Majority
p. 521Frank Gardner vs. Wilmington and Philadelphia Traction Company, a corporation of the State of Delaware. (January 15, 1920.) Conrad and Heisel, J. J., sitting
Headnote
1. Railroads—Count for injury by operation of trolley cars at crossING INSUFFICIENT._ In action for injuries to an occupant of automobile in collision at crossing, count alleging that defendant negligently operated trolley car in a southerly direction on a track ordinarily used for cars traveling in opposite direction causing collision, without alleging that defendant failed to sound gong, or give other suitable warning of approach of car, held not to state cause of action.
2. Railroads—Count for injury at crossing by operation of trolley cars without warning sufficient.
In action for injuries to occupant of automobile in collision at crossing, allegations that defendant negligently operated trolley car in a southerly direction upon the north-bound track, and negligently failed to have a watchman at such crossing or give any other suitable warning of approach of car, causing collision with automobile, held to state cause of action.
L. Irving Handy for plaintiff.
p. 522Superior Court for New Castle County, January Term, 1920. Summons Case, No. 123, November Term, 1919. It is averred, in part, in the body of the first count of the declaration : “* * * That at the time aforesaid the Delaware State Fair was holding its annual exhibition and that great numbers of people were there, and a great number of automobiles were passing to and from the Delaware State Fair Grounds and across the said trolley lines by the Fair Grounds and a great number of trolley cars were being operated there by the said defendant. * * * That the said defendant owned at that place on the said right of way double metal tracks for the operation of its said trolley cars and was in the habit of using its western track for trolley cars going in a southerly direction and its easterly track for trolley cars going in a northerly direction.' That then and there the said defendant had a long line of trolley cars standing on its said westerly track obstructing the view of the automobile driver of the plaintiff, who was approaching said crossing from a westerly direction, but said line of trolley cars were broken and opened for a short space at the point where the public road crossed the said right of way of the defendant. That the said plaintiff approaching, from the west, said crossing in his said automobile and using due care and caution on his part and on the part of the driver of his said automobile came to and entered upon the crossing of the said right of way by and on the public highway. That then and there the defendant negligently and carelessly operated one of its said trolley cars moving the said trolley car in a southerly direction on the said easterly or north-bound track and thereby said trolley car because of defendant’s negligence in moving said trolley car southward on the north-bound, track ran into, collided with, threw over and destroyed the said automobile of the said plaintiff and threw out him, the said plaintiff, on the ground,” etc.
Herbert H. Ward, Jr., (of Ward, Gray and Neary)for defendant.
Action by Frank Gardner against the Wilmington and Philadelphia Traction Company. On demurrer to first and third counts of declaration. Demurrer sustained as to the first and overruled as to the third count.
It was contended for the defendant that the allegation, italicized above, does not state a cause of action; for a trolley company has a right to run its cars in any direction on its own right of way, and the running of a car in a southerly direction on a track which is at other times used for cars running in a northerly direction is not of itself an act of negligence. The plaintiff apparently realized this fact; for in the second count there is added to said allegation the phrase, “and carelessly and negligently failed to sound its gong or to give any other suitable warning of its approach.”
p. 523The corresponding allegation in the third count is: “ That then and there the defendant operated one of its said trolleys car moving the said trolley car in a southerly direction on the said easterly or north bound track and carelessly and negligently failed to have any watchman at said crossing of said public highway or to give any other suitable warning of its approach and thereby said trolley car because of defendant’s said negligence ran into,” etc.
Counsel for plaintiff contended that the moving of the cars in the wrong direction upon the track, behind a blanket of other cars, as alleged in the count, constituted an act of negligence, sufficient to support the cause of action.
Counsel for defendant argued that the allegation in the third count is insufficient to support an action for the reason urged against the first count; and that the allegation is not successfully aided by the addition of the phrase “carelessly and negligently failed to have any watchman at said crossing of said public highway or give any other suitable warning of its approach.” Lofland's Brickyard Crossing Cases, 5 Boyce 150 , 91 Atl. 285 . That there should be set out in the count, in the way indicated by the Brickyard Cases, an allegation of duty to give due warning, followed by an averment of the breach thereof, with sufficient particularity to inform the defendent of the kind of warning it failed to give.
Counsel for plaintiff stated that the third count was drawn with full knowledge of the Lofland’s Brickyard Crossing Cases, supra. He conceded that it is necessary, before alleging a breach, to allege a duty, but he insisted that the count is sufficient and not open to the objection urged against it.
[1,2] We sustain the demurrer to the first count, but we think the third count comes within the ruling in Padley v. Director General of Railroads, ante, 108 Atl. 34 , and we overrule the demurrer to the third count.