M'lane v. Sharpe

2 Del. 481

• Court: Superior Court of Delaware
• Decided: July 5, 1838
• Status: Published

Opinion

Per Curiam.

The authority appears to be on the point. The defendants here, and Tatman et al, are joint owners, and some of them have released. In the event of a recovery here the action against Cantwell must be a joint action, and then the principle comes in, that the release of any of them destroys the joint obligation to all. We decide the question on the authority of the case cited, having no opportunity to investigate the subject more fully.

The witness was sworn.

On the law of the case generally, the court charged the jury, that the essential matter to sustain this action, was proof of negligence in the driver of the stage. It is for this that the defendants are liable, and if this be not established, they are not accountable in this action. When carriages are meeting each other, travelling in opposite directions, the law of the road is, — keep to the right. But this court has heretofore decided, that in passing carriages travelling the same way, he who attempts to pass may do so on either side, being answerable for all consequences resulting from negligence or imprudence on his part, either in the manner of passing or on the side selected for that purpose. He who passes undertakes to go by at his own peril, if the other carriage leaves him road enough; and even when a horse in a gig has balked or stopped on the highway, the driver of a carriage behind, wishing to pass, is bound to stop if there be not road enough left for both carriages. For although every man has a right to pass on the public road, yet he must take reasonable care to exercise that right so as not to injure another. This is not inconsistent with his own right. Humanity can never justify a man for driving over another on the public highway, when by stopping for a reasonable time, or by the use of other reasonable means, all bad consequences might be prevented. If indeed, from the evidence, the jury believed that this was an accident inevitable, or occasioned by the backing, plunging or skittishness of the plaintiff’s horse, they would find for the defendant; but if from that evidence, they believed that the damage was caused by the carelessness or inattention of the driver of the stage, they would find for the plaintiff, and award to him such damages as were commensurate with the injury he had sustained. And further, if they believed the circumstances of the case warranted it, they were at liberty to find exemplary damages for the plaintiff; as, if they believed the life of the plaintiff was endangered at the time of the injury by the gross negligence of the driver, and that the conduct of the driver at that time betrayed a disregard of the ordinary dictates of humanity which require every man to succour his fellow man in distress, and especially when that distress has been caused by his own fault. But whether exemplary damages should or should not be awarded, depended entirely on the view the jury might take of his conduct. The defendants, who are owners of the stage, are answerable in damages as fully for the negligence of the driver whom they employed and retained in their employment after the knowledge of this occurrence, as the driver himself.

MBeth, Rogers and W. II. Rogers, for plaintiff. Wales and Bates, for defendants.

The plaintiff had a verdict for $60.