Clayton v. Philadelphia, Baltimore & Washington Railroad, 30 Del. 343

Clayton v. Philadelphia, Baltimore & Washington Railroad

30 Del. 343 | Del. Super. Ct. | 1919

Pennewill, C. J.,

charging the jury:

This is an action brought to recover damages for personal injuries which the plaintiff alleges she sustained on account of the negligence of the defendant company.

It is admitted that the defendant company was operating the train of cars at the time of the accident. The plaintiff avers that, being a passenger on a train of the defendant on September twenty-second, 1916, travelling from Brenford to Dover, when the train had reached the northern part of the latter town, and a point at or near where Division street intersects the railroad tracks, the conductor said, “All out for Dover,” and that she got up and followed him and he said, “Get off.”

The conductor denies that he told the plaintiff to get off or announced, “All out for Dover.” He insists that he has no recollection that the plaintiff was on the train on the night in question.

*348[1] This suit is based on negligence, and the plaintiff cannot recover at all unless the jury are satisfied from the preponderance of the testimony that her injuries were caused by the negligence of the defendant company. Negligence is the want of ordinary care, that is, such care as an ordinarily prudent and careful person would use under similar circumstances; and in the present case it was the care that such a person would have used under the conditions existing at the time, including the company’s knowledge, if any it had, of the physical and mental condition of the plaintiff.

[2, 3] Negligence we may say is never presumed. It must be proved, and the burden of proving it is on the plaintiff. And even though the defendant was negligent there could be no recovery unless such negligence was the cause of the injury complained of.

If the defendant was guilty of no negligence, the plaintiff cannot recover no matter what injuries the plaintiff may have received or what caused them.

[4] A pure accident without negligence on the part of the defendant is not actionable, and if the jury should believe from all the evidence that what happened in this case was of such a character, it would come under the head of unavoidable accident- and the plaintiff cannot recover.

[5] If the plaintiff’s injuries were caused by the plaintiff’s own negligence, or want of ordinary care, that contributed to or entered into the accident and was operating at the time, she would not be entitled to recover even though the defendant was also negligent, because the law will not permit a person to recover damages from another if such person’s own negligence caused the injury.

Where there is mutual negligence, that is, where the negligence of each party is operative at the time of the accident, no action can be sustained.

[6, 7] If you find it is proved in this case, that the defendant company had knowledge of the plaintiff’s feeble condition the care required to be exercised was such as such condition reasonably required. But, if the defendant had no such knowledge, it *349was not required to use greater care because of her condition. But in no event was the plaintiff released of exercising care in getting off the train. She was required to use her senses and avoid all danger so far as she could in the exercise of proper care. She had no right to attempt to get off the train when it was in rapid motion, even though she was directed to do so.

[8, 9] Where a passenger acts in conformity to a permission or direction given by a conductor or other agent of the carrier, acting within the scope of his employment, and such conduct on his part will not expose him to a known or apparent danger which a prudent man would not incur, he will not be guilty of contributory negligence, although his conduct may result in bringing injury on him. Misdirections by persons in charge of a.train as to the proper place for passengers to get off will render the carrier liable to one who, acting in reasonable reliance on the directions given, is injured.

[10] An illustration of this principle is furnished by cases with reference to injuries received by a passenger who attempts to get on board of, or alight from, a train while moving. Such an act is generally regarded as contrary to reasonable prudence, but, if it is done in response to the invitation or direction of the person in charge of the train, the passenger may thereby be exonerated from fault. But this is not true if the act is manifestly, to the judgment of a reasonable person, imprudent, or contrary to the authority of the employee who gives the direction. The mere advice or- counsel of those in charge of the train as to getting on or off while the train is in motion will not be enough to excuse the passenger in doing a negligent or wrongful act. 10 C. J. 1104.

[11, 12] If the trainman announced “All out for Dover” and followed that by saying to the plaintiff, “Get off,” it is for the jury to say whether the plaintiff was warranted in believing that she was ordered to get off before reaching the station, taking into consideration the condition of the plaintiff. If you should be satisfied by a preponderance of the testimony that the plaintiff’s injuries were caused by the negligence of the defendant company, and that the negligence of the plaintiff did not proximately *350Contribute to the accident, your verdict should be in favor of the plaintiff, and for such sum as will reasonably compensate her for the injuries sustained, including her pain and suffering in the past as well as for the future, her loss of time and wages and money expended for medical treatment, and also for any permanent injuries which may impair her earning ability hereafter.

But if you are not satisfied that the negligence of the defendant company caused the accident, or should believe that the plaintiff’s own negligence contributed proximately thereto, your verdict should be for the defendant.

Verdict for defendant.