Ellis v. Di Sabatino

178 A.2d 471, 54 Del. 302, 4 Storey 302, 1962 Del. Super. LEXIS 77
CourtSuperior Court of Delaware
DecidedJanuary 30, 1962
DocketNo. 1589
StatusPublished
Cited by2 cases

This text of 178 A.2d 471 (Ellis v. Di Sabatino) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellis v. Di Sabatino, 178 A.2d 471, 54 Del. 302, 4 Storey 302, 1962 Del. Super. LEXIS 77 (Del. Ct. App. 1962).

Opinion

LYNCH, Judge.

Plaintiffs sued defendants to recover damages resulting from collision of two automobiles, one driven by Louise A. Ellis and the other driven by Ernest A. DiSabatino. The collision took place at the intersection of Bancroft Parkway and West Fourth Street in Wilmington. The accompanying sketch of the street intersections will help in understanding the facts.

Plaintiffs’ complaint alleged the collision took place on November 12, 1959 at about 3:00 P.M. They charged Ernest DiSabatino was negligent in the operation of defendants’ car as it was proceeding east on West Fourth Street.

[304]*304Defendants’ answer denied negligence on behalf of Mr. DiSabatino and set up contributory negligence, contending Mrs. Ellis “failed to remain at a stop in obedience to a stop sign, but proceeded across Fourth Street at a time when such movement could not be made in safety in violation of 21 Del C., § 4143(b)”.

Mrs. Ellis testified on deposition. An affidavit was filed on behalf of the defendants, it having been made by the defendant, Ernest A. DiSabatino. Some comment will be made hereafter regarding this affidavit.

It was Mrs. Ellis’ testimony that the weather was clear and the sun was shining at the time of the accident; that she was proceeding north on the east lane1 of Bancroft Parkway toward its intersection with West Fourth Street, proceeding from a friend’s apartment to her place of employment. West Fourth Street is approximately 50 feet wide at its intersection with Bancroft Parkway. The east lane, which carries northbound traffic is 21 feet wide at its intersection with the south curb line of West Fourth Street. There is a stop sign at the intersection of the east lane of Bancroft Parkway and its intersection with West Fourth Street. There is a school on the South side of West Fourth Street, west of the west lane of Bancroft Parkway. As Mrs. Ellis drove north on the east lane of Bancroft Parkway a car was parked at the south curb of West Fourth Street in the area of the grass plot separating the west and east lanes of Bancroft Parkway. Mrs. Ellis testified that as she drove north on Bancroft Parkway her speed was about 5 to 10 miles per hour. She stopped her car at the crosswalk, at the south curb of West Fourth Street, at Bancroft Parkway, to let children, walking on West Fourth [305]*305Street in an easterly direction, cross in front of her. She stated (Dep. 18-19) that there was a large number of children and it was necessary for her to stop for about five minutes, after which she moved her car to the intersection of the south curb of West Fourth Street and the east curb of the east lane of Bancroft Parkway and stopped again. Having looked in both directions on West Fourth Street she entered the intersection and at that time saw no cars moving in either direction and when she looked to her left (Dep. 41). There was a taxicab parked at the south curb of West Fourth Street, in the grass plot which separates the east lane and west lane of Bancroft Parkway, and Mrs. Ellis admitted this could have blocked her view as she looked to her left in entering the intersection (Dep. 20 and 38). Mrs. Ellis further admitted that she may not have looked to her left (Dep. 20), as she pulled into the intersection and after the parked taxicab ceased to obstruct her view (Dep. 39); that she was concerned with children playing around the north curb of West Fourth Street in the area near the east lane of Bancroft Parkway, and she was watching these children as she drove into and through the intersection. At the time of the collision Mrs. Ellis was proceeding straight across West Fourth Street north on the east lane of Bancroft Parkway (Dep. 17), and the first time she saw the DiSabatino car was when she heard the sound of its brakes (Dep. 11); she thinks that the DiSabatino car was going “pretty fast”; she was unable to estimate its speed (Dep. 14). When she saw the DiSabatino car it was less than a few feet from the rear of her car (Dep. 14); and the front of the DiSabatino car struck the left rear wheel of the Ellis car (Dep. 15).

Mrs. Ellis testified that when she had seen Mr. DiSabatino’s car (Dep. 14) it was going “pretty fast”; “he threw quite a bit of skid mark when it hit me”. The force of the collision was sufficient to buckle up the inside of the trunk of the Ellis car (Dep. 5) when the DiSabatino car struck the Ellis car, Mrs. Ellis said (Dep. 15) she was only [306]*306going 5 miles per hour and she had almost cleared the intersection (Dep. 20) and the DiSabatino car (Dep. 14) was “less than a couple of feet away”. It may be observed in passing that Mrs. Ellis’ car has an overall length of 18 feet.

Mrs. Ellis further testified (Dep. 23) that Mr. DiSabatino told her at the scene of the collision that he felt the collision was his fault. He told Mrs. Ellis that he was on his way to an appointment at the Marine Terminal and was due there at.3:30 P.M.; thus, it appears that it would have been necessary for Mr. DiSabatino to have driven clear across the city to reach his point of destination.

An affidavit filed by Mr. DiSabatino states that his office was located about four blocks west of the intersection of West Fourth Street and Bancroft Parkway. He left from his office and he had driven east on West Fourth Street to the intersection where the collision occurred. He knew that traffic on all streets crossing West Fourth Street was controlled by either stop signs or traffic lights. As Mr. DiSabatino approached the west lane of Bancroft Parkway he was watching the children at play in the area; he stated that his view of traffic on the east lane of Bancroft Parkway was partially obscured by the taxicab parked along the south curb of West Fourth Street just west of the east lane of Bancroft Parkway. Mr. DiSabatino fixed the speed of his car at 20 miles an hour and he testified the Ellis car drove into the intersection, as he was proceeding on West Fourth Street, approaching the intersection with the east lane of Bancroft Parkway; he stated he applied his brakes but skidded into the rear of the Ellis car.

Defendants, it is to be noted, argue their contention of contributory negligence on Mrs. Ellis’ part solely on 21 Del. C. § 4143(b), which section provides:

“§ 4143. Stop signs
“(a) Whenever a stop sign, notifying drivers to come to a full stop, has been erected by the proper State or local au[307]*307thorities as provided in this title, it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto.
“(b) The operator of any vehicle who has come to a full stop as provided in subsection (a) of this section, shall not enter into, upon or across, such highway or street until such movement can be made in safety.”
The Motor Vehicle Laws, Traffic Regulations and Rules for Driving, adopted by the Street and Sewer Department (now Department of Public Works), and applying to “all driving and vehicular traffic and coaches, as well as pedestrians, on the public streets of the City of Wilmington, Delaware,” has a specific section, viz. Section 602 — that applies to “Stop” signs—

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Bluebook (online)
178 A.2d 471, 54 Del. 302, 4 Storey 302, 1962 Del. Super. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-di-sabatino-delsuperct-1962.