Joseph H. DINEEN, Plaintiff,
CITY AND SUBURBAN CAB COMPANY, Inc., (formerly known as City Cab Company), a corporation of the State of Delaware, Defendant.
Ernest S. Wilson, Jr., and William T. Lynam, III, Wilmington, Del., for plaintiff.
Herbert L. Cobin, of Coxe, Booker, Walls & Cobin, Wilmington, Del., for defendant.
Motion for summary judgment based on plaintiff's affidavit and deposition.
[54 Del. 176] Plaintiff, Joseph H. Dineen, left the drug store at 22nd and Pine Streets in the City of Wilmington with the intention of returning to his home, located at 823 East 26th Street. He walked north on Pine Street to 23rd Street and then turned east on 23rd Street toward Spruce Street.
Plaintiff slowed down approximately 35 feet west of the bus stop which was located on the southwest corner of 23rd and Spruce, and when he was 10 feet from the corner of this intersection, he waited in order to allow a bus to pass him, so that it would not stop for him. The bus turned and traveled south on Spruce Street, the only direction in which it could go because Spruce came to a dead end at this intersection.
When plaintiff was about 9 or 10 feet west of a Delaware Power & Light pole, and where the yellow line of the coach stop was located, he started to step off the curb in order to go in a northeasterly direction across 23rd Street to the park, at an approximate 45~ angle. When he had one foot on the curb and one foot off the curb, he momentarily saw a vehicle on his left, threw up his left hand, and was struck by defendant's cab and thrown against the Delaware Power & Light pole, which was located at or near the intersection, and he then bounded backward and landed on his back on the lawn on the southwest corner of 23rd and Spruce Streets.
Plaintiff's affidavit indicates that at the time he was struck by defendant's cab, it did not have on its headlights or running lights and it was past the hour when motor vehicles were required by law to have lights lighted on the front of their vehicles.  A more exact time appears in plaintiff's deposition, where he states that the accident occurred about 8:30 or 9:00 in the evening of October 4, 1957.
[54 Del. 177] Plaintiff states that there were two women passengers in the cab who were in a hurry to get to their places of employment and that when he saw the cab at a stopped position on Spruce Street after the defendant driver, Bennett, had left the cab to talk with him, he noticed that the words 'City Cab' were on the top of the vehicle and that the dome of the cab was 'lit'.
Plaintiff said that Bennett asked him, 'Are you hurt?'. Plaintiff then states that the cab driver said, 'Come on. I haven't got time to fool with you. I have got a living to make.' The cab driver wrote his name, number and employer on a card, and then departed in order to take the two passengers to their jobs.
Defendant filed a motion for summary judgment contending that plaintiff was contributorily negligent as a matter of law
and/or that the defendant was free of any negligence as a matter of law.
A person crossing a public street of a city is required to make reasonable use of his senses in order to observe an impending danger. If he fails to do so, and is injured by reason of such failure, he is guilty of negligence which will prevent recovery for his injuries. This means that, in the use of his senses, he must act as an ordinary prudent and careful person would have acted under like circumstances. Grier v. Samuel, 4 Boyce 106, 86 A. 209; Hannigan v. Wright, 5 Pennewill 537, 63 A. 234.
A pedestrian must not deliberately enter into danger which proper use of his sight would disclose to him would be impending. A pedestrian must look for the purpose of finding out if it is safe to cross a street. Floyd v. Lipka,51 Del. 487, 1 Storey 487, 148 A.2d ...