinary and reasonable care the want of such care makes the defendants liable. And while a plaintiff will not be held guilty of contributory negligence who in the effort to avoid immediate danger, in the exigency of the moment, suddenly and without time or opportunity for reflection, puts himself in the way of other perils without fault on his part, and particularly so if the defendants have placed him in such position; yet if the plaintiff walked or ran into a danger that the observance of due care would have enabled him to avoid and is thereby injured, he would be guilty of contributory negligence.
In determining whether or not the plaintiff was guilty of contributory negligence we say to you that the conduct of children should not be judged by the same rules which govern that of adults; and while it is their duty to exercise ordinary care to avoid the injuries of which they complain, ordinary care for them is that degree of care which children of the same age, of ordinary ■care and prudence, are accustomed to exercise under like circum
When the testimony is conflicting, the jury should endeavor to reconcile it so that the whole may be harmonious. If this cannot be done, then it becomes the duty of the jury to estimate and weigh in their minds the value of the testimony on the respective sides, and give their verdict to that side upon which the testimony is of the greatest weight or preponderance and most worthy of credit. In estimating such weight the jury are to consider the witnesses’ means of knowledge of the facts about which they speak, their intelligence, apparent truthfulness and fairness, and any other facts or circumstances shown by the evidence with respect to the witnesses that show the reliability of their statements.
Now, gentlemen, if you believe from the evidence that the injuries to the plaintiff were caused by the negligent running and operation of the machine by Nancy E. Lindsay, one of the defendants, and that the plaintiff was free from any negligence that contributed to the accident, your verdict should be in favor of the, plaintiff. Or if you believe that the said defendant was operating the machine without a license from the Secretary of State, this would amount in law to negligence, and if the plaintiff was free from any negligence that contributed to the accident, your verdict should be in favor of the plaintiff; otherwise you should find for the defendant.
And we further say to you that if you believe that there was any negligence on the part of this plaintiff, operating at the time of the accident which contributed to the injuries he received, your verdict should be in favor of the defendant,
If you find for the plaintiff your verdict should be for such a sum only as will reasonably compensate him for his pain and suffering in the past, and such as may come to him in the future, resulting from the accident.
Verdict for plaintiff for $270.
