31 Del. 247 | Del. | 1921
Curtis, Chancellor, delivering the opinion of the Court:
The case is brought to this court on a writ of error to the Superior Court of New Castle County by the defendant below. There were two suits with different plaintiffs against the same defendant, and the cases were tried together. The defendant was charged in each case with negligently permitting freight cars to remain at night on its tracks directly across the highway without lights thereon, or other signal or warning being given of its presence, by reason whereof the automobile in which the plaintiffs were riding at night, and which was being driven with due care, ran into one of the freight cars, whereby the plaintiffs were injured and the automobile damaged.
There was conflicting evidence as to whether the night, though dark, was clear or cloudy, and whether the moon was shining, but it was not shown to be foggy, misty or rainy. There was also a conflict as to whether an arc light hung about twenty feet above the street on a pole located on the opposite side of the freight train was lighted at the time of the accident. There was testimony that if the arc light was lit the train would have cast a shadow about thirty-two feet in width. Also there was a conflict of testimony as to whether the trainmen exhibited warning lights swung across the track as the automobile approached the train and visible to those in it. The speed of the automobile was disputed, the plaintiffs saying it was eighteen or twenty miles per hour, and other witnesses fixing a much higher rate. There was a conflict of testimony as to whether either of the plaintiffs was intoxicated at the time of the accident.
A traveler on a highway by day or night may expect that it will not be obstructed unlawfully or in such manner as to cause him injury while he himself is in the exercise of due and reasonable care, and what is such care depends on the circumstances of each case. All who lawfully obstruct a highway may rightly expect that travelers on it will use due and reasonable care to avoid any danger because of an obstruction. In every case of a collision between a vehicle on a highway and an obstruction therein the conduct of the traveler affects the corresponding duty of the one who causes the obstruction. This problem is more complex where the vehicle is an automobile than when it is horse drawn, because of the size, weight, mechanism and motive power of the machine, some of them capable of being driven at high speed, and all requiring and dependent upon the control of the operator. Animals have an instinct to sense danger, while in a highway, and their instinct of self preservation is a protection and guard to those in the vehicle. Indeed, it is common knowledge that a horse will discover the presence of danger while on a highway sooner than a man will, and will protect itself from injury by stopping short of, or evading or avoiding the point of danger; while a machine moves on until the motive power be exhausted or shut off,
“A team of horses, if permitted to do so, will ordinarily follow the traveled track, even where it is so dark that their driver may be wholly unable to distinguish it. Under such circumstances an automobile could hardly be run a rod without running into a ditch, except by sheer good luck. A horse will ordinarily stop when a barrier is reached. A machine tries conclusions with it, and brushes it aside if not strong enough to resist the momentum hurled against it. Driving an automobile over a country road on a dark, rainy night without light would indicate a well-defined intent on the part of the driver to commit suicide, rather than the exercise of ordinary care.”
• One of the assignments of error is that the court below refused to grant a prayer for an instruction to the jury to render a verdict for the defendant. In deciding this question the evidence must be considered in light most favorable to the plaintiffs. So viewing the evidence, was it shown that the defendant was guilty of negligence?
The train was lawfully across the highway. The absence of lights on the train, or shown by the trainmen, or other signals to travelers of the presence of the train there is the negligence charged. It is not in itself negligence for a railroad company to allow a train of cars to remain a reasonable or lawful length of time across a highway. This is so stated in the brief of the plaintiff. The absence of such lights or warning signals does not of itself prove that the company was negligent as to the plaintiffs. Gage v. Boston & M. R. R. Co., 77 N. H. 289, 295, 90 Atl. 855, L. R. A. 1915A, 363. There was no statute or ordinance which required such lights or warning, or regulating the speed of or lights on the automobile. The trainmen and the driver of the automobile each had a right to presume that the other would act as a reasonable -person under all the conditions and surroundings of the crossing until the contrary should appear. This was said in a case in the Superior Court where the plaintiff was struck by
Here, then, the railroad qofoipany had a right to assume that the plaintiffs would act in a reasonable way to avoid running into the train of box cars while it was lawfully standing across the highway. If the defendant’s trainmen had a right to assume that a reasonably careful man driving an automobile on a highway at night would use such lights and adopt such a rate of speed as that he could bring his machine to a standstill within the distance that he could plainly see by the lights on his machine a railroad box car twelve feet high standing across the highway motionless on a railroad track and completely obstructing his passage along a straight unobstructed highway, then the defendant did not then omit to perform any duty by not showing lights, or giving other warning of the presence of the train. This point has not been determined in this State with respect to automobiles, but has been elsewhere.
Plainly if under a state of facts, such as stated immediately above, the driver of an automobile does not stop it before striking such a large object as a train of cars on a railroad track, when it be shown that considering his rate of speed, the illumination made by his lights and the mechanism of the car, he could, after seeing the obstruction have stopped the automobile before striking the obstruction, then he was clearly guilty of contributory negligence such as would bar his right to recover for damages. The case of Gage v. Boston & M. R. R. Co., 77 N. H. 289, 295, 90 Atl. 855, L. R. A. 1915A, 363, is an illustration. There an automobile driven at such speed that it could have been stopped within twenty-six feet crashed into the side of a train of cars at night, though they were seen by the driver by the lights of the motor car when it was thirty-five feet away from the train. The court decided .that the railroad company was not negligent in not giving warning of the presence of its train to the driver of an automobile, who after seeing the train in time to have stopped his machine before reaching the obstruction failed to do so.
In Allison v. Chicago, etc., Co., 83 Wash. (1915) 591, 145 Pac.
In a later case in Massachusetts, Trask v. Boston, etc., Co., 219 Mass. 410, 105 N. E. 1022, the same principle was, on authority of Gage v. Boston, etc., Co. cited above, applied to facts similar to the case at bar, but where it was not shown that the automobile could have been stopped after the driver thereof saw the train standing across the highway and before striking it. In the Trask Case the speed of the machine was from twenty to twenty-five miles per hour; it could have been stopped within forty or fifty feet; the headlights shone one hundred feet ahead; and the train was not seen by the driver until he was within forty feet of the train. It was held by the court that the railroad company was not negligent in not giving warning by lights, or otherwise, of the presence of the train across the highway, and said:
“In order to charge the defendant with negligence it must be found that its employes, in the exercise of reasonable care, would have known that on account of the darkness the cars upon the crossing were such an obstruction that people traveling along the highway, in an automobile, at a reasonable rate of speed, properly equipped with lights and carefully operated, would be liable to come into collision with them. We are of opinion that upon the evidence the conditions shown were not such as to warrant a finding that the defendant was negligent in failing to provide lights or a flagman, or to give other warning.
“The defendant or its servants in the exercise of reasonable care, were justified in believing that travelers in automobiles properly lighted and driven at reasonable speed would observe the cars upon the crossing in time to avoid coming in collision with them.
In Gage v. Boston, etc., Co., supra, the following language was used, which is applicable to the facts here and to the case of Trask v. Boston, etc., Co., supra, vis.:
“The defendant’s cars were rightfully occupying the crossing, and the trainmen were exercising due care so far as the management of the train in approaching and passing over the crossing is concerned. The plaintiffs were not injured by being run into by the defendant’s locomotive, but by running
As argued by counsel for the plaintiff in error, other cases elsewhere have gone further than this. In 1909 the Wisconsin Supreme Court in Lauson v. Town of Fond Du Lac, 141 Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30, adopted a rule further defining the duties of drivers of automobiles There it was held that the driver of an automobile traveling on a dark and rainy night over a straight stretch of strange country-road was not exercising ordinary care when he drove his machine at such a rate of speed that he was unable to stop it within a distance that is within the clear range of his vision, or stated in another way, he was not using ordinary care if he could see objects but ten feet ahead and his speed was such that he could not stop within that distance. The words of the court are these:
“It seems to us, and we decide that the driver of an automobile, circumstanced as the driver of the car in which the plaintiff was riding, and operaing it under such conditions as he operated his machine on the night of the accident, is not exercising ordinary care if he is driving the car at such a rate of speed that he cannot bring it to a standstill within the distance that he can plainly see objects or obstructions ahead of him. If his light be such that he can see objects for only a distance of ten feet, then he should so regulate his speed as to be able to stop his machine within that distance and if he fails to do so, and an accident results from such failure, no recovery can be had. This, it seems to us, is the minimum degree of care that should be required. Circumstances might arise where it would be reckless to drive at such a rate of speed, or even at a rate approximating it. We do not ground this rule on the
This case was approved and followed in West Construction Co. v. White, 130 Tenn. 520, 172 S. W. 301 (1914); Knoxville, etc., Co. v. Vangilder, 132 Tenn. (1915) 487, 178 S. W. 1117, L. R. A. 1916A, 1111; Pietsch v. McCarthy, 159 Wis. 251, 150 N. W. 483; Raymond v. Sank County, 187 Wis. 125; Fisher v. O’Brien (1917) 99 Kan. 621, 162 Pac. 317, L. R. A. 1917F, 610; Solomon v. Duncan, 194 Mo. App. 517, in Missouri Court of Appeals (1916) 185 S. W. 1141. But in Iowa the Court in Kendall v. City of Des Moines, 183 Iowa, 866, 167 N. W. 684, refused to follow the decisions in Wisconsin and Tennessee. So also the decision in Corcoran v. New York, 188 N. Y. 131, 80 N. Y. 660, may not be in accord with the Wisconsin and Tennessee casds-, but the facts in this last mentioned case are peculiar and the case does not throw much light on the question before this court.
But in order to rightly decide the pending case it is not necessary to adopt as broad a rule as that laid down in the case of Lauson v. Fond Du Lac, supra, for there is in this case no evidence showing negligence on the part of the defendant. The trainmen of the defendant had a right to assume that a reasonably careful person driving an automobile on that highway at that time would adopt such lights and rate of speed as that he could and would bring his automobile to a standstill within the distance that he could plainly see the train of the defendant, and so avoid running his machine into it, and therefore these employees of the defendant company were not negligent in failing to give warning by lights, or otherwise, of the presence of the train as an obstruction to the highway.
It, therefore, follows that if the defendant was not negligent it cannot be held liable for the injuries to either the driver or his guest in his private machine, whether the driver was careful or negligent. Gage v. Boston, etc., Co., supra.
Inasmuch as the court below should have instructed the jury
An order will be made reversing the judgment in the court below, and directing that a judgment be entered for the defendant below, plaintiff in error, with costs in both courts.