Johnson v. Wilmington City Railway Co.

76 A. 961, 23 Del. 5, 7 Penne. 5, 1905 Del. LEXIS 3

• Court: Superior Court of Delaware
• Decided: May 26, 1905
• Docket: No. 227
• Status: Published

Opinion

Pennewill, J.:

We think this question, not being based upon any facts involved in this case, is inadmissible.

“ Q. What, in your opinion, is the effect of a rapidly moving trolley car, down a steep declivity, upon a light object like a rope one-half inch in diameter, within six and one-half feet of the track dangling through the air and a part of it coiled on the ground?” Objected to by counsel for defendant because the question did not embody all the facts. Objection sustained.

“ Q. What, in your opinion, is the effect of a rapidly moving trolley car, down a steep declivity, upon a rope, dangling through the air for a distance of thirty feet and thirty feet more coiled on the ground and it being suspended through the atmosphere at a distance of six and one-half feet from the trolley car?” Objected to by counsel for defendant on the same ground. Objection sustained.

“Q. It has been testified this morning that the plaintiff in this case was a lineman in the employ of- the Delaware and Atlantic Telegraph and Telephone Company; that he was up a pole a distance of thirty feet; that he had tied to his right wrist a hand-line one-half inch in diameter; that that rope was sixty feet long and it had been coiled on the ground on the Wilmington side of the pole at the foot of the pole, close up against it, six and-one-half feet from the track; that as the man climbed up the pole with the rope it became uncoiled and thirty feet of it went up with him, making thirty feet of it suspended through the air, the remaining thirty feet still being coiled on the ground; that there was a wind blowing in the opposite direction from the trolley across the tracks, away from the tracks; that there was a feed wire running about half way between the top of the pole and the ground, the hand-line being still on the opposite side of the feed wire; that this car was running at a very rapid rate of speed; that as it came over the top of the hill a witness was standing in the middle of the tracks of the railway company and saw the car coming at a distance of across this court house, at a very rapid rate of speed, and as soon as he saw it that distance off he jumped out of the way and that he just cleared the track as the car rushed by; that the opposite end of this rope from where the man was, was seen in the brake-shoes or some part of the car; that this man, the plaintiff, was dragged quickly from the top of the pole down to the ground; that there were pieces of rope afterward found in the gearing of this car; that this all happened—one witness said in two or three seconds and others said almost at once: Now I will ask you, upon that state of facts, what, in your opinion, is the effect of that rapidly moving trolley car upon such a rope?” Objected to by counsel for defendant as being a matter for the jury and not for an expert to determine, and as not stating all the facts accurately.

Pennewill, J.: We think the witness may answer that question.

“A. In my opinion there might be suction enough to draw the rope to the car.”

Nathan Baker, having qualified as a motorman of electric cars of four years’ experience, gave similar testimony to the above. The plaintiff then rested.

Counsel for defendant thereupon moved for a nonsuit upon the following two grounds:

First, that the plaintiff’s evidence failed to show that there was any negligence on the part of the defendant.

Second, that said evidence showed that there was contributory negligence on the part of the plaintiff.

After hearing an extended argument and the citation of many authorities by the respective counsel, the court rendered the following opinion, granting the nonsuit:

Pennewill, J: The Court are clearly and unanimously of the opinion that the evidence in this case would be insufficient to support a verdict in favor of the plaintiff; and reluctant as we are to do so, we feel it our duty to grant this motion, and we direct a nonsuit to be entered.

(The plaintiff declined to take a nonsuit, and the defendant requesting that the jury be instructed to render a verdict for the defendant, the Court charged the jury as follows):

Pennewill, J., charging the jury:

Gentlemen of the jury:—For the reasons we have given in granting the motion for a nonsuit, we direct you to return a verdict in favor of the defendant.

Verdict for defendant.