Price v. Charles Warner Co.

The court charged the jury, upon the various propositions of law, raised by the prayers of the respective counsel, as follows: Spruance, J., charging the jury : Gentlemen of the jury:—This is an action brought by George T. Price, the plaintiff, against Charles Warner Company, a corporation of this State, the defendant, to recover damages for personal injuries to the plaintiff alleged to have been incurred in a collision between an electric car of the Wilmington City Railway Company, of which the plaintiff was then the motorman, and a loaded coal wagon of the defendant then in charge of one of its drivers, at the intersection of Tatnall and Fourth streets in this city, on or about the eleventh day of August, 1897. It is claimed by the plaintiff that the collision was caused solely by the negligence or recklessness of the servant of the defendant in driving the wagon upon the railway track in front of the approaching car; that it was not due to any fault or neglect of the plaintiff; and that he exercised due care and diligence in attempting to avoid the collision, but was not able to do so. It is claimed by the defendant, that it had the right to cross the railway track when and as it did, or attempted to do; and that there was no negligence on the part of its driver, or if there was any, that the collision was not the result of such negligence, [470] but was occasioned by the negligence or recklessness of the plaintiff in not checking or stopping the car before it came in contact with the wagon. Fourth and Tatnall streets are public highways. The railway company and its servants have the right to use Fourth street for the operation of its railway thereon, and the public generally have the right to use said street for the ordinary purposes of a public highway. In this joint use of the street life and property would be in constant peril unless the railway company and the general public were held to due and proper care in the exercise of their respective rights. What is due and proper care must depend upon the particular facts of each case, and general propositions, unless limited and qualified by the circumstances under consideration, are apt to be misleading. Upon this subject this court in a recent case (Brown vs. Wilmington City Railway Company, 1 Pennewill, 335) said : “We are not prepared to lay down in this case any absolute rule as to what precise acts of precaution are necessary to be done or left undone by persons who may have need to cross electric city railways. Such acts necessarily must depend upon the circumstances of each particular case. The degree of care differs in different cases. Greater care is necessary in crossing a road where the cars run at a high rate of speed and close together than where they run at less speed and remote from each other. In like manner where the view at the crossing is obstructed, or in a neighborhood where there is much noise and confusion, greater care is necessary than in places where the view is unobstructed and with quiet surroundings. In like manner a railway is held to greater caution in the more thronged streets of the densely populated portions of the city than in the less obstructed streets in the open or suburban parts. From these illustrations manifestly the care to be used depends largely upon the circumstances of each case. It would therefore be difficult, if not dangerous, to lay down any inflexible rules. [471] ‘‘The general rule upon this subject is, that persons so crossing a street railway track are bound to the reasonable use of all their senses for the prevention of accident, and also to the exercise of all such reasonable caution as ordinarily careful and prudent persons would exercise in like circumstances. This rule is plain and well settled ; and is to govern you in the determination of this case.” A person approaching a railway crossing with which he is familiar, is bound to avail himself of his knowledge of the locality and act accordingly. If the approach of the railway to the crossing be down a steep grade, whereby it is more difficult to stop or check a car, the driver of a vehicle should exercise more care than might be necessary where the approach of the railway was by a slight decline, upon a level, or by an ascending grade. If as he approaches the crossing his line of vision is unobstructed, he is bound to look for approaching cars in time to avoid collision with them, and if he does not look, and for this reason does not see an approaching car until it is too late to avoid a collision, he is guilty of negligence. It has been held by this court that the right of a street railway company, within its lines, is superior to that of other users of the street (Maxwell vs. Wilmington City Railway Company, 1 Marvel 199; Brown vs. Wilmington City Railway Company, 1 Pennewill, 335. ) The reasons assigned for this are, the public need of safe and reasonably rapid transit by street railways, and the limitations upon the movements of the cars by reason of their being confined to a track, and incapable of being turned aside to avoid collisions. The broad assertion of the superior right of a railway company may be subject to abuse, and should not be understood as exempting it in any case from the exercise of due and proper care. It would be a fearful doctrine that persons in charge of street cars have the right to run down persons or vehicles when472 ' ever upon the track, even when there unlawfully or negligently —if by the exercise of reasonable care on the part of those in charge of the cars, collision could be avoided. It is contended that this doctrine of the superior right of a railway company has no application to street crossings. It would certainly be contrary to public policy and in violation of the rights of the railway company to allow its tracks to be blocked at street crossings by the negligence of drivers of vehicles, but a correct understanding of the rights and duties of both parties will avoid any confusion upon the subject. The public, using due care, have the right, in vehicles or on foot, to cross the railway tracks, as well within the blocks as at street crossings. There is, however, this difference : The company has knowledge that at street crossings a larger number of persons and vehicles are usually found crossing the track than at other places, and this imposes upon the company the need of greater care at street crossings than where the danger is less. The company and the traveler are required to use such reasonable care as the circumstances of the case demand—an increase of care on the part of both being required when there is an increase of danger. ‘ ‘The right of each must be exercised with due regard to the right of the other, and the right of each must be exercised in a reasonable and careful manner, so as not unreasonably to abridge or interfere with the right of the other. ’ ’ ( O'Neil vs. Dry Dock Company (N. Y.,) 29 N. E. Rep. 84; Omaha Street Railway Company vs. Cameron (Neb.), 61 N. W. Rep. 606.) In this case it was the duty of the plaintiff to exercise such care to avoid collision with the wagon of the defendant as the circumstances required If the approach to the crossing was by a steep down grade, it was his duty to make the descent at such reasonable speed as not to put the car beyond his control; and as the danger of collision increased, if he saw, or could see the danger, it was his duty to use all the means in his power to check or stop the car. And if the plaintiff failed in his duty in either of these respects he was guilty of negligence and cannot recover, even if [473] the wagon of the defendant was negligently driven upon the track. On the other hand the plaintiff was not required to perform an impossibility, and if in the exercise of reasonable care it was impossible for him to avoid the collision, he is entitled to recover, if you find that the wagon was negligently driven upon the track. The plaintiff and the driver of the wagon had each the right to presume that the other would act as a reasonable man—considering all the circumstances under which he was placed—until the contrary appeared. If you shall conclude that the injuries to the plaintiff were occasioned by the negligence, as defined by us, of the defendant’s servant, the driver of its wagon, and without the fault or negligence of the plaintiff, the defendant company is liable in this action, the master being responsible for the negligent conduct of his servant in the course of his employment. The facts of this case are not such as to warrant you in finding a verdict for punitive or exemplary damages. If your verdict should be for the plaintiff, you should award him such sum by way of damages, as you may conclude from the evidence to be an adequate compensation for his pain and suffering of mind and body, loss of bodily and mental powers, nability to perform ordinary labor and incapacity to earn money, in the past or in the future, which are the immediate and necessary consequences of the injuries sustained by him. If such injuries are in your judgment, in view of all the evidence, of a permanent character, you should consider that fact in determining the amount of his damages. Verdict for defendant.