31 Del. 273 | Del. Super. Ct. | 1921
charging the jury:
You are trying two cases growing out of the same alleged accident: First, Iva Wollaston, a minor, by her next friend, Charles P. Wollaston, her father, seeks to recover damages from Alfred C. Stiltz, the defendant, for injuries claimed by her to have been caused by the negligence of the defendant. Second, Charles P. Wollaston, the fatlier, claims damages or compensation for money expended by him for professional and medical services given to the daughter, and made necessary by reason of said accident.
The plaintiffs claim that on the evening of January 22, 1919, Iva Wollaston, one of the plaintiffs, was walking on the westerly side of the Depot road, a public highway, heading 'southward from the town of Newark to the Pennsylvania Railroad station, in this county. That she was in company with two girl companions. That they were walking southward on said road, and on the right-hand side thereof. That the evening was dark with an unusually he'aiy'y mist or fog prevailing. That the three girls heard an automobile passenger bus or truck approaching from the south in the opposite direction from which they were walking. That, owing to the fog and darkness, the approaching vehicle could not be clearly seen. That a man in a buggy approached the girls from behind and hallooed to them to avoid danger by jumping in the ditch on the right side of the road. That the girls, heeding the warning, jumped into the ditch. That the automobile bus struck Iva Wollaston and she was carried home by a bystander. The claim is that the driver of the automobile bus was negligent in that he was driving on the left-hand side of the highway, and that by reason thereof the said Iva Wollaston sustained the injuries for which she seeks to recover in this action.
The defendant denies negligence upon his part and claims
These cases are based upon the negligence of the defendant, and in order that the plaintiff may recover, they must satisfy you by a preponderance of the evidence that there was negligence on the part of the defendant or his servant in the operation of the automobile bus, and that the injuries to Iva Wollaston resulted ■ therefrom. Negligence is not presumed, it must be proved, and the burden of proving it is upon the plaintiff.
Therefore, before plaintiff can recover, you must be satisfied that Alfred C. Stiltz was, at the time of the accident, the owner of the automobile bus which caused the accident.
It was conceded that the driver or operator was the agent or servant of the defendant. If such operator, being the servant of the defendant, was negligent in the operation of the machine, it would be the negligence of the defendant, and the deféndant would be liable for any injury proximately caused by such negligence, provided the person injured was not guilty of some negligence on his part which contributed to said accident.
Negligence is defined to be the want of ordinary care, that is, the want of such care as a reasonably prudent and careful person would exercise under like circumstances. An accident which could not be prevented by the exercise of ordinary care and prudence is termed an unavoidable accident, and no recovery for injuries arising from such an accident can be had, as the element of negligence is lacking, which is the basis of claims for damages.
It is the law of this state that a traveler on the public highway proceed on the right-hand side of the highway. It has been held in this state that a violation of a statute amounts to negligence in law, whether any positive or active negligence be proved or not. It is what is commonly known in law as negligence per se, but fhe defendant would not be liable for injury resulting from such negligence unless the evidence clearly establishes that the violation of the statute, if any, caused the accident complained of.
If you are satisfied from the evidence that the driver of the automobile bus, in the exercise of due care and caution, was suddenly confronted with a horse and buggy approaching him in front, and, without knowledge of the presence of the girls on the right of the road suddenly turned his machine to the left of the road to avoid collision with the horse and buggy, it will be for you to say whether, under such circumstances, the driver of the machine acted negligently in so doing.
When the testimony is conflicting, the jury should endeavor to reconcile it so that the whole may be harmonious. If this cannot be done, then it becomes your duty to estimate and weigh in your minds the value of the testimony on the respective sides and give your verdict to that side upon which the testimony is of the greater weight or perponderance, and most worthy of credit. In estimating such weight, the jury are to consider the witnesses’ means of knowledge of the facts about which they testified, their intelligence, their apparent truthfulness and fairness, and any other facts or circumstances shown by the evidence with respect to the witnesses that show the reliability of their statements.
In the second case, if your verdict should be for the plaintiff father, it should be for such a sum as will reasonably compensate him for any expenses incurred for professional and medical services given to his daughter, made necessary from the accident.
Verdict, in each case for defendant.