Duggan v. New Jersey & Wilmington Ferry Co.

23 Del. 318 | Del. Super. Ct. | 1909

Boyce, J.,

charging the jury:

Gentlemen of the jury:—This action was brought by William Francis Duggan an infant, by his next friend, William Joseph Duggan against the New Jersey and Wilmington Ferry Company to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant company. We decline to instruct you to find for the defendant as requested. We submit the case to you for your determination whether, under all the evidence produced before you, the injuries complained of were, or were not, the result of the negligence of the defendant company.

The declaration contains five counts. The first three counts are substantially the same. The first count in part is as follows: The plaintiff avers that heretofore, to-wit, on the 15th day of August, A. D. 1907, at New Castle County aforesaid, the said defendant so negligently and carelessly ran and operated its said steamboat Ulrica, upon which the said plaintiff was a passenger for hire, that, in consequence thereof, the said boat collided with or struck a barge, lying in the said Christiana River, thereby causing the said plaintiff, who was then and there in the exercise of due care and caution on his part, to be violently thrown and hurled from the lap or arms of his mother, Ella C. Duggan, who was then and there holding the said plaintiff, to and upon the floor or deck of the said boat, together with his said mother, Ella C. Duggan; that by means of the premises, the said plaintiff was struck and injured in his right arm and fore-arm, whereby the said plaintiff suffered complete paralysis of the muscles of the said arm and fore-arm, so that the plaintiff is wholly unable to use the said arm or fore-arm, and other parts of the body of the said plaintiff were greatly bruised, lacerated and injured, to-wit, at New Castle County aforesaid; and also by means of the premises, the said plaintiff became and was 'sick, sore, lame, disordered and injured, and so remained and continued for a long space of time, to-wit, hitherto, during all of which time the said plaintiff suffered and underwent great pain.”

The fourth and fifth counts are substantially the same. The fourth count avers in part that “while the said steamboat was approaching the said landing or wharf, and when about to stop thereat, the said defendant so negligently and carelessly and recklessly ran and operated the said boat, that it then and there struck another boat, then and there lying near the said landing or wharf; that the said steamboat owned and operated by the said defendant as aforesaid, and upon which the said plaintiff was a passenger as aforesaid, was suddenly and violently stopped, whereby the said plaintiff, who was then and there, at the special instance and request of the said defendant, riding as a passenger on the said defendant’s boat, and in the exercise of due care and caution on his part was violently thrown and hurled, with his mother, Ella C. Duggan, who was then and there holding the plaintiff upon her lap, upon the floor or deck of the said boat, whereby, the fingers of the said Ella C. Duggan, who had her left hand caught in the plaintiff’s armpit on his right side at the time when the said plaintiff and the said Ella C. Duggan were thrown as aforesaid, were caused to compress with great force and violence certain of the nerves of the plaintiff’s right arm, and whereby, the nerves of the plaintiff’s arm were greatly and permanently injured, bruised, disordered and shattered, and the right arm of the said plaintiff became paralyzed” * * * “and was then and there permanently injured.”

The defendant company contends that it exercised reasonable and proper care and caution in the movement and-management of its steamboat in approaching its wharf, in this City and at the time of the accident. You have heard the testimony. We shall not attempt any review of it. You have it all before you, and you are the exclusive judges of its weight and value.

Whether a particular accident was the result of negligence, and whose negligence, if any, is a question of fact for the determination of the jury from all the evidence. Negligence is never presumed. It must be proved. It is the want of ordinary care, —such care as a reasonably prudent and careful person would exercise under similar circumstances.

Reasonable care when applied to the control and management of a steamboat in motion, imports all the care which the particular circumstances of the place and occasion reasonably require, and this will be increased or diminished according as the liability of danger and accident, and injury to others, is increased or diminished in the movement and management of such a boat.

The burden of proving negligence rests upon the plaintiff. And it must be proved to the satisfaction of the jury by a preponderance of the evidence—that is, by the greater weight and value of the evidence.

It is, therefore, incumbent upon the plaintiff to satisfy you from the evidence adduced that the accident complained of was caused by the negligent conduct and management, on the part of the defendant company, as alleged, to entitle him to a recovery in this action.

This Court has held that “Common carriers of passengers are responsible for any negligence resulting in injury to them, and are required in the preparation, conduct and management of their means of conveyance, to exercise every degree of care, diligence and skill, which a reasonable man would use under such circumstances. This obligation is imposed on them as a public duty, and by their contract, to carry safely, as far as human care and foresight will reasonably admit.” A steamboat company is bound to provide skillful and careful servants, competent in every respect for the posts they are appointed to fill in their service; and is responsible not only for their possession of such care and skill, but also for the continued application of these qualities at all times.

A steamboat company is not, however, an insurer of the safety of its passengers, but it is required to exercise the highest degree of care and diligence that is reasonably practicable in-securing their safety, by keeping its boat under the control and management of skilled and competent servants. There is, at the same time, a duty resting upon the passenger to act with prudence, and to use the means provided for his safe transportation; with reasonable circumspection and care, and if his negligent act contributes to bring about the injury of which he complains, he cannot recover. (4 Penn. 276).

That the defendant’s steamboat, on which, it is alleged, the infant plaintiff was a passenger with his mother, ran against and struck a barge tied near the defendant’s wharf when approaching the wharf, is not controverted. And it is for you to determine from the evidence whether the injuries complained of were the result of the collision and, if so, whether the collision was due to negligence, on the part of the defendant company, in the movement and management of its steamboat at the time of the accident without the fault or negligence of the infant’s mother.

Where there is conflict in the testimony, you should reconcile it if you can. If you cannot, you should give credit to and be governed by the testimony, which, in your judgment, is most worthy of belief, taking into consideration the intelligence, apparent truthfulness, bias and impartiality of the witnesses. The weight and value of the evidence so determined by you is to be your guide in reaching your verdict. And governed by this instruction, you should decide this case in whose favor there is a preponderance of the evidence. (4 Penn. 278).

If you find that the accident was not the result of the defendant’s negligence, your verdict should be for the defendant. If-you find that the accident was the result of the negligence of the defendant, your verdict should be for the plaintiff and for such a sum as will, in your judgment, reasonably compensate him for all his injuries, including his pain and suffering in the past and such as may c@me to him in the future from the accident, and also for such permanent injuries as may impair his ability to earn a living and perform the ordinary functions and duties of life. But in this matter you are to be governed not by mere speculation or conjecture, but by the evidence before you.

Verdict for plaintiff for $3,350.