Edwin L. LORD, Defendant Below, Plaintiff in Error.
Noble POORE, Plaintiff Below, Defendant in Error.
Action for personal injuries sustained in automobile collision. The Superior Court, Kent County, entered judgment for plaintiff. Defendant appealed. The Supreme Court, Southerland, C. J., held that where plaintiff had gone to rear of automobile which was parked at night without lights on right side of road, and he was unaware of approach of defendant's automobile, running without lights on wrong side of road, plaintiff had been in position of helpless peril and defendant had had clear chance to avoid collision, and issue of last clear chance was properly submitted to jury.
[48 Del. 596] Everett F. Warrington, Georgetown, for defendant below, plaintiff in error.
James L. Latchum, of Berl Potter & Anderson, Wilmington, for plaintiff below, defendant in error.
SOUTHERLAND, C. J., BRAMHALL, J., and SEITZ, Chancellor, sitting.
SOUTHERLAND, Chief Justice.
In the court below Noble Poore, the plaintiff, recovered judgment against Edwin L. Lord, the defendant, for injuries suffered in a motor vehicle collision. Lord appeals. The principal question is whether the evidence justified the court below in submitting to the jury the issue of ‘ last clear chance’ . Other errors are also asserted.
The facts hereinafter set forth are undisputed, except where conflict is noted.
On an evening in August, 1952, Poore and Arthur Boyce, a friend, left Milford, Delaware, in Poore's automobile to take their dogs out for exercise. They stopped at a point on an unimproved road some distance from Milford. The road has a slight crown, and on either side is a low bank about eighteen inches high. Poore's car was parked on the right (or westerly) side of the road, headed southerly toward Milford. The lights were turned out and were not turned on at the time of the collision, or for some time before. This was a violation of the motor vehicle laws.
Plaintiff's evidence tended to show that on parking the car he left a clear space of twenty feet between his car and the left-hand side of the road, as required by law. Defendant's evidence was that the clear space was only eighteen feet.
At the place where the car was parked there were open fields on both sides of the road. The road was straight. It was a clear, bright, moonlight night. The moon was two days past the full and had risen about quarter past nine o'clock.
At about 11:45 p.m. Poore and Boyce called the dogs and made ready to go home. Poore went to the rear of his car to put one of the dogs into the trunk compartment.
Shortly before this time Lord's car had appeared on the road, headed north. It had stopped some distance away to the
[48 Del. 598] south. Its lights were then turned off. Soon thereafter Lord started his car again and proceeded north. In violation of the motor vehicle laws he was driving without lights. Nevertheless, Boyce, who was sitting in the front seat of Poore's car, could see Lord's car plainly as it approached. Lord continued on and crashed into the left front of Poore's car, forcing it back against Poore, who was behind it. Poore was knocked down and seriously injured, and his automobile was badly damaged. There was evidence that Lord was driving at a rate of forty to forty-five miles an hour, and was driving on the wrong ...