Martha Trowell, administratrix of the estate of Allen Thomas Collins, an infant, deceased, sued the Diamond Supply Company, a corporation, and another for the death of plaintiff's intestate as the result of being struck by named defendant's ice truck, driven by co-defendant. After a directed verdict for defendants, plaintiff moved for a new trial. The Superior Court, Carey, J., held that defendant driver was not bound to anticipate that intestate, who was in a safe place on a porch about seven or eight feet from the truck, when the driver left the porch to return to the truck, which was standing on ground obviously used for movement and parking of motor vehicles, would thereafter move into a place of danger near the truck, and was not negligent, as a matter of law, in starting the truck without first taking steps to make sure that intestate could not be hit thereby, in the absence of a showing that the driver knew or should have known that intestate was in danger.
Where an infant is injured in consequence of having placed himself in position of peril, though unable to comprehend and appreciate his danger, person causing injury is not liable for damages, if he could not have observed infant's perilous position and prevented injury by exercising due and reasonable care.
[46 Del. 319] Joseph Donald Craven, Wilmington, for plaintiff.
William Prickett, Wilmington, for defendants.
Before CAREY, J.
Some contradictions exist in the testimony offered by the plaintiff. For purposes of the present motion, the state of facts most favorable to plaintiff will be accepted as true.
The deceased child's mother and stepfather operate a restaurant and gasoline station on the west side of Highway 13. The property is improved with a single building facing east and about forty feet back from the road. The northerly part of the building is used as the family's living quarters and the southerly part is occupied by the restaurant. There is a porch about nine feet wide which extends entirely across the front of the building. The floor of this porch is not more than an inch or two above the level of the ground. Except for a doorway at each end, the porch is fully enclosed. A witness described it as a screen porch, but photographs show the enclosure to be composed of solid boards to a height of perhaps three feet with wire above it. On the date of the accident, there was actually no door in the northern doorway to the porch. Just outside of that doorway, there is a concrete apron or step perhaps a foot wide practically level with the ground. Immediately in front of the porch, that is, to the east thereof, are some gasoline pumps and other paraphernalia incidental to the sale of gas and oil. Between them [46 Del. 320] and the road lies vacant ground. There is other vacant ground on the north and south sides of the building. Judging by the photographs, all of this vacant land is used by cars driving in and out and parking.
Extending out from the north side of the building a few feet west of the porch is a small shed used for storing ice. One witness said this shed is from 15 to 20 feet from the porch but the photographs demonstrate that she must have meant 15 to 20 feet from the doorway which is at the extreme easterly side of the porch.
The defendant Nutt was the driver of the corporate defendant's ice truck, described as a large one. On the day of the accident, he came to the Trowell property to deliver ice. He parked the truck in a position parallel to the north side of the building and perhaps seven or eight feet from it. The rear of the truck was near the ice shed and the driver's cab apparently was nearly opposite the doorway. After putting some ice in the shed, Nutt went into the restaurant to get paid. He then came out and walked across the porch through the northerly doorway. The deceased, a boy three years nine months old, and his brother, about seven years of age, were playing on the porch near this doorway. In going out, Nutt placed his hand on the deceased's head. That act was observed by the witness Mayfield, who was sitting on a sofa in the center of the porch. It was also noticed by the witness Jackson, who was taking care of the children that afternoon and who was at the moment standing in the entrance to the living quarters, or only a few steps away from the children. It happened, however, that she turned and went into the building directly after Nutt left the porch.
Nutt walked around the front end of his truck, got into the cab and started to drive away ‘ speedy’, turning to the right as he did so. In the meantime, after Nutt had left the porch, the deceased child came out to a point about six feet from the doorway and near the truck on its right side somewhere back of its [46 Del. 321] front wheel. He stooped down looking under the truck presumably to watch Nutt's feet. When Nutt turned right as he started away, his right rear wheel struck and killed the child. There was nothing in the evidence to suggest that Nutt saw the deceased after walking past him at or near the porch entrance. It is clear that, from the driver's seat, he could not possibly have seen the child in its stooped position near the truck.
The foregoing statement is believed to be the explanation most favorable to plaintiff which is justified by the evidence. The details of the accident itself are based upon Mayfield's testimony alone. The only other witness called who actually saw it was the child's brother; on cross-examination, he said that the deceased ran off the porch against the back part of the truck after it had started to move forward.
A verdict was directed against the plaintiff because it was felt that no negligence had been proven on the part of the driver, or, in other words, that it had not been shown that Nutt had breached any duty he owed to the deceased. Plaintiff's counsel places some stress upon the fact that Nutt turned ...