DELAWARE COACH CO.
Rehearing Denied Feb. 3, 1950.
[45 Del. 228] William H. Foulk and Herbert L. Cobin, of Wilmington, for defendant below, plaintiff-in-error.
William H. Bennethum and Morton E. Evans (of Marvel & Morford), of Wilmington, for plaintiff below, defendant-in-error.
Before HARRINGTON, Chancellor, RICHARDS, C. J., TERRY, CAREY, LAYTON, JJ., and SEITZ, Vice Chancellor, sitting.
SEITZ, Vice Chancellor, delivering the opinion of the court.
Plaintiff (defendant-in-error) recovered a judgment against the defendant
The drama, insofar as here pertinent, commenced when the plaintiff boarded one of the defendant's north bound electric coaches at Seventh and Market Streets in Wilmington. While the coach was moving slowly and smoothly up Market Street, the plaintiff prepared to seat herself. She then described what took place in the following way: 'A. Why, I hadn't entirely released my hold of that stanchion, that last stanchion, but I was getting ready to turn around to sit down on that seat and before I could get entirely around or let go of the stanchion, I had loosened my grasp, I wasn't holding tightly (at this juncture the witness demonstrated by slapping her hands together). There was no sign of any slowing up, to my knowledge or perception. And just that--[45 Del. 229] putting on the brake as hard as he could put it on. I wondered. And I went to the floor like a ton of bricks.
'Q. Where did you end up? A. I ended on the floor, on my left side, facing the door.
'Q. You didn't fall right at the seat then, you traveled a distance? A. I jerked away from the seat. When you jerk you generally take a step, that you can't stand on your feet; my feet were taken from under me.
'Q. Where did your head finally land up with relation to the door? A. Right in front of the door. I heard a man say, 'Well, I thought she was going through the windshield.' But I landed right in front of the door.
'Q. You landed right in front of the door? A. Yes.'
At another point in her testimony she described the nature of the stop in the following language: 'A. Why, it was a very sudden stop, without any warning whatever or slowing down; it was just (at this juncture the witness demonstrated by slapping her hands together)--I didn't know what happened, until I heard him say just about taking the woman's wheel off.'
Plaintiff testified, that while lying on the floor, she heard the driver of the coach say "I had to do it, I had to do it or I would have taken that woman's wheel off."
Plaintiff said that while she lay on the floor facing towards the door she saw the front part of a car to which the driver presumably referred. It was touching the car ahead and both cars appeared to be roughly parallel to the curb. Plaintiff was referring to the cars in the parking spaces paralleling the curb on the east side of Market Street.
A passenger on the coach, testifying on behalf of plaintiff, said that 'The bus came to a very abrupt stop, just like he put his brakes all the way to the floor.' She testified that she was jarred [45 Del. 230] from her seat, thrown to her feet, and that she wound up against the bar behind the driver of the coach. She testified that she said to the driver "Oh, my, what has happened?", and he said he had to do it to keep from hitting somebody. This same witness also testified that she did not see any car pulling out from the curb.
Plaintiff rested her case after the introduction of the evidence here outlined, plus evidence of her injuries and expenses. Defendant's motion for a directed verdict was denied and defendant then proceeded with its evidence.
The first witness for the defendant was the driver of the coach. He testified that he was proceeding north on Market Street at a speed of between 8-10 miles per hour. He then testified as to what happened as follows: '* * * And when I reached the middle of the block, or about the middle of the block--in other words, between Braunstein's, or rather Bendheim's shoe store--there was an automobile parked on the side, and I saw this wheel attempting to come out and it went out and sort of drifted back again, like it couldn't get out,
to make a second attempt, and the next instant it come out again and I put my foot down on the brake; I had to keep from running into it.'
The same witness was also questioned in the following manner with respect to the car pulling out from the curb:
'Q. As you were approaching up to this point where this car was that moved out, and when you first saw her move out, could you tell anything at all as to whether or not she was--did you think at that time that she was going to move all the way out? A. Well, I thought she was making an attempt to come out. I thought she was trying to get out from the parking place.'
He testified on re-cross examination as follows: 'A. In other words, I tooted my horn twice; I tooted my horn the first time and she ignored it and she didn't look at me and that is when I figured she wasn't paying any attention to me.
[45 Del. 231] 'Q. You tooted the horn when you first saw her when you were eight or ten feet from her, is that right? A. That is right. I saw that wheel move, naturally I thought she was going to stay in there and not come out. The next time she made an attempt to come out, I had to stop.
'Q. When you tooted your horn the first time did you attempt to put your brake on? A. I didn't put it on right then, no, because I wasn't right up to her.'
A passenger on the coach called as a witness for defendant testified that after the coach stopped she saw a 'car extending out into the street, out into the side of the bus.' She also ...