450 F. Supp. 1162 | D. Del. | 1978
Plaintiffs, against whom a jury verdict was rendered in a motor vehicle accident
The action may be viewed as one solely by the plaintiff Stella Lillie Lynch Townsend (“Townsend”) against the defendant John Roland Wise (“Wise”).
Plaintiffs’ motion for judgment n. o. v. requires the Court to determine whether the evidence and all reasonable inferences arising therefrom favorable to Wise afforded the jury a rational basis for finding that the accident was caused at least in part by the negligence of Townsend, for if the evidence did, the motions must be denied. See Dudley v. South Jersey Metal, Inc., 555 F.2d 96, 101 (3d Cir. 1977); Zegan v. Central R. R., 266 F.2d 101, 104 (3d Cir. 1959); 5A Moore’s Federal Practice ¶ 50.07[2] (2d ed. 1974).
An analysis of the evidence, viewed in the light most favorable to defendant, establishes that the jury did have a rational basis for finding that Townsend was contributorily negligent and that her contributory negligence was a proximate cause of the accident.
So viewed, the evidence establishes that Wise’s tractor trailer had entered the intersection after having stopped at the stop sign (Doc. No. 89, at 24-25)
The failure of Townsend to reduce her speed below about 50 miles per hour until she was virtually at the intersection was a sufficient basis for the jury finding that under the circumstances and requirements of the law her speed was excessive and a cause of the accident. Townsend testified that she had traveled the same road “many, many times before” (Id. at 2). She knew that a stand of trees existed at the intersection which blinded her view to oncoming traffic on Route 456. (Id. at 4). For Townsend to be traveling at about 50 miles per hour without making any effort to slow
One of the statutes which Wise charged Townsend with violating is 21 Del.C. § 4168(b) (1974). It reads:
“The driver of every vehicle shall, consistent with the requirements of subsection (a) of this section,3 drive at an appropriately reduced4 speed when approaching and crossing an intersection and when a special hazard exists with respect to . other traffic . . .”
In Williams v. Chittick, 1 Storey 122, 51 Del. § 122, 139 A.2d 375 (Del.1958), the Delaware Supreme Court construed the forerunner of section 4168(b)
“This does not mean that he does not have to keep such lookout as a reasonably prudent person would do in order to discover possible danger or to act carefully under existent conditions. Of course, cases may arise where under certain circumstances the driver on a favored road may be guilty of negligence contributing to the accident.”
139 A.2d at 378. Immediately after this the Court said:
“But he is not required to slow down in anticipation of danger which has not become apparent.”
This last sentence was understandable in the context of the fact's before the Court. In Williams, unlike the present case, the driver on the through highway had a clear view of the car which was approaching the intersection on the controlled highway. In the present case, the fact that Townsend’s ability to see traffic approaching the intersection from a northerly direction on Route 456 was obscured created a “special hazard” of the type referred to in section 4168(b) and left for the jury to decide whether Townsend’s 50 miles per hour speed was an “appropriately reduced speed” under the circumstances. In finding that Townsend was contributorily negligent the jury could well have decided that it was not.
The finding of the jury that Townsend was contributorily negligent had a rational basis under the evidence to support it.
Plaintiffs’ motion for a new trial is based upon the alleged error of the Court in defining the negligence of the defendant in the light of her failure to avail herself of a last clear chance to avoid the accident. Plaintiffs argue that only a plaintiff and not a defendant is entitled to such an instruction. Delaware law, by which this Court is bound, is to the contrary. In Island Express, Inc. v. Frederick, 5 W. W. Harr. 569, 35 Del. 569, 171 A. 181 (Del.1934), the Delaware Supreme Court reversed the trial court because it refused to give a last clear chance instruction requested by a defendant. The Court held that the jury should have been instructed that if the plaintiff had a last clear chance to avoid the accident by the exercise of reasonable care
Plaintiffs also argue that the facts did not justify the Court in defining negligence in the context of last clear chance. Plain-, tiffs’ Exhibit 4 was prepared by Officer Robbins, who investigated the accident. It reveals that on the easterly side of County Road 456 there was a 12 feet grass shoulder. Townsend made no attempt to avoid the collision by turning her car to the right onto the grass shoulder. Whether her speed was such as to render this impractical was for the jury to say.
Even if the Court should not have given the jury a last clear chance charge under the facts, nevertheless, the evidence of Townsend’s negligence based upon her failure to reduce the speed of her car was so clear that the Court’s error in giving the last clear chance charge, if error there was, was harmless. See Fed.Rule of Civil Procedure 61. The other arguments made by plaintiffs have been considered and rejected. The case was fairly tried for five days and a new trial is not called for.
Both motions will be denied.
. Plaintiffs son William H. Lynch and the Stella Lynch Townsend and William H. Lynch Partnership were also named as plaintiffs and Wise’s employer Maryland Chicken Processing, Inc. was joined as a defendant. The Travelers’ Insurance Companies intervened as a plaintiff to recover from defendants monies it allegedly paid to plaintiffs as a result of the accident pursuant to the subrogation terms of its insurance contract with plaintiffs. The rights of all of these parties were determined by the verdict and no separate consideration of them is required in passing upon the pending motions.
. Evidence offered by plaintiffs was to the effect that Wise had not stopped but simply slowed down. (Doc. No. 96, at 40).
. Section 4168(a) reads:
“No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and without having regard to the actual and potential hazards then existing. In every event, speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway, in compliance with legal requirements and the duty of all persons to use due care.”
. Effective August 5, 1976, the words “an appropriate” were substituted for “appropriately reduced.” See 21 Del.C. § 4168(b) (Supp.1974). Since that revision occurred subsequent to the accident in question, it is inapplicable to the present case.
. 21 Del.C. § 4125(b) (1953). The two statutes are virtually identical, with only two insignificant grammatical changes appearing in the statute governing the present action.