24 Del. 562 | Del. Super. Ct. | 1910
delivering the opinion of the Court:
We have very carefully considered the motion made for a nonsuit in this case and the arguments of counsel for and against the same.
There is no doubt about the law; in this State that must control the Court in the decision of questions like the one before us.
In order that the plaintiff may recover in a case of such a character as this, there are two important things to be considered and determined.
(1) Was the death, for which damages are sought to be recovered, caused by the negligence of the defendant.
(2) Did the negligence of the deceased contribute proximately to the accident in which she was killed.
The negligence of the defendant must be shown by some testimony adduced by the plaintiff, otherwise the case will not
These principles are well settled in this State and binding upon the Court.
We will assume that the defendant was negligent and that the evidence of the plaintiff establishes that fact.
The important question then in determining the motion before us, is, does the evidence of the plaintiff show that there was contributory negligence on the part of the deceased?
Such evidence clearly establishes these facts:—
(1) That the railroad tracks, at the place of the accident and for about a quarter of a mile southward, were straight.
(2) That there was at the time of the accident, no obstruction, or anything in the way, of such a character as to prevent the deceased seeing the approaching train in time to avoid the danger, and there was nothing that occurred at or about the time of the accident in any of the surrounding circumstances to prevent her from seeing or hearing the approaching train if she had looked and listened as it was her duty to do before attempting to cross the tracks.
(3) That the deceased at the time of the accident was in good health and in the possession of her faculties of sight and hearing; she was familiar with the crossing where the accident happened and the conditions surrounding the same—having lived very near the crossing for more than twenty years, she was bound to know that the crossing was a place of danger.
(4) That the deceased was walking on foot as she approached the crossing, and had therefore full control of her movements; yet she walked fast and continued to do so without stopping until she was struck by the engine.
(5) That the whistle of the train was blown at Hale’s Crossing, which several of the plaintiff’s witnesses, who were at*570 the time, very near the place of the accident, distinctly heard, and it was in fact, the whistle, and the rumble or noise made by the movement of the train which first attracted their attention.
Such being the facts shown by the plaintiff, must we not conclude that the deceased was guilty of such contributory negligence as will prevent the plaintiff recovering in the action.
It does seem to us from the facts stated, that the only reasonable and rational conclusion must be that if the deceased had exercised due care, the accident would not have happened. Even though the defendant was negligent in running the train at an unusually high and dangerous rate of speed and in failing to blow the whistle again, ring the bell or give other proper and timely warning, the deceased was not thereby relieved from exercising due care to avoid the accident. It was her duty to use reasonable diligence, and she was bound to the reasonable use of her sense of sight and hearing, in order to see and know that she could safely cross over the tracks before she stepped upon them or got so close as to be in danger of being struck by any part of the passing train.
If she did look and listen before she stepped upon the crossing she must have seen or heard the approaching train. If she did see or hear it she must be supposed to have taken the risk of being able to get over the crossing in time. If she did not look and listen, then unfortunately, she failed to exercise the care and caution of an ordinarily prudent person and such as under the law she was required to exercise.
The track for a considerable distance was straight; there was nothing of such a character as to prevent or obstruct a reasonably fair view of the approaching train in time to avoid the accident; the train was making so much noise by reason of its great speed, and the whistle blown at or near Hale’s crossing as to attract in an unusual way the attention of a number of persons in Wyoming even before it reached the town.
We do not forget the principle of law clearly recognized in this State, that the deceased is presumed to have been in the exercise of due care at the time of the accident. But it is equally well settled that such presumption may be rebutted by testimony
We are not unmindful of another well recognized rule which is that a nonsuit should not be granted and the case taken from the jury unless the evidence produced on the part of the plaintiff makes it clearly the duty of the Court to do so.
We regret always the necessity of taking a case from the jury, but our action must be governed in every case by what we believe to be the law. We are clearly of the opinion that under the well settled law of this State, assuming that the defendant was negligent in the operation of its train at and just before the time of the accident, still the deceased was also guilty of negligence and of such negligence as was operative at the time of the accident and contributed thereto.
Being clearly of such opinion our duty is plain and unavoidable, viz.: to grant the motion, and direct that a nonsuit be entered.
Mr. Daly:—If the Court please, I decline to take the nonsuit.
charging the jury:
Gentlemen of the jury —We direct you to return a verdict for the defendant, for the reasons we have just stated in granting the nonsuit.
Verdict, for defendant.