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James v. Krause

Superior Court of Delaware, Sussex County

June 30, 1950

JAMES
v.
KRAUSE.

Page 238

[Copyrighted Material Omitted]

Page 239

[45 Del. 406] Howard Bramhall, of Georgetown, for plaintiff.

James M. Tunnell, Jr. (of Tunnell & Tunnell), of Georgetown, for defendant.

TERRY, Judge.

This case was heard by me without a jury. The factual circumstances surrounding the accident are not in substantial dispute; rather, it is the contentions based upon the circumstances that give rise to the questions to be determined.

The plaintiff testified in substance that on August 11, 1949 he was operating his 1949 Plymouth automobile in a northerly direction on Clark Street; that Clark Street is paved, has surfaced shoulders on the east and west sides thereof extending to the respective curbs; that he had proceeded north on said street to a point opposite the residence of one O'Neal when he heard O'Neal who was sitting on his front porch call to him, whereupon he slowed his automobile and brought it to a stop near the curb on the east [45 Del. 407] side of said street at a point approximately one hundred feet north of the O'Neal residence. He then turned around in his seat, looked back down the street through the rear window of his automobile, and not seeing any pedestrians or traffic travelling in his direction turned back and, looking into his rear view mirror as means of observation, commenced to back his automobile in a southerly direction down said street and along the curb thereof to a point opposite the residence of O'Neal; that after he had backed a distance of approximately fifty feet the right rear of his automobile was run into and struck by the left rear of a truck, which at the time was being backed by the defendant onto and upon Clark Street from a driveway on the east side thereof.

The defendant testified in substance that he was standing near the cab of his truck, which at the time was parked in a driveway a few feet from the east curb of Clark Street; that he saw the plaintiff pass the driveway going in a northerly direction; that immediately before entering the cab to back his truck out upon Clark Street he looked only to the south, the direction from which traffic travelling north on said street would proceed; that not expecting the plaintiff to stop his automobile and commence a backing operation, and not seeing any traffic travelling north as indicated, he commenced to back his truck out upon said street; that after entering the street, a distance of approximately three feet, the left rear end of his truck was run into and struck by the right rear end of the plaintiff's automobile, which at the time was being backed by the plaintiff.

It is conceded by both parties that the area immediately surrounding the scene of the collision was open to the clear view of each, but that neither party saw the vehicle of the other until after the impact had taken place. It is further conceded that neither party sounded his horn or gave any signal whatsoever indicating his course of operation.

Predicated upon the foregoing circumstances the respective [45 Del. 408] parties charge each other with the same violations of duty which they contend resulted in a negligent course of operation, and, as such was the proximate cause of the collision. The violations are----

1. Not keeping a proper lookout.

2. Not sounding his horn or giving other audible or adequate warning of his backing operation.

Page 240

3. Last clear chance of avoiding the collision.

The plaintiff contends that by reason of the alleged negligence of the defendant judgment should be rendered in his favor in the amount of $200, which represents the damages to his automobile, arrived at by deducting the fair market value of said automobile immediately ...


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