[47 Del. 141] Joseph A. L. Errigo, John M. Bader, Wilmington, for plaintiff.
William Prickett, Wilmington, for defendant.
This was an accident case. At the conclusion of plaintiff's evidence, I directed a nonsuit. A motion for new trial was filed and argued.
[47 Del. 142] Because the defendant was not obliged to put in his defense, we are limited to the following meager facts established by plaintiff.
Plaintiff was riding as a passenger on a motorcycle driven by one Farone. Both Farone and plaintiff were minors, the former having no driver's license. Farone was operating his machine south on Union Street in the City of Wilmington. The only evidence of his speed is that it was from fifteen to twenty miles per hour. At the intersection of Third Street with Union Street, the motorcycle was struck by defendant's truck proceeding west on Third Street. There was a stop sign against defendant at this intersection. There is no evidence that defendant did not stop at this stop sign. The point of impact was several feet to the right of the imaginary center line of Union Street in the intersection. Neither plaintiff nor Farone saw defendant's truck until a split second prior to the collision. Union Street is forty feet wide and Third Street but twenty at that point.
Upon these facts, defendant moved for a nonsuit. I granted the motion upon the ground that plaintiff had failed to make out a prima facie case of negligence. Plaintiff has moved for a new trial upon the theory that I erred in holding that the circumstances were not such as to take the case out of the realm of conjecture and within the field of legitimate inference from established facts.
Plaintiff charged defendant with two specific acts of negligence, viz.: Failure to keep a proper lookout and with violating Section 602 of the Ordinances of the City of Wilmington which provides:
'The driver of a vehicle or coach who has stopped or slowed down as required by these Rules and Regulations at the intersection with a 'Boulevard' or 'Through Traffic' street, or in obedience to a 'stop' or 'slow' sign at any intersection, shall yield to other vehicles and coaches within the intersection or approaching so closely in the intersecting street as to constitute an immediate hazard, but said driver [47 Del. 143] having so yielded may proceed, and other vehicles and coaches approaching the intersection on the intersecting street shall yield to the vehicle or coach so proceeding onto or crossing the intersecting street.'
Whether or not a plaintiff has established a prima facie case for a jury is, in a close case like this, frequently difficult to determine. Courts are more inclined in cases of doubt to send the case to the jury. Volume 65, C.J.S., Negligence, § 243, says this:
'Direct or positive evidence is not, however, necessary, but defendant's negligence may be established by indirect or circumstantial evidence and by the proof of facts from which negligence may reasonably be inferred, or, as stated by other authorities on the question, satisfying reasonable minds thereof. The determination of whether negligence may reasonably be inferred from the evidence depends on the particular facts of each case. While no particular fact or circumstance proved may establish or warrant the inference of negligence, when all of the facts and circumstances are considered as a whole, a reasonable inference of negligence may be drawn.
'The facts from which the inference of negligence may be drawn must be proved and cannot themselves be inferred or presumed.
'The negligence of defendant must be established with reasonable certainty. The facts must be of such a nature and so related to each other that the inference contended for is the more probable or reasonable to be drawn therefrom. An inference of negligence may not be based on mere surmise, conjecture, guess, speculation, or probability.
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'Prima facie case or ...