Dwarkin v. Johnson

30 Del. 581 | Del. Super. Ct. | 1920

Boyce, J.,

first instructing the jury upon the general principles of law covered by the prayers, except defendant’s third prayer, said:

The court is requested by the defendant to charge you that it is a well established rule that when one is required to act suddenly and in the face of imminent danger, he is not required to exercise the same degree of care as if he had time for deliberation and the full exercise of his judgment and reasoning faculties. This rule is frequently invoked in favor of the plaintiff in an action for personal injuries, when contributory negligence is relied upon as a defense; as, for instance, when an emergency suddenly arises such as is calculated to produce excitement, bewilderment, or fright.

It is conceded in this case that the driver of the motor truck of the defendant (not, however, that he was driving for the defendant) was driving on West street in a northerly direction toward Second street, intending to turn into and go down Second street in an easterly direction. When about to leave West street and go into Second street, another truck, going west on Second; street, approaching near the crossing at West and Second streets, the driver of defendant’s truck passed ahead of the other truck, driving it, it is claimed, at an excessive rate of speed, and turned into Second street on the north side thereof, and in his effort to make the center of Second street, it is claimed by reason of the speed of the truck and defective brakes, ran across the street, to and upon the pavement on the south side thereof, striking the plaintiff, breaking his leg and otherwise injuring him.

The court cannot instruct the jury as requested by the prayer mentioned, but instead will say that if the driver of the defendant’s truck was the servant of the defendant, and if he was negligently driving as he approached the crossing at West and Second streets and negligently drove the truck past the other truck into Second street so that by reason of his speed and defective brakes, or either, or both, he drove upon the pavement on the south side of Second street and thereby injured the plaintiff, and that such negligence was operative at the time of the alleged injury, the defendant is liable for resulting injuries to the plaintiff, even though the alleged injurious result was in any manner contributed to by the act of the driver of the other truck; for if the driver of the truck of the defendant was negligently driving the truck at the time he approached to and turned into Second street, and such negligence was a procuring cause of the alleged injuries, his negligence cannot be excused by setting up the approach of the other truck at the crossing at West and Second streets, or indeed the concurring negligence, if any, of the driver of the latter truck.

Verdict for plaintiff.