Action for death of pedestrian who was struck on highway by defendant's automobile. Defendant moved for summary judgment. The Superior Court, Carey, J., held that where affidavit, depositions and answers to interrogatories did not develop evidence upon which jury could reasonably have found for plaintiff, and all known witnesses had been fully examined and cross-examined and every known fact was in record, defendant was entitled to summary judgment.
[49 Del. 361] Suit for damages arising out of an automobile accident. Motion by defendant for summary judgment based upon the pleadings, affidavits, depositions and answers to interrogatories.
David B. Coxe, Jr., Wilmington, for plaintiff.
Frank J. Miller, Wilmington, for defendant.
The question presented here is whether there is any evidence to warrant a jury in finding that the deceased came to his death as the proximate result of negligence of defendant.
The plaintiff is the widow of Charles McGuire, who was killed in an accident on March 14, 1952, on Route 40 south of Wilmington at a point in front of a motel called Maryland Motor Court. This route is a paved dual highway and is the principal road between Wilmington and Baltimore, Maryland. At this particular place, the northbound section is 18 feet and 10 inches wide and is separated from the southbound lane by a grass covered parkway 35 or 40 feet wide. The road here is straight with a slight upward incline, according to the photographs in evidence.
On the night of the accident, defendant was driving northerly at a speed of about 50 miles per hour on his way from Bainbridge, Maryland, to his home in New Jersey. As he drew near the Maryland Motor Court, he passed another car going in the same direction, and stayed in the left lane for the purpose of passing a third automobile. The latter car was about 15 feet ahead of his, and the other one was about 15 feet behind his, according to his version of the facts, when he suddenly saw a person (later identified as Mr. McGuire) about 2 or 3 feet directly in front of his left headlight. He immediately applied his brakes, but struck McGuire, knocking him over upon the grass to the left. Police officers later found glass from defendant's [49 Del. 362] broken left headlight on the left lane of the road, and testified that the deceased was lying about 16 1/2 feet from this glass in a northwesterly direction and about 15 feet
west of the westerly edge of the northbound lane. The deceased never regained consciousness, after he was struck, so far as is known. The Coroner's report shows that he suffered traumatic shock, internal hemorrhage, compound fracture of both legs, fracture of the left arm, a lump on the left side of his head, rupture of the left kidney, and cuts and abrasions in numerous places.
Defendant fixes the time of impact as about 7:00 P.M. The police received a call concerning it at approximately 7:05 and arrived at the scene at 7:10. All agree that the night was dark and clear, and the road was dry but the grass parkway was wet and soft from previous rains. Both police officers stated that traffic at that time was fairly heavy, and cars were using both lanes on both parts of the highway. No eyewitnesses other than defendant have been found.
In addition to the information stated above, defendant further testified in his deposition that his headlights were on ‘ low beam’ ; that he could see the reflection of lights on the rear of another car from 60 to 80 feet ahead in the right lane, but he could not say whether this reflection came from his own lights or those of the car he was about to pass; that he did not see the deceased until he was about two or three feet from him and does not know which direction deceased came from, nor can he say in which direction deceased was walking or facing, or whether he was walking or standing still; that, in fact, he was not sure the object in front of him was a human being until he stopped the car and ran back; that, upon ascertainment it was a person, he called for help to some people at a service station on the westerly side of the road and ran to the motel on the easterly side and told someone there to call the police; that, at the time of the impact, he was driving in the left lane with his car about equidistant from the center line on his right and the edge of the concrete on his left; that McGuire was on the concrete road two or two and one-half feet from its westerly edge when he first saw [49 Del. 363] him; that as a result of the impact, his left headlight was broken and hanging by its wire, his left front fender, the mirror on the left side and the left front vent were all damaged, and there was a dent in the hood on the left side near the door.
Such is defendant's version of the accident, as contained in his deposition, supplemented by a few statements of the police. It does not conflict in any material respect from his statement to the police shortly after the accident or his answers to plaintiff's interrogatories. Moreover, there is no other ...