Maxwell v. Wilmington City Railway Co.

Lore, C. J.,

(charging the jury.)

This is an action on the case brought by John Maxwell, Administrator of Robert S. Maxwell, deceased, against the Wilmington City Railway Company, to recover damages for the death of the decedent, caused, as it is alleged, by the negligence of the defendant company.

On the 21st day of October, 1892, on what was known as Columbian Jubilee Day, between 12 o’clock midday and 1 o’clock in the afternoon, Robert S. Maxwell, the deceased, who was a member of the order of Knights of the Golden Eagle, was riding his young mare easterly on Delaware avenue, in this city, with two-companions, to join in the parade of that day. Between Clayton and Rodney streets the mare he was riding was struck by electrio car No. 41, which, propelled by electricity, was passing westerly on-the track of the defendant company. By the collision the mare was knocked down and pushed ahead of the car, and the rider was-thrown under the truck of the car and killed.

The plaintiff claims that the accident and death resulted from the negligence of the defendant company ; that at the time of the accident car No. 41, with defective brakes, draped in flags and bunting, was descending the grade on Delaware avenue at an unreasonable and dangerous speed, with no apparent effort on the part of the motorman to stop the car, notwithstanding an apparently frightened and ungovernable horse was in full view upon the track before him.

The defendant, on the other hand, denies all liability, and avers, first, that it was in no wise negligent, but made every effort to prevent the accident; that its car No. 41 and its railway tracks-were both in good order, its motorman vigilant and efficient; second, that even if there was negligence on the part of the company that there was contributory negligence on the part of the deceased, in that he was riding a spirited, nervous and unbroken young mare,, and that he voluntarily crossed with her in front of an approaching car, from a safe position to a dangerous one, from the south to the north side of the street.

Delaware avenue, along which the tracks of the defendant company run, is a public highway of this city, which the defendant company has a right to use for the operation of its electric railway, in common with travellers, who may elect to use it, on foot, on horseback, in vehicles drawn by horses or otherwise. Every part of this highway may be rightfully used by the public. The electric cars can use only a part of it, as they move only in fixed lines over their tracks. Within these lines the right of the company is superior to that of other users, and must not be unnecessarily interfered with or obstructed.

These cars, although belonging to a private corporation, are used for public convenience, carrying many passengers, and meeting, largely, the growing demand for rapid transit in city life.

In using this highway all parties are bound to exercise reasonable care to prevent accidents and collisions. Such care must be in proportion to the danger accompanying the particular use in each case.

It is the duty of the company to put and beep its cars and roadway in good condition; to provide competent and careful motormen and servants and to see that they use reasonable care in operating the cars to avoid danger; that they run at reasonable rates of speed, and that they slow up or stop, if need be, where danger is imminent. There is a like duty on the part of people otherwise using such highway to stop, and if need be to turn out of the tracks of the cars in the presence of danger; inasmuch as being free to move at pleasure, they have the use of every part of the highway, while the cars can only use their fixed tracks. You will readily perceive if this were not so that travel in electric cars would be at the mercy of every person who saw fit to place himself on the tracks, and rapid and convenient transit of passengers thereby would be at an end. Both parties, therefore, were rightfully on Delaware avenue on that fateful day. We are, therefore, confronted with the crucial question in this case, Did the accident and death of Robert S. Maxwell result from the negligence of the defendant company ?

If the defendant company was guilty of no negligence your verdict should be for the defendant. If you believe, however, from the evidence that the defendant was guilty of negligence, but that the deceased, Robert S. Maxwell, was guilty of the negligence that was the proximate cause of the accident and death, then he contributed to the accident, and the plaintiff, his administrator, cannot recover. “ Where there has been mutual negligence, and the negligence of each party was the proximate cause of the injury no action whatever can be sustained.” 4 Am. & Eng. Encyc. of Law, 16; Praw vs. Vermont Central Railroad Company, 4 Vt. 487, and other cases.

If, however, you believe from the evidence that the defendant company was negligent, and that such negligence was the proximate cause of the accident and death; in that case, although the deceased might have been guilty of some negligence, it would not be contributory negligence, and the plaintiff would be entitled to recover, for it is now well settled “ that the plaintiff may recover damages for an injury caused by the defendant’s negligence, notwithstanding the plaintiff’s own negligence exposed him to the risk of injury, if such injury was proximately caused by the defendant’s failure, after becoming aware of the plaintiff’s danger, to use ordinary care for the purpose of avoiding injury to him.” Shearm. & Redf. Negl., §99, and cases cited.

This is now the well settled law in this State; Jones vs. Belt, 8 Houst. 562, and Ford vs. Charles Warner Company, supra.*

This whole question of negligence is for your determination under the law as the Court has above laid it down. You are to say whether there was negligence on either or both sides, and what was the effect thereof in causing the death of the deceased.

In determining this question of negligence you are to take into consideration the day, the place, the actors, their conduct, surroundings and all the circumstances connected with the sad tragedy, and after a careful and thorough review to say where the blame, if any, lay.

Inasmuch as the plaintiff claims damages, because of the alleged negligence of the defendant, the burden of proof is on the plaintiff to show such negligence to your satisfaction by a preponderance of the evidence.

In reaching your verdict in this case you must be governed only by the evidence. Ho declarations or statements not supported by that evidence, and no information from any other source should be considered by you for one moment.

February 1, 1894.

There is great conflict of testimony in this case on nearly every material point. In considering a conflicting testimony the rule is that you must reconcile it if you can. If you cannot reconcile it, then you should give credit to and be governed by that testimony which in your judgment is most worthy of belief, taking into consideration the intelligence, apparent truthfulness, bias or impartiality of the witness, his manner and conduct upon the stand, and his opportunity of getting correct information. When this is done the weight of the evidence in your best judgment must control your verdict.

Should your verdict be for the plaintiff, the measure of damages is such a sum as fhe deceased would probably have earned in his business during life, and which would have gone to his next of kin, taking into consideration the age of the deceased, his ability, disposition to labor and habits of living and expenditure.

If you find for the defendant your verdict should simply be for the defendant.

After remaining out twenty-eight hours the jury returned and reported that they could not agree, and they were discharged.

* See page 88 for the opinion of the Court in this case.