Du Ross v. Philadelphia, Baltimore & Washington Railroad, 28 Del. 467

Du Ross v. Philadelphia, Baltimore & Washington Railroad

28 Del. 467 | Del. Super. Ct. | 1915

Conrad, J.,

delivering the opinion of the court:

[1] The law applicable to cases of personal injuries based on negligence is very generally covered by the reported decisions in this state, but our courts have found it impossible to make a fixed rule to govern the question of contributory negligence as to when contributory negligence can be found, under the evidence, as a conclusion of law, or when it should be submitted to the jury as a question of fact. The question must be determined by the facts and circumstances of each particular case. The court will not decide the question as one of law, although the weight of evidence may seem to be on one side or the other, if the testimony be conflicting, or where, from the evidence a doubtful or uncertain conclusion only can be drawn. Under such circumstances the question should go to the jury.

[2] On the other hand if the evidence clearly shows contributory negligence, proximately entering into and contributing to the accident, at the time of its occurrence or when-the plaintiff has failed to show any negligence on the part of the defendant as *470alleged, it is then clearly the province and duty of the court to so find as a matter of law.

The rule adopted by our courts is this, that in actions for presonal injuries a nonsuit will be granted or a verdict for defendant directed in those cases only “where it is clearly manifest as a conclusion of fact, or by necessary exclusive inference, that those acts which the law regards as negligent have not been shown, or to those cases in which contributory negligence has been shown.”

[3] The law regards a railroad crossing as a place of danger. The presence of such a crossing is notice to the person approaching it of the danger of collision with a passing train; and because of the danger, the law imposes upon such person the duty to use reasonable care and caution, and demands that he should use and exercise his senses of sight and hearing both for his own safety and protection, and that of others, and failing to do this he incurs the peril of any danger arising therefrom, and cannot recover for an injury that grew out of his own omission or neglect.

If a person, without the exercise of due and reasonable care to ascertain the approach of a train, drives up to and upon a railroad crossing, and injury occurs to him from a passing train, such person is guilty of contributory negligence.

[4] From the facts and circumstances established by the evidence in this case, the court is convinced that the plaintiff had the opportunity or ability to see the approaching train in time to avoid the accident if he had exercised due care in the use of his senses, for if the plaintiff did look and listen before he drove upon the crossing he must have seen or heard the approaching train in time to have avoided the accident.

There was nothing that occurred at or about the time of the accident in any of the surrounding circumstances to prevent the plaintiff from seeing or hearing the approaching train if he did look and listen as it was his duty to do before attempting to cross the tracks.

Where the surroundings of the railroad crossing, as shown in this case; are such as to make it certain that the plaintiff, about to cross the tracks, could have seen the approaching train *471in 'time to have averted the collision, if he had looked in time to have prevented it, he cannot be heard to say that he looked, but did not see, but he will be held to have seen what was obvious. Evans v. P., B. & W. R. R. Co., 2 Boyce (25 Del.) 370, 80 Atl. 625.

After a careful consideration of the arguments of counsel on defendant’s prayers for binding instructions, we are convinced that it clearly appears from the evidence that the plaintiff was guilty of contributory negligence, proximately entering into and contributing to his injury, at the time of the accident, and that he has failed to show those acts of negligence upon which he relies to support his action, and which he must establish before he has the right to recover.

It therefore becomes the duty of the court to instruct the jury to return a verdict for the defendant.

In reaching this conclusion we think it proper to say that it is the inherent weakness of plaintiff’s case, and not from the fault or failure of counsel for the plaintiff to perform their full duty in the trial of the case.

Gentlemen of the jury:—For the reasons assigned, the court instructs you to find a verdict for the defendant.

Verdict for defendant.

A motion for a new trial was heard and denied.