Page images
PDF
EPUB

only to the extent necessary to control the disposition of the property." Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.

credit to the judgment of that court is gov. erned and limited by the scope and character of that judgment. Being a judgment [7] When a suit is founded upon such quasi in rem, its sole purpose and effect process and is not affected by the defend- was to award the oil company a right of ant's subsequent appearance and the con- condemnation against the property attachsequent change of its character from an ac-ed, and upon all of the authorities it is not tion in rem to an action in personam with all the qualities and characteristics of a personal action begun by personal service (Wells v. Shreve's Adm'r, 2 Houst. 329, 370), and when it retains to the end its na⇒ ture of an ex parte proceeding in rem, any judgment rendered therein is a judgment quasi in rem, and being an adjudication upon the status of the particular res of the action (2 Smith's Leading Cases, 430), amounts only to a judgment of condemnation against the thing attached.

Such a judgment, while final and conclusive as to the right, title and judicial disposition of the property attached (Melhop v. Doane, 31 Iowa, 397, 7 Am. Rep. 147; Woodruff v. Taylor, 20 Vt. 65; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165, 30 L. Ed. 372; 2 Smith's Leading Cases 430), is not personally binding upon the defendant, deprives him of none of his rights and leaves him in undisturbed possession of all of his property (save that attached and particularly subjected to the judgment), to be by him used or employed in any manner in which he could have lawfully used or employed them before the proceeding by attachment was begun (Earthman's Adm'r v. Jones, 2 Yerg. [Tenn.] 484; Bliss v. Heasty, 61 Ill. 338; Fitch v. Huntington, 125 Wis. 204, 102 N. W. 1066).

such a judgment as can be the foundation of a personal action to which the courts of another state are bound to give full faith and credit. For the same reason, when such a judgment is pleaded as an adjudication that precludes the party against whom it was rendered from further proceeding in another action respecting the same subject matter, it possesses as evidence no greater force and is entitled to no greater credit than if offered as the foundation of a personal action.

The demurrer is sustained.

(3 Boyce, 235)

RICCIO v. PEOPLE'S RY. CO. (Superior Court of Delaware. New Castle.

March 21, 1912.) 1. STREET RAILROADS (§ 85*)-RIGHT TO USE

STREET.

The rights of a street car company and of a pedestrian to use the street must be exmanner, so as not to unreasonably interfere ercised by each in a reasonable and careful with the rights of the other.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. 88 193, 195; Dec. Dig. § 85.*]

2. STREET RAILROADS (§ 93*) — INJURIES NEGLIGENCE.

A pedestrian cannot recover for injuries by being struck by a street car, unless the company was guilty of negligence.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*]

3. NEGLIGENCE (§ 1*)-DEFINITION.

Negligence is the failure to use such care as a reasonably prudent person would exercise under similar circumstances.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.*

For other definitions, see Words and Phrases. vol. 5, pp. 4743-4763; vol. 8, pp. 77297731.]

STREET RAILROADS (§ 112*)-NEGLIGENCE

-RES IPSA LOQUITUR.

The mere fact that a pedestrian was struck by a street car does not, of itself, raise the presumption of negligence.

One of the property rights claimed by the plaintiff in this action, trading as the machine company, is a chose in action or a right to recover from the defendant oil company for its alleged failure to perform its undertaking in a contract made between them. If the precise question which the plaintiff here submits for determination has before or elsewhere been adjudicated in an action between the same parties, in which the plaintiff, trading as the machine company, had been personally served with pro-4. cess or had voluntarily appeared, then by the decision there rendered and by every issue thereby determined, the defendant therein, trading as the machine company, is bound in this action, and to that decision this court is compelled by the fourth article of the federal Constitution to give full 5. NEGLIGENCE (§ 121*)-BURDEN OF Proof. The burden of proving negligence is upon faith and credit. As the judgment plead-plaintiff. ed in this action, however, shows that the [Ed. Note.-For other cases, see Negligence, jurisdiction of the Tennessee court in the Cent. Dig. §§ 217-220, 224-228, 271; Dec. case there instituted, was limited to the Dig. § 121.*] particular property attached and did not extend personally to the defendant trading as the machine company, or affect his general rights or other property, the extent to which this court is bound to give faith and

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 227, 228; Dec. Dig. § 112,*]

6. STREET RAILROADS (§ 79*) - INJURIES NEGLIGENCE-BY EMPLOYER.

Negligence of a motorman in running a street car is imputable to the company.

[Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 79.*]

7. STREET RAILROADS (§ 81*) — INJURIES— NEGLIGENCE-DUTY OF MOTORMAN.

A motorman must use reasonable diligence, depending upon the particular circumstances, to prevent an accident, and his failure to do so is negligence.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 172-177; Dec. Dig. 8 81.*]

8. STREET RAILROADS (§§ 93, 98*)-INJURIES TO PEDESTRIAN-NEGLIGENCE.

A motorman and pedestrian each could assume that the other would act as a reasonably prudent person until the contrary appeared.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 195-200, 204-209; Dec. Dig. § 93, 98.*]

9. STREET RAILROADS (§ 93*)-INJURIES.

Increased danger of a street car striking a pedestrian, in view of the particular circum stances, requires an increase of diligence commensurate with the danger.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. & 93.*1

10. STREET RAILROADS (8 101*)-INJURIESCONTRIBUTORY NEGLIGENCE.

A pedestrian would be guilty of contributory negligence, barring recovery, if struck by a street car because of his own negligence, or of the concurring negligence of himself and its employés.

[Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 101.*]

11. STREET RAILROADS (§ 98*)-INJURIES— CONTRIBUTORY NEGLIGENCE.

A pedestrian near street car tracks must use reasonable care to discover and avoid approaching cars, and is negligent if he fails to use his senses so as to avoid injury.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 209-216; Dec. Dig. 8 98.*]

12. STREET RAILROADS (8 98*)-INJURIESINEVITABLE ACCIDENT.

A pedestrian, who moved from a position of safety near a street car track so suddenly that it was impossible to stop the car before striking him, cannot recover for his injury.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 204-209; Dec. Dig. § 98.*]

13. STREET RAILROADS (§ 103*)-INJURIESCONTRIBUTORY NEGLIGENCE-LAST CLEAR CHANCE.

Though a pedestrian negligently stood near a street car track in a position of danger at the time he was struck, if the motorman by

the exercise of reasonable care could have seen him in time to have avoided the accident, he was negligent if he failed to do so.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 219; Dec. Dig. § 103.*] 14. STREET RAILROADS (§ 98*)-NEGLIGENCE. If street car employés were not exercising reasonable care when a pedestrian was struck, resulting in his being struck by the car so suddenly that he placed himself in a position of peril without his own fault, he could recover for resulting injuries.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 204-209; Dec. Dig. § 98.*]

15. STREET RAILROADS (§ 98*)-INJURIESCONTRIBUTORY NEGLIGENCE.

If street car employés exercise due care in running the car upon approaching a pedestrian, and he in stooping placed a part of his body against the side of the car, so as to be

struck or otherwise come in contact with it, the company would not be liable for resulting injuries.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 204-209; Dec. Dig. § 98.*]

16. EVIDENCE (§ 586*) - WEIGHT OF EVI

DENCE-POSITIVE EVIDENCE.

Positive testimony is entitled to greater weight than negative testimony, especially if the latter be not accompanied by circumstances showing an attentive attitude by the witness.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2432-2435; Dec. Dig. § 586.*1 17. TRIAL (§ 306*)-DUTY OF JURY-WEIGHING EVIDENCE.

It is the duty of the jury to reconcile conflicting evidence, if possible, and, if not, to give credence to the testimony of those witnesses who under the circumstances appear most trustworthy, considering their opportunities for knowing the things testified to, as well their demeanor, intelligence, and other indicia of truthfulness.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 731, 742; Dec. Dig. § 306.*] 18. NEGLIGENCE (§ 134*)-WEIGHT. action for the party in whose favor the preThe jury should find in a personal injury ponderance or greater weight of the evi

dence is.

Cent. Dig. 88 267-270, 272, 273; Dec. Dig. § [Ed. Note. For other cases, see Negligence, 134.*]

19. DAMAGES (§ 95*) – MEASURE-PERSONAL INJURIES.

Plaintiff, in an action for personal injuries, can recover such sum as will reasonably. compensate him for resulting injuries, including past pain and such suffering as may result in the future, as well as for loss of wages, medical expenses, and reasonable compensation for permanent impairment of future earning ability, if any.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 222-229; Dec. Dig. § 95.*]

Action by Frangesco Riccio against the People's Railway Company. Verdict for plaintiff.

Argued before BOYCE and CONRAD, JJ. Leonard E. Wales, for plaintiff. Robert H. Richards, for defendant.

Action on the case (No. 61, April term, 1911) to recover damages for personal injuries to the plaintiff, alleged to have been occasioned by the negligence of the defendant company in operating its cars on Second street, between Adams and Monroe streets, in the city of Wilmington, on the 4th day of May, A. D. 1911.

At the trial, when the plaintiff had rested, counsel for defendant moved for a nonsuit upon the ground that no negligence had been proved on the part of the defendant, and contended that there was no evidence to support any of the allegations of the five counts of the plaintiff's declaration; that the only allegation with respect to which any evidence had been introduced was the alle

gation of failure to give the plaintiff proper warning of the approach of the car. Upon that point the plaintiff and six witnesses

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

gave testimony that they did not hear the motorman ring the bell or give any warning or signal of the approach of the car; but none of them, however, testified positively that no warning was given.

Mr. Wales, for plaintiff, contended that the testimony of the witnesses upon the point mentioned was sufficient to go to the jury, and furthermore that there was testimony showing that the plaintiff was close enough to the track to be hit and knocked down by the car, and was, therefore, in a position of danger; and the evidence to the effect that the car did not stop until after the plaintiff was hit was a matter to be submitted to the jury to decide whether or not the servants of the defendant were negligent in colliding with the plaintiff.

The stenographic report of the testimony of the several witnesses upon the point whether warning of the approach of the car by bell was given disclosed that the contention of counsel for the defendant as to the character of said testimony was correct, none of the witnesses testifying positively that the bell was not rung.

BOYCE, J. (delivering the opinion of the court). We have considered the question before the court as carefully and fully as we could in the limited time we have had; and our conclusion is that in view of the proximity of the several witnesses to the scene of the accident, we think the weight and value of their testimony, respecting any warning of the approach of the car to the place of the accident should be left to the jury; and we decline to grant the nonsuit.

BOYCE, J. (charging the jury). Gentlemen of the jury: This action was brought by Frangesco Riccio, the plaintiff, against the People's Railway Company, the defendant, to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant company, in operating its cars on Second street, between Adams and Monroe streets, in this city, on the 4th day of May, A. D. 1911.

The plaintiff claims that on the day of the alleged accident, he, with other employés of the Wilmington Gas Company was engaged in laying a gas pipe on the north side of the tracks of the defendant, in said Second street near Adams street; that he was at and immediately before the accident working at a tool box, about four feet away from the northerly rail of the defendant company; that he did not hear the approach of the car or any warning of its approach, either by bell or otherwise; and that he was negligently struck by a car of the defendant company moving in an easterly direction.

ants were in the exercise of due and proper caution; and that the injuries complained of were not caused by the negligence of the servants of the company, but were caused solely by the negligence of the plaintiff in coming in contact with the car without the fault or negligence of the servants of the company, and the defendant denies any and all liability for the alleged injuries.

[1] West Second street is a public street of the city of Wilmington. The defendant company has a right to use said street for the operation of its railway thereon. And the plaintiff had the right to use the said street for the ordinary purposes of a public highway, including the business in which he was engaged, exercised in a reasonably careful and cautious manner. The right of each must be exercised with due regard to the right of the other, and the right of each must be exercised in a reasonable and careful manner so as not unreasonably to abridge or interfere with the right of the other. Dungan v. Wil. City Ry. Co., 4 Pennewill, 461, 58 Atl. 868.

The defendant company of necessity, in the operation of its cars, could only use those parts of the street covered by their

tracks within fixed limits, and for such purpose it had a right to use the said street at the place and time of the accident in common with other travelers and persons who saw fit to use it in any lawful manner.

[2, 3] There can be no recovery in this case unless the injury to the plaintiff was occasioned by the negligence of the defendant company. Negligence is the failure to use such care as a reasonably prudent person would exercise under similar circumstances.

[4] The mere fact of an accident by which an injury is sustained, if not within the control of the defendant, does not, in itself, raise a presumption of negligence. Queen Anne's R. R. v. Reed, 5 Pennewill, 231, 59 Atl. 860, 119 Am. St. Rep. 301.

[5, 6] The burden of proving negligence, as attributable to the defendant, rests always upon the plaintiff. Negligence on the part of the motorman, if shown to the satisfaction of the jury, would be the negligence of the defendant.

Your inquiry in this case, under the evidence, is narrowed to the questions whether the injuries complained of were caused by the negligence of the servants in charge of the car of the defendant in not giving due and proper warning of the approach of the car by bell or otherwise, and whether the servants were at and immediately before the accident in the exercise of due and reasonable care and caution.

[7] It is the duty of the motorman in the The defendant claims that its servants management of his car to use reasonable diligave timely warning by bell of the approach gence to prevent accident and his failure to of its car before and after crossing Adams do so would constitute negligence. The destreet; that the car was moving at a mod-gree of diligence required depends upon the

[8, 9] The motorinan of the car and the the defendant would not in such event be plaintiff each had the right to presume that guilty of negligence and the plaintiff could the other would act as a reasonable person not recover for his injuries received in conunder all the circumstances, until the con- sequence thereof. trary appeared. If there exists an increase of danger by reason of the particular circumstances, an increase of diligence commensurate with the danger is required of both.

[10] If the injury complained of was occasioned by the negligence of the plaintiff, or by the concurrent negligence of both the plaintiff and the servants of defendant, in that case the plaintiff would be guilty of contributory negligence and could not recover.

[11] A pedestrian who is in close proximity to the tracks of a street railway company upon which cars are running is bound to the exercise of a reasonable use of his senses to discover and avoid approaching cars, and if he fails to exercise such use of his senses and as a result thereof is injured, he is guilty of contributory negligence, and if such negligence was the proximate cause of his injury, he cannot recover.

You have the testimony of witnesses who say that they did hear a warning given of the approach of the car, and the testimony of witnesses who say that they did not hear a warning given.

[16] Positive testimony is entitled to greater weight than negative testimony, especially if the latter should be unaccompanied by facts and circumstances showing an attentive attitude of the witnesses respecting the matter to which they testified. Whether the motorman did or did not give warning of the approach of the car, you should determine from a preponderance of the evidence, under all the facts and circumstances before you respecting the question.

[17, 18] Where the testimony is conflicting, it is the duty of the jury to reconcile it, if they can; if they cannot, they should give credit to the testimony of those witnesses who under all the circumstances appear to them to be most entitled to credit, taking into consideration the opportunities and advantages of each for seeing, observing and knowing the things of which they testify, as well as their apparent fairness, intelligence and any other element which may fair6ly test the truthfulness and accuracy of each. And your verdict should be for that party

[12] If the plaintiff moved from a position of safety to a position of danger near or upon the track of the railway on which the defendant's car was running so suddenly as to make it impossible for defendant to stop its car before the collision, the defendant cannot be held liable for the resulting injury to plaintiff. Heinel v. People's Rwy. Co., Pennewill, 428, 67 Atl. 173.

er weight of the testimony. Hearn et al. v. Railway Co., 1 Boyce, 271, 280, 76 Atl. 629.

[13] If the plaintiff was negligently stand-in whose favor is the preponderance or greating near the defendant's track, in a position of danger, at and before, the time of the accident, yet if the motorman saw, or by the reasonable use of his senses could have seen, the plaintiff standing in a dangerous position, in time to stop the car and avoid the accident, it was his duty to do so, and if he failed to do so, the company would be liable. Heinel v. Railway Co., supra.

[14] If the jury should find that the servants of the defendant were not at the time of the accident in the exercise of reasonable care and caution, and that by reason thereof the plaintiff suddenly and without time or opportunity for reflection placed himself in a position of peril, and without fault or negligence on his part, operating at the time of the accident, he would be entitled to recover.

[15] If the jury should believe from the evidence that the servants of the defendant approached the plaintiff with the car in the exercise of due care and caution, and after reaching the place where the plaintiff was working, or after a part of the car had passed him, the plaintiff either by stooping pro

[19] If you should find for the plaintiff, your verdict should be for such sum as will reasonably compensate him for his injuries resulting from the accident, including therein his pain and suffering in the past, and such as may come to him in the future from his injuries, also for loss of wages, expenses for medical attendance and other necessary expenses in seeking to cure himself or treating his injuries, and reasonable compensation for any permanent impairment of ability to earn a living in the future, if any is disclosed by the evidence. White, v. Railway Co., 6 Pennewill, 105, 115, 63 Atl. 931. Verdict for plaintiff.

(82 N. J. L. 246) CITY OF CAMDEN v. PUBLIC SERVICE RY. CO.

(Supreme Court of New Jersey. March 14, 1912.)

(Syllabus by the Court.)

truded a portion of his body against the 1. MANDAMUS (§ 133*)-SUBJECTS OF RELIEF

side of the car and was thus struck and pushed or pulled down by the car, or that he stepped backward or otherwise moved so that he came in contact with the side of the car and was thus pushed down and injured,

- ACTS OF CORPORATION - STREET RAILROAD.

An ordinance passed by city council of a street railroad company to lay and operate Camden, July 26, 1894, granting permission to a street railroad along certain streets of the

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

[ocr errors]

city, which was accepted by the company, and which contains a provision that "all cars shall stop at street crossings clear of said crossings on signal to let off and take on passengers," is a legislative act touching a public duty; and the public duty thus imposed and assumed with respect to the operation of passenger cars may be enforced by mandamus.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. 268; Dec. Dig. § 133.*]

2. STREET Railroads (§ 67*)-REGULATIONSCONSTRUCTION.

The ordinance of the city of Camden, granting permission to the Camden Horse Railroad Company to lay and operate a street railroad along certain streets of the city, contains a section declaring "that the provisions of this ordinance shall apply to and regulate the use of the streets above mentioned and all other streets of the city of Camden which are now or hereafter may be used by the said Camden Horse Railroad Company." Held, that a regulation as to the manner in which the company shall exercise its franchise, contained in section 5 of the ordinance, applies to the exercise of such franchise upon all streets now within the limits of the city.

1003, the relator abandons so much of its case as relates to transfers.

It is admitted that the Public Service Railway Company is operating a street railroad system over and through the streets of the city of Camden by virtue of the franchises given by the city to the Camden Horse Railroad Company. It is also admitted that the company is operating "special" or "club" cars from Camden to Moorestown and return, which cars run over and through the streets of the city of Camden, passing many of the street crossings without stopping for the purpose of letting off and taking on passengers. These cars make only three stops within the limits of the city of Camden. [1] The relator claims that the right to compel the company to stop its cars, including the "special" or "club" cars, at all street crossings to let off and take on passengers arises from an ordinance passed by city council on July 26, 1894, which ordinance

[Ed. Note.-For other cases, see Street Rail-authorized the Camden Horse Railroad Comroads, Cent. Dig. §§ 146, 147; Dec. Dig. § 67.*] 3. STREET RAILROADS (§ 70*)-REGULATIONS -CONSTRUCTION.

The ordinance of the city of Camden, granting permission to the Camden Horse Railroad Company to lay and operate a street railroad along certain streets of the city, contains a provision that "all cars shall stop at street crossings clear of such crossings on signal to let off and take on passengers." Held, that such provision applies to the operation, within the city limits, of so-called "club" or "special" cars, operated from the "ferry" in Camden to Moorestown and return, and intended for the accommodation of the general public.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. 88 1472-149; Dec. Dig. 8 70.*]

pany to lay, maintain, and operate a street railroad system in and along certain streets of the city of Camden, and provided, in section 5, that "all cars shall stop at street crossings clear of said crossings on signal to let off and take on passengers," and which ordinance was duly accepted by the Camden Horse Railroad Company.

The question to be determined is whether such ordinance is a legislative act touching a public duty, to which acceptance by the street railway company lent the added force of a contract, or whether the rights it created were essentially private, and the efficacy of the ordinance was derived wholly from the assent of the railway company thereto. If the former, then, under the decisions in Rutherford v. Hudson River Traction Company, 73 N. J. Law, 227, 63 Atl. 84, and Pleasantville v. Atlantic City Traction Co., 75 N. J. Law, 279, 68 Atl. 60, it may be enforced by mandamus. If the latter, then, under the decision in Newark v. North Jersey St. Ry. Co., 73 N. J. Law, 265, 62 Atl. E. G. C. Bleakley, for relator. E. A. Arm- 1003, the city cannot enforce the ordinance strong, for respondent.

Writ

Rule to show cause by the City of Camden why a writ of mandamus should not issue to the Public Service Railway Company. of peremptory mandamus awarded. See, also, 82 Atl. 609. Argued November TRENCHARD and KALISCH, JJ.

term, 1911, before

by mandamus.

It will be observed that the duty to stop at street crossings to receive and discharge passengers differs from the duty to give transfers. It is not essential to the operation of a street railway and the use of its franchise that it issue transfers. It only issues them when it has agreed to so do By accepting an ordinance requiring their issue. Its liability under such an ordinance is therefore purely contractual, and the rights arising therefrom are of a private nature. Newark v. North Jersey St. Ry. Co., 73 N. J. Law, 265, 62 Atl. 1003. But the duty of stopping cars to let off and take on passengers is a duty arising from the charter of the street railway company. It cannot operate its line and comply with its charter, unless it stops its cars. The ordi

TRENCHARD, J. The city of Camden has a rule requiring the Public Service Railway Company to show cause why a writ of mandamus should not issue, commanding the company to stop all its cars operated over and through the streets and avenues of the city of Camden, at all street crossings in the city, to let off and take on passengers, and commanding the company to provide transfers over its branches in the limits of the city of Camden, without extra charge, and to accept such transfers as fares on all its cars operated over and through the streets and avenues of the city. In view of the decision of this court in Newark v. North Jersey St. Ry. Co., 73 N. J. Law, 265, 62 Atl.

« PreviousContinue »