Linthicum v. Truitt, 25 Del. 338

Linthicum v. Truitt

25 Del. 338 | Del. Super. Ct. | 1911

Boyce, J.

charging the jury:

Gentlemen of the jury:— This is an action brought by John C. Linthicum of H. by Herbert R. Linthicum, his parent and next friend, against Willard S. Truitt, to recover damages for personal injuries to the said John C. Linthicum of H., alleged to have been occasioned by the negligence of the defendant.

The declaration filed in this case contains five counts. It *343is averred in each of them, that the defendant was, at the time of the happening of the accident complained of, on the first day of August, A. D. 1906, in the possession of and engaged in the operation of a certain machine commonly known as a merry-go-round, located in the town of Rehoboth, in this county, and was engaged in the business of carrying passengers thereon for hire and reward. The negligence relied upon by the plaintiff is averred, briefly and substantially stated, as follows:

First, the defendant so negligently operated his said machine that thereby the machine caught the left foot and leg of the infant, five years and six months of age, between the revolving part of the machine and the stationary platform surrounding the same, thereby the left foot and leg of the infant were and became jammed, squeezed, mashed and pressed, and he was thereby wounded, bruised, lamed, crushed and permanently injured.

Second, the defendant so negligently operated the machine that the same was not brought to a stop and standstill to permit the infant to be secured upon the same, but permitted the machine to be in motion when he was in the act of entering in and upon the machine, thereby he was thrown from the machine moving, and his left foot was caused to be precipitated into an open space existing between the circumference of the floor of the revolving part of the machine and the edge of the stationary platform surrounding the same, thereby the left foot and leg of the infant were and became jammed, etc.

Third, the defendant so negligently geared and constructed the machine as that the revolving platform described an ellipse and not a true circle when the same was in motion so that at alternate intervals during each revolution a space through which the left foot of the infant could be precipitated was opened between the rotary and stationary platform as and when he was entering into and upon the machine from the stationary platform contiguous thereto, the left foot of him was precipitated into the open space and was caught and held between the revolving and the stationary platforms while the machine was in motion, and thereby his foot was wounded, etc.

Fourth, the defendant by and through his servant in charge *344of the machine negligently instructed and directed the infant, being then and there a passenger, to enter upon and take a place on the machine while in motion, thereby, he the infant precipitated his left foot and leg in an open space between the revolving part of the machine and’ the stationary platform surrounding the same when the left foot and leg of him, the infant, became jammed, etc.

Fifth, the defendant negligently failed to provide a reasonably safe machine in that certain pieces were broken out of the stationary platform thereof, thereby the infant precipitated his left foot through a hole in the floor of the stationary platform, and his left foot and leg were and became jammed, etc.

The defendant denies that he or his servant, in charge of the machine at the time of the accident, was guilty of any negligence that caused the injury complained of; and, moreover, insists that if there was any negligence, it was the negligence of the infant, and not the negligence of the defendant.

[1] You have heard the contentions of the parties and the testimony of the witnesses introduced in support of their respective contentions. We shall not attempt to recapitulate the evidence. We are not permitted to comment upon it, if we would. You are the exclusive judges of the weight and value of the testimony and of the credibility of the witnesses. When you retire to your room for deliberation you will carefully consider the evidence adduced before you in connection with the law announced to you by the court, and, governed by the law and the evidence, and by that alone, come to your conclusion upon the issue of fact involved in this case, and return with your verdict accordingly.

It is admitted that the defendant owned and operated the merry-go-round upon which and at the time the accident occurred, and that he was duly licensed to operate the same.

[2] In an action of this kind it is necessary that the plaintiff should both allege and prove negligence on the part of the defendant to entitle him to a recovery. Negligence is never presumed. It must be proved, and the burden of proving it rests upon the plaintiff.

[3] Negligence has been defined to be a failure to observe, *345for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.

[4, 5] There is no presumption of negligence either on the part of the plaintiff or on the part of the defendant, from the mere fact that injury resulted to the plaintiff by reason of the alleged accident. Whether there was any negligence, at the time of the accident, and whose, you must determine from all the facts and circumstances of this case as disclosed to you by the testimony of the witnesses.

[6] The negligence of the servant Mooney, in charge of the machine, if any, that may have contributed to the accident would be the negligence of the defendant, his employer.

[7] It is the duty of a person owning and operating a merry-go-round to which the public is invited to ride for hire to provide for them a safe vehicle, machinery, appliances, guards and approaches for their protection against injury, and of such person the law exacts great care, diligence and skill in the management and operation of the same, and the use of wise precaution in protecting his patrons from injury.

In the merry-go-round in question, it is conceded that there were two platforms — one stationary and the other rotary. In considering the issues of fact, involved in this case, we instruct you that the stationary platform as well as the rotary platform was a part of the merry-go-round. And the law which we charge you applies alike to both of them.

[8] Where, as in this case, the testimony is conflicting, you should reconcile it if you can, but if you cannot do so, you should accept as true that part of it which you deem worthy of credit, and reject that part of it which you deem unworthy of credit, having due regard to the opportunity and intelligence of the witnesses to know that to which they have testified, to their demeanor, candor, and apparent fairness, and to their interest or bias, if any.

Your verdict should be for that party in whose favor is the preponderance or greater weight of the evidence.

[9] We are constrained to remind you again, gentlemen of *346the jury, that you should decide this case from the evidence as you have heard it from the witness stand considered in connection with the charge of the court upon the law. You should not be drawn aside by the disputes or strictures of counsel from the issues of fact involved in this case.

Briefly stated the contention of the plaintiff is that the infant, on the day of, and immediately before, the accident, went to one Mooney, a servant of the defendant, in charge of the machine, and purchased tickets for himself and brother for a ride upon the machine and that the servant directed him then and there “to go and hop on” the machine, at the time in motion, and, in attempting to do as directed, he, the infant, was injured as you have had detailed before you. Mooney, the said servant of the defendant, admits that he was in charge of the machine at the time of the accident, but he denies that the infant purchased tickets from him as claimed by the plaintiff or that he directed the child “to go and hop on” the machine. But he claims that a short time before the accident the child crawled under the rope across the entrance to the machine, and seeing the child he took him outside of the rope and told him to stay outside, that he then proceeded to attend to his duties in and about the operation of the machine, when, very shortly thereafter, he heard the cry of a child and looking around saw the child with his foot caught between the rotary and permanent platforms, that the machine was stopped immediately and the child was relieved from the position in which he had been caught; that the defendant was in the exercise of due and proper care in the management of the premises and in the movement of the machine at the time of the accident and that the accident occurred through the contributory negligence of the child.

[10, 11] As to the application of the law of contributory negligence in a case like this we instruct you as follows:

While it is a rule of law that contributory negligence, on the part of the person injured, will defeat the recovery of damages for the injury, yet such rule is somewhat' affected by the relative rights and duties of the plaintiff and the defendant at the time and under the circumstances of the accident, growing out of the infancy of the plaintiff or person injured. It is a well established rule *347of law that the conduct of children in the matter of contributory negligence, should not be governed by the same rule that governs adults. For while it is the duty of the infant to exercise ordinary care to avoid the injuries of which he complains, ordinary care for him is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under like circumstances. But this is not an inflexible rule, and is to be modified according to the maturity and capacity of the infant, his ability to understand and appreciate the danger, and his familiarity with all the surroundings and conditions in each particular case, and it is for the jury to say whether under all the circumstances the infant exercised reasonable care. Weldon v. P., W. & B. R. R. Co., 2 Penn. 11, 43 Atl. 156; Tully’s Admr. v. P., W. & B. R. R. Co., 3 Penn. 455, 50 Atl. 95.

[12] While a particular act committed by an infant of a discerning age might clearly constitute contributory negligence, yet, if the same act should be committed by an infant of less discernment, it might not constitute contributory negligence. Nevertheless, if such infant places himself in a position of peril, although he may be unable to comprehend and appreciate the danger to which he is exposed, and should sustain injuries in consequence thereof, the person injuring him under such circumstances- would not be liable therefor, if, by the exercise of due and reasonable care, he could not have observed the perilous position of the infant and prevented injury to him. Goldstein v. Peoples Ry., 5 Penn. 306, 60 Atl. 975.

If you find from a preponderance of the evidence that the defendant, or his servant, failed to perform any of the duties required of him by the law as we have defined them to you, which failure proximately contributed to the injury complained of without contributory negligence on the part of the infant in the sense we have before charged you, your verdict should be for the plaintiff.

If, however, you find that the defendant and his servant have performed the duties imposed by law which we have likewise defined to you, and were, therefore, not guilty of any negligence, or being without negligence, the servant Mooney was attending *348to his lawful business on and about the machine, and did not observe the danger into which the infant may have placed himself and for that reason failed to prevent the injury, your verdict should be for the defendant.

[13] If you are satisfied by a preponderance, that is, the weight of the evidence, taking into consideration all the facts and circumstances of the case that John C. Linthicum of H., the infant, was injured as the result of the accident complained of, and was caused by the negligence of the defendant, without fault on the part of the infant (therein considering his age, intelligence and familiarity with the surroundings) then your verdict should be for the plaintiff for such a sum as in your judgment from the ■testimony will reasonably compensate the said John C. Linthicum of H., the infant, for his injuries, including therein his pain and suffering in the past, and such as may come to him in the future, and for permanent injuries received, if any, resulting from the accident.

Verdict for defendant.