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Bennett v. Barber

Supreme Court of Delaware

March 7, 1951

BENNETT
v.
BARBER.

Cordelia D. Barber brought action against Charles F. Bennett to recover for injuries sustained as result of intersectional collision between automobile in which plaintiff was riding as a passenger, and automobile of the defendant. The trial court rendered a judgment for the plaintiff, and the defendant brought error. The Supreme Court, Layton, J., held that evidence sustained finding that defendant was guilty of negligence which was a contributing cause of the accident.

Writ of error dismissed.

Verdict of $1184.40 for broken arm was not excessive, where there were medical bills of $184.40, plaintiff's arm was in cast for seven weeks, and in a partial cast for one week.

Page 364

[46 Del. 134] Writ of Error to the Superior Court, sitting without a jury, as the result of a verdict for damages to Plaintiff for injuries sustained as the result of a collision between automobiles driven by Plaintiff's husband and Defendant.

This is a typical right angle collision case. Plaintiff and her husband were driving east on Grove Street in Delmar, Delaware, searching for U.S. Route 13 at which point they desired to turn left and proceed north to Philadelphia. Plaintiff's husband was driving. Both he and his wife were strangers to Delmar and thought that Route 13 was two streets ahead whereas, in fact, it was the next intersection. There was no stop sign against them and, still thinking that Route 13 lay one block beyond, Plaintiff's husband proceeded into the intersection and across Route 13, at about 15 to 20 miles per hour, when he was struck by Defendant's car proceeding south on U.S. 13. As a result the car in which Plaintiff was riding was careened over against a telegraph pole and her arm broken. Both drivers testified they were proceeding about 20 miles per hour, looked as they approached the intersection, and saw the other's car too late to avoid a collision. The only substantial variation in the testimony is that each accused the other of excessive speed and of colliding with the other.

Everett F. Warrington, and W. Howard Thompson, both of Georgetown, for defendant below, appellant.

James M. Tunnell, Jr., of Tunnell and Tunnell, of Georgetown, for plaintiff below, appellee.

Before WOLCOTT, Chancellor, RICHARDS, C. J., SEITZ, Vice Chancellor, and TERRY, LAYTON and HERRMANN, JJ.

[46 Del. 135] LAYTON, Judge.

At the close of Plaintiff's case and again at the end of the trial Defendant moved for a directed verdict upon the ground that Plaintiff had failed to establish actionable negligence on his part.[1] Defendant has assigned the Trial Court's refusal to grant this motion as his first ground of appeal.

It is not our function to review the record in an effort to determine whether the Plaintiff has established Defendant's negligence by a preponderance of the evidence. The scope of our inquiry is limited solely to a determination whether there was evidence from which it fairly could be found that Defendant was guilty of negligence which was either the, or one of the, contributing causes of this accident.

The rule in this State is that negligence of a driver is not imputed to the passenger. Island Express, Inc., v. Frederick, 5 W.W.Harr. 569, 171 A. 181.Consequently it frequently results that, despite contributory negligence on the part of his own driver, the Guest Passenger can sue the operator of the other machine alone. In such a case the party sued has only one substantial defense, that he was guilty of no negligence. This is such a case.

The Trial Judge apparently found as a fact that there was no stop sign at the intersection of Grove Street with U.S. 13 facing Plaintiff's machine. Indeed, from the evidence, he scarcely could have decided otherwise. This being so, the junction of Grove Street with U.S. 13 was an intersection not governed by any traffic sign or signal and the right of way was subject to Section 97 of the Motor Vehicle Law, which reads as follows:

‘ The operator of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection. When two vehicles enter an intersection at the same time, the operator of the vehicle on the left shall yield the right of way [46 ...


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