21 Del. 226 | Del. | 1905
delivering the opinion of the Court:
This action was brought in the Superior Court for Sussex County by Mary E. Reed, widow of John W. Reed, deceased, the defendant in error, against the Queen Anne’s Railroad Company, the plaintiff in error, for the recovery of damages for the death of the said John W. Reed, alleged to have been occasioned by the negligence of the defendant company.
The real contention of the plaintiff raised under the pleadings and the evidence, being that the whistle was not sounded and the bell was not rung, if at all, at such a time and place as to give due and proper notice of the approach of the locomotive and cars attached, and that the said locomotive and cars were moving at a dangerous rate of speed immediately before and at the time they
When the plaintiff had rested her ease, the defendant moved for a nonsuit, on the ground that the testimony produced by her showed either (1) that the injury complained of was the result of an inevitable accident, or (2) that the deceased was guilty of contributory negligence. The Court, in disposing of the motion, said : “Under the testimony, this is a very close case; but as it stands we must decline to grant a nonsuit, and will let you go to the jury.” It may be said here that the refusal to grant the nonsuit is not before this Court, because under our decisions, the action of the Court upon a motion for a nonsuit is not reviewable. At the close of the case, the defendant presented several prayers for instructions, the last of which was “That the Court instruct the jury to render a verdict for the defendant.” The case was, however, submitted to the jury under the charge of the Court. There are several assignments of error, but at the hearing in this Court, counsel for the defendant confined themselves to the last—“For that the Court erred in refusing to charge the jury to render a verdict for the defendant as requested”—it being contended that the evidence introduced by the plaintiff, and not affected by that offered by the defendant, otherwise than to strengthen it, clearly showed that the defendant was not negligent at the time of the accident, but on the contrary that it was the negligence of the deceased which occasioned the collision and his death at the crossing.
A very short time before the accident, which occurred, between the hours of four and five o’clock in the afternoon, on the-day of March, A. D. 1901, the deceased, being in a fall-top carriage, drawn by a horse, was seen driving along Federal Street, towards his farm, the place of his residence, some distance, in a
The mere fact of an accident by which an injury is sustained, if not within the control of the defendant, does not, in itself, raise a presumption of negligence.
Bahr vs. Lombard, 53 N. J. L., 233.
And it is necessary that the plaintiff should have both alleged and proved negligence, on the part of the defendant, to entitle her to a recovery; for the burden of proving negligence rests upon the plaintiff.
Whether there was any negligence, at the time of the accident, and whose, must be determined from the evidence under all the facts and circumstances of the case.
It is for the Court to say whether any facts have been established by sufficient evidence from which negligence can be reasonably and legitimately inferred; and it is for the jury to say whether from those facts, when submitted to them, negligence ought to be inferred.
Metropolitan Ry. Co. vs. Jackson, 3 App. Case., 193; Creswell vs. W. & N. R. R. Co., 2 Pennewill, 210,
If the plaintiff fails to produce any evidence of negligence, on the part of the defendant, or if, as it has been said, no fair inference of negligence can be drawn from the evidence favorable to the plaintiff, assuming that such evidence is true, it becomes the duty of the Court to nonsuit the plaintiff, or to direct a verdict for the defendant.
Comm. vs. Clark, 94 U. S., 284; Randall vs. Balto. & Ohio R. R., 109 U. S., 482.; Wheatley vs. Phila., Wil. & Balto. R. R., 1 Marv., 315; and Creswell vs. W. N. R. R. Co., supra; Tully’s Adm. vs. P. W. & B. R. R. Co. 2 Pennewill 532.
Vinton vs. Schwab, 32 Vt., 612; The Penn. R. R. Co. vs. Matthews 36 N. J. Law, 531; D., L. & W. R. R. Co. vs. Shelton, 55 N. J. L., 343; Schofield vs. Chic., M. & St. Paul R. R. Co.. 114 U. S., 615.
Although the plaintiff may show that the injury complained of was in consequence of the negligence of the defendant, yet it does not conclusively determine that the injury was legally attributable to such negligence, because it may equally appear that the injury was due to the fault or negligence of the person injured. This brings us to the consideration of contributory negligence, the burden of establishing which, whenever it is relied upon in defense of the action, rests upon the defendant; proof of such negligence may, however, arise out of the testimony of the plaintiff in the first instance.
It is quite impossible to lay down any definite rule by which to determine whether the question of contributory negligence is to be found, under the evidence, as a conclusion of law, or should be submitted to the jury as a question of fact. The determination of the question must necessarily be controlled by the facts and circumstances of the particular case. And the Court will not decide it as one of law, although the weight of the evidence may seem to be on one side or the other, if the testimony be conflicting, or if the conclusion to be drawn therefrom is doubtful and uncertain. In such a case the Court will not, and should not, attempt to weigh and determine the effect of the evidence involved in the issue of fact. For under such circumstances the question clearly falls within the province of the jury.
Penna. R. R. Co. vs. Middtetovm, 57 N. J., Law, 158 ; Penna. R. R. Co. vs. Matthews, 36 N. J. L., 531; and Dela. etc. R. R. Co. vs. Shelton, 55 N. J. L., 342.
In short, ordinarily in actions for personal injuries, the cases are exceptional when the Court is warranted in ordering a nonsuit, or directing a verdict for the defendant; and such cases are confined to those where it is clearly manifest as a conclusion of fact, or by necessary exclusive inference, that those acts which the law regards as negligent have not been shown, or to those in which contributory negligence has been shown.
Palys vs. Erie Ry. Co., 30 N. J. Eq., 604; and Penna. R. R. Co. vs. Righter, 42 N. J. L., 180.
The law regards a railroad crossing as a place of danger. The very presence of such a crossing is notice to the person, approaching or attempting to cross it, of the danger of colliding with a passing engine or train. And because of the danger, there is imposed upon such person the duty of reasonable care and caution, and the reasonable and ordinary use and exercise, of his senses of sight and hearing for his own and others safety and protection ; and he is required, at least, to look and listen for an approaching engine or train before venturing to cross the track. And, if, as it has been said, he fails to exercise such ordinary care, whatever danger he could thereby have discovered and avoided, he incurs the peril thereof, if he proceeds, and for an injury arising under such fault, he is left without remedy.
Pa. R. R. Co. vs. Middleton, 57 N. J. L., 154.
In Cooley on Torts, at page 680, it is said: “One about to cross a railway track by the public highway, where the liability to collision is great, will be held precluded, by his contributory negligence, from a recovery for an injury, if he drives upon the track without looking for an approaching train, even though the railway company has neglected to sound the alarm which the statute requires of it at such places.”
Although the view of the road is obstructed that fact does not relieve the traveler from the obligation to look and listen for an approaching train. And the observance of this legal duty applies as well to a special as a regular train. (Schofield vs. R. R. Co., 114. U. S., 615.) The very fact of the existence of such obstruction and particularly when it is known to the traveler, imposes additional care and caution upon him on approaching the track.—Beach on Con. Neg., 65.
The right of a railway company at a highway crossing is superior to that of a traveler upon the highway. Rapid transit for the convenience of the traveling public and for the quick transportation of freight and produce necessarily make this so. Yet this superior right does not relieve the company from reasonable and ordinary caution to prevent accidents at such crossings. And this degree of care may be affected by obstructions which prevent the track from being seen as a train approaches. Both the traveler and the company are charged with the same degree of care—the one to avoid being injured, and the other to avoid inflicting injury.
8 Am. & Eng. Ency of Law, 387.
There is not only the danger incident to the passing and re-passing of regular trains at highway crossings, but, in the management and business of railroads, trains may be delayed and special trains are liable to be sent out at any moment, and, therefore, the danger to be avoided at such crossings calls for prudent watchfulness and caution on the part of both the company and the traveler ; for the want of care by either would be equally liable to result in an injury. And the care of each must be commensurate with the risk and danger involved. And when it is known to the traveler and servants of the company that a crossing is very dangerous by reason of -its surroundings, it is incumbent upon both parties to exercise additional care and caution.
Penna. R. R. Co. vs. Middleton, 57 N. J. L., 154-•
After a careful examination of the evidence, it conclusively appears that the defendant company gave notice by bell and whistle of its approach to the crossing at which the accident occurred; while, it is true, several of the plaintiff’s witnesses were near enough to have heard the whistle, if blown for the crossing, at or near, the said branch, east of the station, yet they did not hear the whistle, or if they did, to use their language, they “did not pay any attention to it,” or “did not take any account of it.”
Those witnesses, however, failed to testify affirmatively and unqualifiedly that no such whistle was sounded. On the other hand a number of the plaintiff’s witnesses testified without qualification that they heard the whistle at that point. The testimony of the latter witnesses is, of course, of much more weight than that of those who merely say they did not hear the whistle, which might be reasonably attributable to want of attention at the time;—such negative testimony is usually of very little value.
Upon this point, it was said in the case of Menard vs. Boston & Maine Railroad, 150 Mass., 386, “ordinarily all that a witness can say, in such a case, when called to prove that a bell was rung, is that he did not hear it. Such a statement, with no accompanying facts, is merely negative, and of no value as evidence. But attending circumstances may be shown which make the statement strong affirmative evidence. It may appear that all the attention of which the witness was capable was concentrated on the effort to ascertain whether the bell was rung, and his failure to hear it could only have been because it made no sound. A witness may be in any
The speed of the train was variously estimated from 25 to 45 miles an hour. The estimate as to the rate of speed of a passing train by persons standing near the track at the time, having no experience or training in that respect, is usually very inaccurate and untrustworthy. It does not appear, however, from the evidence, that the train was moving at a greater rate of speed than is usual in these days of rapid transit, where there is no restriction by statute or ordinance, and where no special dangers are to be apprehended.
It may be debatable whether the evidence, considered in its entirety, discloses any negligence on the part of the defendant company ; and yet it is not altogether manifest that there was such an entire absence of negligence as to have made it the duty of the Court to take the case from the consideration of the jury on that ground. Whether there was or was not any negligence on the part of the defendant company, it is manifest from the evidence that there was nothing in the conduct of the defendant company which in any way relieved the deceased from the exercise of reasonable and ordinary care in approaching the crossing, or which in any manner affected him in the control of his actions at or immediately before the fatal accident. It appeared from the uncontradicted testimony that the Federal Street crossing was below the surrounding country; that, in approaching the crossing, there was an elevation on the east side of Federal Street from three to six feet, and likewise on the same side of the street there was a growth of trees, bushes, and briars, hereinbefore more minutely set forth, which materially obstructed the view of the railroad in the direction from which the train was approaching. It further appears that the decedent resided in the neighborhood, and frequently traveled along the said road or street, and over the crossing, and he was therefore acquainted with the surroundings. Under these circumstances it was obligatory upon him to use a higher degree of care and caution than would have been necessary in traveling upon a highway approaching a railroad where both were on a level with the
This testimony as to the conduct of the deceased is wholly without, contradiction. The reasonable explanation of the increase of speed when the deceased was within 100 feet of the railroad crossing is that he then became conscious of the fact that a train was approaching, and that he attempted thereby to clear the crossing before the train reached that point. If this was so, it was a clear case of negligence. He might have stopped or turned aside; but if, instead of doing so, he attempted a race with a locomotive, he did so at his own risk, and the defendant company is not responsible for the consequences of such conduct. Whether the speed at which he is proved to have approached the crossing did or did not indicate an intention to cross ahead of the train, it certainly shows a lack of that care and caution which were obligatory upon him under the circumstances at that time. Indeed, it seems quite inevitable from the evidence that there was a total absence of reasonable care and caution on the part of the deceased in approaching the crossing, in that he made no effort whatever to ascertain whether a train was approaching, or to avoid the danger imminent at the time he attempted to make the crossing.
The judgment of the Court below is reversed.