23 Del. 21 | Del. Super. Ct. | 1906
charging the jury:
Gentlemen of the jury:—This action is brought by the plaintiff to recover damages for personal injuries alleged to have been, occasioned by the negligence of the defendant company.
It is not disputed that on the afternoon of August twenty-third last, while the plaintiff was upon the running-board of an open electric car of the Wilmington City Railway Company, passing along Third Street, under the elevated road of the defendant company, he was thrown from the car and injured by coming in contact with a post or pillar in said street which with others had been placed there for the temporary purpose of erecting the railroad bridge over said street.
Certain resolutions are in evidence passed in December, 1901, by the Street and Sewer Department of the city of Wilmington, the department of the city government having charge of the streets of the city, giving to the Philadelphia, Wilmington and Baltimore Railroad Company the right to construct an elevated railroad along and over certain streets of the city, among the latter of which was .Third Street, at the point where the plaintiff was injured.
The right thus given to the defendant company to construct an elevated road and a bridge over Third Street carried with it the right to place in said street such temporary posts or pillars as were necessary and proper for the construction of such elevated road and bridge, not needlessly interfering with the use of said street as a public ^ highway, and not dangerous to the public travel thereon by street railway or otherwise.
The plainiff charges that he was injured by the negligence and carelessness of the defendant; (1) in placing said post or pillar in the bed of said street dangerously and unnecessarily near to the tracks of the Wilmington City Railway Company, and (2) in suffering and permitting an obstruction (meaning said post or pillar) to be and remain in said street dangerously and unnecessarily near the track of the said street railway company.
Upon this branch of the case it will be necessary for you to inquire:
1. Whether the said post or pillar was erected or placed in said street by the defendant company, or (which is the same thing) by its servants or agents or any of them.
2. • Whether the said post or pillar, if erected by some person or persons other than the defendant, its servants or agents, was, after due notice or knowledge of that fact, suffered and permitted by the defendant to remian where it had been thus erected.
3. Whether the said post or pillar was erected or placed dangerously and unnecessarily near to the said street railway track.
If said post or pillar was dangerously and unnecessarily near to the track of said street railway, the defendant would be responsible for injuries occasioned thereby, without the fault of the injured person, whether the same was erected by the defendant or its servants or agents, or by some other person or persons, provided in the latter case that the defendant suffered the same to remain an unreasonable time after it had due notice or knowledge of the dangerous character of the erection.
Where a corporation is duly authorized to build a bridge over a city street, and as incident thereto, has the right to place temporary structures in said street, such right must be exercised with such care and diligence as not to endanger unnecessarily the lives and property of the public while using such street as a public highway, and the failure to exercise such care and diligence is negligence.
The plaintiff cannot recover unless it has been proved to your satisfaction by a preponderance of the evidence that the injuries to the plaintiff were caused by the negligence of the defendant company. Such negligence is not to be presumed, but must be proved to your satisfaction to entitle the plaintiff to recover, and the burden of proving such negligence is upon the plaintiff.
If you shall be satisfied from the evidence that the defendant was guilty of negligence as charged, the plaintiff cannot recover in this action if he himself was guilty of negligence which contributed to the accident in which he was injured.
Such negligence of the plaintiff is not to be presumed, and the burden of proving it is upon the defendant.
Where there is an obstruction in a public street, whether lawful or unlawful, the traveler is bound to use reasonable care and diligence to avoid injury from such obstruction, and his failure to do so is negligence.
What constitutes such reasonable care and diligence will depend upon the facts of each particular case.
If the danger is open and apparent, such as the plaintiff
On the other hand, if the danger was not known to the plaintiff and he could not have discovered it by the exercise of reasonable care, a less degree of care and diligence was required of him.
The presumption that a public street is safe for ordinary travel applies only to those who have no knowledge or reasonable means of knowledge that it is unsafe.
It is negligence for a passenger upon a moving street car unnecessarily, to expose his person, or any part thereof, beyond the exterior line of such car, or beyond the outer edge of the running-board.
The running-board of a street car, so far as concerns passengers, is intended for the purpose of furnishing a means of ingress and egress to and from the car; and if a passenger unnecessarily walks upon such running-board while the car is in motion, and while so doing is struck and injured by a post or pillar standing far enough from the track to allow the car to freely pass it, such passenger is guilty of negligence.
We decline to instruct you to return a verdict for the defendant as requested by the defendant.
If your verdict shall be for the plaintiff it should be for such sum as will reasonably compensate him for his injuries, including his loss of time, his pain and suffering in the past and such as he may hereafter endure as the result of his injuries, and for his permanent injuries, and the impairment of his ability to perform the duties of his usual occupation, and such reasonable expenses as he may have incurred in endeavoring to be cured of his injuries
The jury disagreed.
