Lynam v. Philadelphia, Wilmington & Baltimore Railroad

9 Del. 583

• Court: Superior Court of Delaware
• Decided: July 1, 1874
• Status: Published

Opinion

By the Court,

Gilpin, C. J.

It is always with reluctance the Court interposes to prevent a case from going to the jury on the evidence before it, but it is the duty of the Court when upon the proof produced on the part of the plaintiff to sustain his action, the question is formally presented to it on a motion for a nonsuit, whether, admitting it all to be true and undeniable, it is sufficient in law to entitle the plaintiff to recover in it, to decide whether it is, or is not, inasmuch as it is purely a legal question, by announcing its opinion upon it. This is not the case of a passenger in a railroad train, who has been injured by reason of the negligence of the railroad company, in which case the company is held to the exercise of extreme vigilance to prevent such an injury, but that of a traveler who has been injured in driving across a railroad, by a passing train, in which case each party is alike bound to exercise care and diligence in order to avoid the injury. He then recapitulated the facts proved, as before mentioned in the statement of the evidence, and remarked that it clearly appeared from the facts proved that although one of the ladies in the carriage at one time it seems casually looked out of it, after they had entered the lane and proceeded about two-thirds of the way from the turnpike to the railroad, and observed that she saw a light in her cousin Dal’s house, which was a half a mile or more down the railroad, and in the direction from which the train was then coming and approaching the crossing towards which they were driving, it does not appear that either she, or any other person in the carriage looked again in that direction for the light, or that either she, or Mrs. Lyman, or her son even then thought of looking for any passing train of any kind in either direction on the railroad, or even, that one might then possibly be passing upon that part of it; for in this connection it is a circumstance too striking to be overlooked, that so far as the evidence goes, it appears that not a word was said by either of them, then or at any other time, as to the possibility of their meeting a train at the crossing, by the time they reached it. On the contrary, it is in direct proof upon the testimony of both the young lady and young Mr. Lynam, that their reason for that and for taking no more thought of this kind, and no more heed, care or caution in driving down to and upon the crossing without stopping, or looking out and listening for any passing train at that time, was because they well knew all the hours for trains to pass their house, and that it was then an hour after the time for that train to pass there. But their knowledge of that fact, if it was a fact, that no train had ever before passed there an hour later than the time they mentioned, which was about 6 o’clock in the evening, and their confident reliance upon it was a great, as well as a sad and unfortunate mistake on their part, and was not only a very unwise, but an unreasonable and unwarrantable assurance or assumption to act upon, under the particular circumstances then surrounding them, or, indeed, at any other time. It, therefore, distinctly appears in this case, on the proof presented on behalf of the plaintiffs, that they assumed upon that ground that there was no danger from any passing train at that time, and proceeded without hesitation or reflection, or any doubt or misgiving, to drive down to the crossing and upon it, not only without stopping, but without looking out, or listening to ascertain if any train was approaching it from either direction, and which they could hardly have failed to discover, or to see or hear, as it must then have been so near them, had they done so but an instant before they drove upon the track at the crossing, and which would have prevented the collision and the injury which occurred to Mrs. Lynam and those with her in the carriage; and this we have no hesitation in saying, was done without that proper and ordinary prudence, care and caution on the part of Mrs. Lynam who was driving and had the control and direction of the horse and carriage, which the law requires of the traveler in every such case, and which constitutes a clear case of contributory negligence on her part under the facts and circumstances proved, according to all the best considered cases which have been adjudged on that question, both in this country and in England; and they are numerous in both, even more so than the copious citations in this case have already shown. And it is equally well settled on the authority of the cases both in this country and in England, that when such contributory negligence clearly appears from the evidence on the part of the plaintiff in the action, the defendant is entitled to a nonsuit. Shear. & Redf. on Negl. sec. 25, and the cases cited in the notes thereto.

Bird,

may it please the Court, I decline to take a non-suit, as I may conclude to carry the case and the question of law involved in it, to another Court for reconsideration and revision.

The Court

then instructed the jury that in the opinion of the Court, for the reasons already stated, the plaintiffs were not entitled in law to recover in the action, and the defendant had a verdict.