The Wilmington daily Republican. (Wilmington, Del.) 1890-1902, 1899-01-09
IMPORTANT
]. DECISION.
5ddaNSpS1aaaSl;ss Charge
to the Jiry In the
Price VS.. Warner
s. Case. :

crossing by pedestrian or teamster, aud
an electric car Tho cusv was the first Of
Its kind tried before Delaware court. and
Inc following clear opinion Of Judge
spruance's on tho law involved Is iike-
wise the hrst Oh record here, aud 10 there.
fore OF considerable importance:
Gentlemen Of the jury This 10 an 40.
ton brought by George 4. Prics. thu plain
ill., against Charles Warnor Company, Il
corporation Of This stale, the defendant to
reo"ver damages for personal injuries to
the plaintiff who was the motorinan, and
loaded coal wagon Of the defendant then
in charge Of one of its drtyets, at tho in
terscc:ion Of Tatnall aud Fourth streets
IN this city, on or abouG the eleventh day
Of August, 1897.
IL is claimed by the plaintiff that the
collision was caused solely by tho negli.
gence or r1ckle 'snsss OF the servant Of the
Defendant III driving the wagon upon the
railway track in front of tho approaching
car; that 1t was not due to any fault or
neglect tho plaintiff; aud that no exer--
cised due care and diligence in attempt
ing to ayoid the collision but was not able
| to do 80
1t is claimed by the defendant that it
had the right TO cross the railway track
| when and us it did OF u tempted to do;
anu that there was no negligence On the
| part of its driver, or ii there was any, that
the collision was not tho result of such
negligence, but was Occasiouei by the
recslesshess of the plaintiff in not check
ing or stopping the Car he orr is came in
contact with the wagon.
Fourth and Iatnall streets are high
ways. Tho railway company ami It's SER
wants have the right to use Fourth street
Tor the operation of its railway thereon,
and no public generally has tho
rlSht to use said street for The ordi-
nary purposes of II public highway
In this joint uso of the street life anil
property would be in constant peril unless
Inc railway company and the general pub.
lie were held to due and proper care in the
exercise of their respective rights.
What is due and proper care must de-
pend upon the particular facts of each
case, and general PROPOSE ions, unles,
limited and qualified by tho circumstan.
ces under consideration. are apt to be
misleading.
Upon this subject this Court In recent
case Brown vs.. Wilmington City Rail-
Way Company, I'ennewill, 1857 said; "We
are NOT prepared o lay down in this case
any absolute rule to villa, Dreci Q ac
of proceeding are necessary to be done or
LETT uhi"ne by pc, IN, who may hava he ii
to cross electric city railways. Such ac,s
ncces arily must depend upon the circum-
'tahces OF each particular case. Tho d.
gree OF care differs in different casc4.
u en- care is necessary in Gro ,singa road
Who'e the cars run at a high rate Of speed
an clos together than win ire thoy run lG |
less speed and reno fro:n each other In
like manner where the view at the cross |
ing Is o'trlctei or in nighborho ID |
where thoro is much moi ie nnu confusion. |
create" care is necessary than in places
where tho view Is anobstructed and with |
qIiet surroundings. In like manner n |
railway is held to greater caution in The |
iated portions of the city than in tho less
o4structed streets in the open orsubnrban
parts From those illustrations manifest
~ the care TO be used depends largely upon
the circumstances of elcl case. 1t would
therefore be difficult If not dangerous, to
lag down any inf xible rules
II he general rdlu upon this subject H.
that persons SO crossing a street railway
track are bound to the reasonable uss of
all their senses for the prevention of acct
dent and also The exercise Of al .uch leas
aonabe caution rs ordinarily careful and
prudent pc rs would exercise in like
Clrc INSTANCES, This rule Is plain and
well settled; and is to govern you in the
determination of this case
a person approaching n railway crossing
with which he is familiar is bound to
avail himself of his knowledge of the To-
cHlty and act accor 'ingy. If the approach
of the railway to tho crossing be down
s!ee grade, whereby il is moro difficult to
stop or check u car, the driver of u vrhi-
Gle should exercise more care than might
De Necessarily whsr' tho approach of tho
railway was by i. sight dec line, upon u
level. or by an s.rGh,!ing grade
II is he approaches the crossing his line
Of vision Is unubs:rGcted he is bound to
look for approaching c IRIS IN time to avoil
collision With them, and it he does not
look, and Tor this reason does nat SEQ an
approaching cnr until IL is too late to nv old
a collision, he Is guilty of negligence.
1t has been held by this Court that tho
right of street railway company within
its lines, i superior to that Of other users
o: the street (Mnxwell VS.. Wilmington
City Railway Company, l Navel 1872;
Brown vs. Wilmington City Railway Co,
Pennowll 1857.
The reasons assigned for this are, tho
public need of snfe and reasonably rapid
transit by street railways and the limita-
lions on the movements OF the cars by
reason Of eirbring confined to track.
and incapable OF being turned aside to
avoid collisions.
The broad assertion Of the superior
right of a railway company may be SUBJ
sect to abuse, and should not be understood
40 SANi'iH'iHB IL III any CdSs from the eS6r- |
else of due and proper care.
1t would be fearful doctrine thnt per.
sons IN charge of street cars have tho right
to run down persons or vehicles whenever
upon the track, or even when there unlsw.
fully or negligently-if bv tho exercise of
reasonable care on the part Of those in
charge Of the cars, collision could be avoid
ed.
1t is contendel that this doctrine of the
superior right Of q railway company has
10 application to street crossings. IL
would certainly be contrary to public poli.
~ and in violation Of the rights of the
railway company to allow its tracks to be
blocked at street crossings by the negli-
gonco Of drivers Of vehicles, but correct
Of the rights and duties of
both parties will avoid any confusion upon
the subject.
lhc public, using due care, have the
right in vehicles or on foot, TO cross tbe
RAILWAY tracks, n we'll within the blocks
o N 81 MA tpp,s eli Ilon |