Campbell v. Walker , 25 Del. 41 ( 1910 )

Hastings, J.

charging the jury:

Gentlemen of the jury: — This action was brought by the plaintiff, Mary E. Campbell, against the defendant, Alfred N.

Walker, to recover damages for personal injuries which she alleges she sustained by reason of being thrown from a wagon in which she was riding when the same was struck by an automobile belonging to and operated by the defendant on the twentieth day of August, A. D. 1909, on a public highway leading from the town of Newark to the town of Marshallton, this county.

The plaintiff alleges in her declaration that she was riding in a vehicle drawn' by a horse along the public highway on the date above mentioned, when the automobile of the defendant came up in the rear of said vehicle and overtook the same and collided with and struck the vehicle in the rear, and thereby caused her to be thrown out; that the negligence of the defendant consisted in—

First. His attempt to pass the said vehicle on the right side of the road and the right side of the vehicle.

Second. His failure to give warning of his approach.

Third. His operating the automobile when he was partially blind.

Fourth. His running of the automobile at a great, dangerous and unlawful rate of speed.

The plaintiff contends that the wagon in which she was riding at and before the time of the accident was on the right side of the road, with plenty of room on the left side for an automobile to pass; that she heard no horn blown, and her first knowledge that an automobile was approaching was when the horse that was hitched to the wagon showed some evidence of fright; that She looked around and found the automobile at the rear end of the wagon and attempting to pass on the right side; that the horse was pulled quickly to the left, but the automobile struck the right rear wheel of the wagon causing her to be thrown out and injured.

The defendant, on the other hand, contends that he saw the vehicle ahead of him on the left side of the road when a quarter of a mile away, and that when he had approached to within 100 yards of it, and while it was still on the left side of the road, he blew his horn and continued to blow it until only a few yards away; that when about eight feet from the rear of the wagon, and to the right thereof, he attempted to pass, but the driver of the wagon pulled the horse suddenly to the right and in front of the automobile, and at that time it was too late for him to stop the automobile and prevent the accident. The defendant further contends that at the time he attempted to pass he was in full control of his machine.

This, briefly stated, is substantially the contention of the parties to this action.

This accident happened on the public highway, which was open in all its length and breadth to the reasonable, common and equal use of the people, including the automobile as well as the vehicle in question. In using such highway all persons are bound to the exercise of reasonable care to prevent accidents. Such care must be in proportion to the danger in each case. For instance, greater caution is required at street crossings and in the more thronged streets of -a city than in the less obstructed streets or in the country. The persons operating an automobile, and the driver of a horse hitched to a wagon, whether along a country road or in the thronged streets of the city, are both required to use such reasonable care, circumspection, prudence and discretion as the circumstances require; an increase of care being required where there is an increase of danger. Both are bound to the reasonable use of all their senses for the prevention of accident, and the exercise of all reasonable caution as ordinarily careful and prudent persons would exercise under like circumstances.

A traveler has an equal right to employ an automobile as a means of transportation and to occupy the public highways with other vehicles in common use, and the operator of such automobile has the right to assume and to act upon the assumption that every other person traveling on the highway will exercise ordinary care and caution according to the circumstances and will not negligently and recklessly expose himself to danger and will make an attempt to avoid it.

This action is based on negligence, which has been 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 similar circumstances.

In this connection it is our duty to call to your attention a certain statute of this state entitled “An act defining motor vehicles and providing for the registration of the same, and uniform rules regulating the use and speed thereof,” being Chapter 120, Volume 25, Laws of Delaware. Section 11 of this act provides as follows:

“Upon approaching any person walking upon the public highways, or a horse, horses, or other draft animals being led, ridden or driven, the operator of the motor vehicle shall give reasonable warning of his approach and use every precaution to avoid injuring such persons or frightening such animals, bringing his motor vehicle to a stop, should such animals appear to be unmanageable, stopping his engine, if the occasion require it, until such animals (have) had sufficient time to pass.”

It is also provided by section 13, that—

“Whenever a person operating a motpr vehicle, or any person riding, driving or leading a horse, horses or other draft animals, shall meet any other vehicle or other draft animals, the operators, drivers or person having such animals in charge, shall reasonably turn to the right of the center of the said highway, so that such vehicle or animals may pass without interference, and the driver of any vehicle overtaking any other vehicle or draft animals being 'led, ridden or driven upon any public highway, shall pass to the left thereof, the driver of such vehicle or person having charge of such animals so overtaken shall turn to the right of the center of the road to allow free passage to the left.”

You will observe that there are two duties defined in this section 13 which apply to an accident such as the one we are now • considering. One is the duty placed upon the driver of any vehicle (an automobile in this instance), overtaking any other vehicle or draft animals being led, ridden or driven to pass to the left thereof; and the other duty imposed is upon the vehicle or persons having charge of such animals so overtaken (a horse and wagon in this instance) to turn to the right of the center of the road to allow free passage to the left.

In some jurisdictions it has been held that the violation of a statute, while evidence of negligence, is not conclusive; in the Iowa case, cited by the defendant, the court used the following language:

“The general rule seems to be that, where a collision occurs between the horse or vehicle of a person on the wrong side of the road and that of a person coming towards him, the presumption is that it was caused by the negligence of the person who was on the wrong side of the road, but that his presence on that side may be explained and justified.”

But it has been uniformly held in this state that a violation of a city ordinance or 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.

It is admitted by the defendant that he approached the wagon in which the plaintiff was riding from the rear and that in undertaking to pass the wagon he turned to the right thereof. In so doing we say to you that he was guilty of negligence. And if you should find from the evidence that the defendant did not give reasonable warning of his approach, as is provided by section 11, such failure on his part was negligence.

The defendant is not liable for such negligent act or acts however, unless you are satisfied from the evidence that the violation of the statute — that is, the failure to give reasonable warning of his approach, in one instance, and the turning to the right instead of the left, in the other — caused the accident complained of; nor would he be liable in any event if the injury was caused by the negligence of the plaintiff, herself, or if her own negligence contributed thereto.

In determining whether the plaintiff was guilty of such contributory negligence you should consider this provision of the statute with respect to the duty of the driver of this wagon. If you find from the evidence, as the defendant contends, that the wagon was on the left side of the road and failed to go to the right side after the driver knew, or by the exercise of reasonable caution should have known, that he, the defendant, was approaching in an automobile from the rear and desired to pass, such conduct on the part of the driver would be negligence; and if he were the plaintiff in this suit and such failure on his part to observe the statute contributed to and entered into the accident he could not recover because he would be guilty of contributory negligence.

Where, however, the plaintiff is merely a passenger in a vehicle and has no control over the driver, the negligence of the driver, if any, cannot be imputed to the passenger so as to defeat the latter’s right of recovery against a third person for injuries resulting from the concurrent negligence of such driver and third person.

“Even in such case, however, the passenger is bound to exercise due care and caution as well as the driver. It is no less the duty of the passenger, where he has the opportunity to do so, than of the driver, to learn of danger, and to avoid it if practicable.” Farley v. W. & N. C. E. Ry., 3 Penn. 581, 52 Atl. 543.

It is for you to say whether the plaintiff, from the evidence produced here, could by the exercise of due care have prevented the accident, and whether she did exercise the care and caution to prevent the same which a reasonably careful person would have exercised under like circumstances.

It has been held by this court that a pure accident without negligence on the part of the defendant is not actionable, and if you should believe from the testimony that the collision in this case was of such a character it would come under the head of unavoidable accident, and the plaintiff cannot recover.

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 the duty of the jury to estimate and weigh in their minds the value of the testimony on the respective sides, and give their verdict to that side upon which the testimony is of the greatest weight or preponderance 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 speak, their intelligence 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.

The testimony of witnesses who say without qualification that the automobile horn was sounded and that they heard it at or near the point of the accident, is of much more weight than that of witnesses who merely say that they did not hear it. Queen Anne's R. R. Co. v. Reed, 5Penn. 226, 59 Atl. 860, 119 Am. St. Rep. 301.

If you find for the defendant your verdict should be simply for the defendant. If on the other hand you find for the plaintiff your verdict should be for such a sum as will reasonably compensate her for her pain and suffering in the past and such as may come to her in the future, resulting from the accident.

Verdict for plaintiff.