26 Del. 253 | Del. Super. Ct. | 1912
charging the jury:
Gentlemen of the jury:—-This is an action brought by the plaintiff, Martha B. Culbert, against the Wilmington and Philadelphia Traction Company, the defendant, for the recovery of damages for personal injuries which the plaintiff alleges she sustained as the result of the defendant’s negligence.
There are several averments of negligence in the plaintiff’s declaration, including the running of the car which injured the plaintiff at an improper and dangerous rate of speed, running said car without giving any or suitable warning of its approach, and the failure to use reasonable care to stop said car after the dangerous position of the plaintiff was seen, or by the exercise of reasonable care could have been seen, by the servant of the defendant having control of the car.
The averment of negligence, based upon the rate of speed at which the car is alleged to have been run, has been abandoned by the plaintiff, and therefore you will not consider such averment.
The plaintiff claims that on March 1, 1911, she got off one of the defendant’s cars at Fourth and Harrison streets in this city, at which point the defendant maintains double tracks, and passed around the rear end of the car for the purpose of crossing to the other side of the. street; that when she had passed around the
The defendant denies that it, or its servants in charge of the car, were guilty of any negligence from which the injuries complained of were inflicted; but, on the contrary, insists that its servants were, at the time of the accident, in the exercise of reasonable and proper care; and that the accident was occasioned solely by the negligence of the plaintiff herself. And the defendant contends, that immediately before, and at the time of the accident, the motorman in charge of the eastbound car neither knew, nor by the exercise of reasonable care might have known, of the presence or perilous position of the plaintiff in time to have avoided the accident.
It is admitted in this case that the car in question, No. 22, which is alleged to have run into the plaintiff, was operated at the time by the defendant company by means of electricity; that the company was a corporation; that it was lawfully authorized to operate its cars and this particular car on West Fourth Street. It is also admitted that there was a double track at the place of the accident, and that the company were running both the east and west bound cars, and doing so, under authority of the law; that the accident occurred at Fourth and Harrison streets, and it is also admitted that said streets are public streets of the City of Wilmington.
We decline to instruct you to return a verdict for the defendant as requested in its first prayer, because we think the case should be submitted to the jury, for their determination upon the evidence after applying thereto the law as we shall state it.
This action is based upon the negligence of the defendant company; and if the injuries of which the plaintiff complains were not the result of the negligence of the defendant, the plaintiff cannot recover.
[1] Negligence is the failure to exercise ordinary care, that
[2] Negligence is never presumed. It must be proved, and the burden of proving it rests upon the plaintiff. There is no presumption of negligence, either upon the part of the plaintiff or on the part of the defendant, from the mere fact that the plaintiff was injured by a collision with a car of the defendant.
[3] Whether negligence exists in a particular case is a question of fact to be determined by the jury.
[4] To entitle the plaintiff to recover at all it must have been shown to the satisfaction of the jury by a preponderance of the evidence, that the negligence which caused the accident and injuries was the fault of the defendant, and that the plaintiff was not guilty of any negligence which entered into and contributed thereto.
.[5] But by a “preponderance of the evidence” is not meant necessarily the number of witnesses, but the weight of the testimony when properly and carefully considered by the jury. .
[6] A pure accident, without any negligence on the part of the defendant, is not actionable, and if the jury should believe from all the evidence that such was the character of the plaintiff’s collision with the defendant’s car, it would come under the head of unavoidable accident, and the plaintiff cannot recover.
[7] The term ordinary care and diligence, when applied, to the management of electric cars in motion may be understood to import all the care, circumspection, prudence and discretion, which the particular circumstances of the place and occasion require of the servants of the defendant company; and this will be increased or diminished as the ordinary liability to danger, accident and injury is increased or diminished in the movement and operation of such cars.
[8] What is due and proper care depends upon the facts in each case. A person approaching a railway track or who attempts.
[9] The public as well as the defendant company, were entitled to use said highway. In using the highway all persons are bound to the exercise of reasonable care to prevent collisions and accidents. Such care must be in proportion to the danger of the peculiar risks in each case. It is the duty of the company to see that its servants in charge of the cars use reasonable care in operating them; that the cars move at a reasonable rate of speed; that they slow up, or stop if need be, where danger is imminent and could, by the exercise of reasonable care, be seen or known in time to prevent accident; and that proper warning be given of the approach of the car at a crossing on the public highway. There is a like duty of exercising reasonable care on the part of the traveler. The company and the traveler are both required to use such reasonable care as the circumstances of the case demand; an increase of care on the part of both being required where there is an increase of danger. The right of each must be exercised in a reasonable and careful manner, so as not unreasonably to abridge or interfere with the right of the other. We are not prepared to lay down any absolute rule as to what precise acts of precaution are necessary to be done, or left undone, by persons who may have need to cross the tracks of electric railways. Nor will we attempt to specify the acts of precaution which are necessary to be done, or omitted, by one in the management of an electric car. Such acts necessarily must depend upon the circumstances of each particular case. The general rule is that the person in the management of the car, and the person approaching a car or crossing a railway track, are bound to the reasonable use of their senses of sight and hearing for the prevention of accident; and also to the exercise of all such reasonable caution as ordinarily careful and prudent persons would exercise' in like circumstances. 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, as he attempts to cross the tracks of the company, his line of vision is obstructed, he is bound to look for approaching
[10] Due care in the case of the company means, ordinarily, the timely employment of sufficient signals or warnings, giving notice of the approach of trains to public places, such as highways or street crossings; and in the case of individuals due care means proper circumspection in looking or listening, or both, when practicable, to avoid collision; and the greater the peril to the individual, the greater the duty of exercising care by the company, and of prudence and caution on the part of the individual. This, after all, is but common sense, the force of which must be evident to all. If the defendant failed to make use of the usual and appropriate means to warn the plaintiff at the time of the accident, such failure was negligence on its part, and if the accident occurred by reason thereof, it would be liable, provided the plaintiff did not by her own carelessness contribute in some degree proximately to her injury. Short v. P., B. & W. R. R., 7 Penn. 108, 112, 76 Atl. 363.
[11] Where the railway approaches the crossing at a down grade, or where the view of the railway from the crossing street is obstructed by buildings or otherwise, greater care is required of the person in charge of the car than where the approaches of the railway to the crossing are at the grade of the crossing, or where the view of the railway is unobstructed.
At a street crossing, the motorman in charge of a car approaching another car discharging passengers is bound to keep a careful lookout for passengers, or other persons who may attempt to cross the tracks behind the standing or moving car, to have his car under proper control, and give such signals as are proper and necessary to protect travelers who are in the exercise of ordinary prudence. But even under such circumstances the company would not be liable if the person injured could have avoided the injury by exercising such care and caution as a prudent person would have exercised under like circumstances.
[13] The plaintiff, however, would be entitled to recover notwithstanding there had been some negligence on her part, if it was the negligence of the defendant alone that was the proximate or immediate cause of the injury.
[14] In every case each party has the right to presume that the other party will do his duty—exercise due care—but such presumption in no wise relieves either party from the duty of exercising ordinary and reasonable care on his own part.
[15] As the plaintiff, in actions of this character, must sustain his allegations of negligence by satisfactory proof before he can recover, so the defendant, when he relies upon contributory negligence on the part of the plaintiff, to escape liability, must satisfy the jury by a preponderance, or weight of evidence, that contributory negligence on the part of the plaintiff was the proximate cause of the injury complained of.
Negligence on the part of the motorman or servant in charge of the car in question would of course be the negligence of the company. Any failure of either the plaintiff or defendant to exercise such care and prudence as was reasonably required under the circumstances the jury may consider an evidence of negligence.
[16] If the jury find from the evidence that there had been a uniform and continuous practice of the defendant company to sound the gongs of its cars when passing standing cars, and that such practice or course of conduct was known to, and relied upon, by the plaintiff at the time of the accident, such facts may be taken into account by them in estimating the degree of diligence required of the plaintiff in looking out for an approaching car before she crossed the eastbound track.
[17, 18] If you find under the evidence that the motorman
As was said in the case of Heinel v. Peoples Railway Co., 6 Penn. 428, 67 Atl. 173, recently tried in this court: “If the plaintiff moved from a position of safety to a position of danger near or upon the track of the railway on which the car was running, so suddenly as to make it impossible, for the motorman to stop the car before the collision, the defendant cannot be held liable for the resulting injury to the plaintiff; so, if the motorman, after he saw, or by the exercise of reasonable care could have seen the plaintiff in a position of danger, did everything that a reasonably careful and prudent man would do under like circumstances to prevent the accident, the defendant would not be liable.’’
[19, 20] As a general rule, direct or positive evidence of a fact is entitled to greater weight than evidence of a merely negative character. You, however, are the sole judges of the credibility of the witnesses and of the weight and value of their testimony. Your verdict in this case should be in favor of that party for whom there is the preponderance or greater weight of the evidence. If you are satisfied from the preponderance and weight of the evidence, taking into consideration all the facts and circumstances of the case, that the injury to the plaintiff was caused by the negligence and carelessness of the defendant company, without fault on his part, then your verdict should be for the plaintiff. Lenkewicz v. Wil. City Ry., 7 Penn. 64, 69, 70, 74 Atl. 11.
Positive testimony, as we have said, is entitled to greater weight than negative testimony, especially if the latter should be unaccompanied by facts and circumstances showing an attentive attitude of the witness, testifying thereto, respecting the matter to which they testify. Whether the motorman did, or did not,
[21] Whenever there is a conflict of testimony in a case, it is the duty of the jury to reconcile such conflict if they can; but if they cannot do so, they should accept and be governed by that which they consider, under all the circumstances, most worthy of credit and belief, having regard to the apparent fairness, bias, prejudice and interest of the witnesses, if any there be, their' opportunities of knowing the things about which they testify, and their recollections thereof, as well as any other facts and circumstances which will aid in determining the truthfulness and correctness of the testimony given in the case.
[22] If you are satisfied from the preponderance and weight of the evidence, taking into consideration all the facts and circumstances of the case, that the injury to the plaintiff was caused by the negligence and carelessness of the defendant company, without fault on her part, then your verdict should be for the plaintiff, and for such sum as will reasonably compensate the plaintiff for her pain and suffering both past and present, for her loss of time from her affairs, and her pecuniary loss from her impaired ability to attend to her necessary work and business in the future, and also for any expenses shown by the testimony to have been incurred by her for medicines, medical, and hospital treatment, on account of such injury.
In conclusion, gentlemen, we say that the simple and only duty you have to perform in this case is to determine whether the plaintiff is entitled to recover anything from the defendant, and if you find she is entitled to recover, then you must ascertain the amount of her damages. Both of these conclusions you must reach after a careful, fair and conscientious consideration of the evidence and the law. Your verdict should be based on nothing but the testimony of the witnesses and the law as we have stated it.
Neither sympathy nor prejudice, for or against one party or the other, should in the slightest degree influence you in reaching your verdict, and we do not believe it will. It will not matter to you who the parties are, your only thought and consideration will
It may be entirely unnecessary to make such suggestions as these to gentlemen of your intelligence, integrity and standing, but we have deemed it proper and fitting to do so in view of the importance of the case to the parties concerned, and your grave responsibility in determining their rights.
Verdict for plaintiff.
