14 Del. 214 | Del. Super. Ct. | 1891
By the undisputed testimony in the case, the plaintiff, who is a physician, was about ten o’clock in the morning of the 24th of June last year, driving in a vehicle along the highway at or near the defendant’s house in Gumborough hundred in this county, when, at about a hundred and seventy-five yards from the house—which had been passed by him on his way—the dog in question suddenly appeared, chasing him and barking and trying to bite the horse’s legs and jumping up at his nose. This so frightened the animal that he ran off, drew the carriage upon a low fence along the road, and threw the plaintiff out, occasioning the injuries he received, and which he has described to you. The plaintiff says that at the time the dog attacked his horse, he, the plaintiff had the reins in one hand and a package of eggs in the other. This is the testimony of the plaintiff in his examination in chief and his cross examination, with respect to the casualty, and the circum
And first it is well that you should know what the law considers negligence to be. It is want of proper care, under the circumstances existing at the time and calling for its exercise. That makes it necessary to say, that want of proper care is the absence of such caution as a man of common prudence—that is the average man—takes when it concerns him to be vigilant, sufficiently to protect himself from apparent, or suspected danger. Applying these
While it is perfectly true, as has often been announced from this bench that if it be shown, in the progress of a trial, by credible testimony, that the plaintiff in a suit for damages against a defendant for negligence alleged on such defendant’s part, cannot recover, if the plaintiff’s own negligence, where such was in proof, was a direct, promoting, and not remote course of the trouble, yet there are cases, and this, if you are satisfied with the plaintiff’s proof, seems to be one of them, where, notwithstanding want of ordinary diligence on a plaintiff’s part, if such exist, he may still recover, and the rule of contributory negligence does not apply, if the negligent misconduct of a defendant is of such a character as to be deemed willful. In case of willful misbehavior on a defendant’s part—willful neglect of an obvious duty—such recklessness of consequences, if dangerous consequences were reasonably to be apprehended from such neglect, must be taken to have been present in the mind of a defendant, and are to be treated as willful negligence on a defendant’s part, depriving him of the plea that he is not to be fixed with a verdict against him, because the plaintiff was not using all the care of himself he ought to have done. That plea will not excuse him. His willful neglect of duty is in the nature of intentional misconduct, and where such exists, it is no excuse that the other side was in fault also. This law will be found in the books that treat of contributory negligence, and no special reference need be made to them. I refer particularly to the valuable work of Beach.
The result of all this is—that if you believe the testimony offered to you by the plaintiff to be true as to the cause of the accident, and that the defendant knew of the bad habit of his dog in running out at wayfarers and their teams passing along the high
Verdict for the plaintiff.