In Warren v. Anchor Motor Freight, 81 A.2d 321 (Del.Super.Ct. 1951) the Delaware court discussed whether the plaintiff was contributorily negligent because he passed at a railroad crossing which was at the crest of a hill.Summary of this case from Hetherton v. Sears, Roebuck Co.
April 16, 1951.
CAREY, J., sitting.
William Prickett for plaintiff.
Albert L. Simon for defendant.
Action for damages based upon alleged negligence, in which defendant has filed a counter-claim.
Motion to dismiss or to strike certain defenses and for summary judgment as to a part of the counter-claim.
According to the complaint, plaintiff was driving his car east on Maryland Avenue extended in Wilmington. Defendant's truck was also being driven east on the same thoroughfare. At a point near a railroad track, a trolley bus had stopped in the east lane of Maryland Avenue a short distance in front of defendant's truck. The plaintiff overtook the truck and started to pass it and, as he was doing so, the truck pulled from the south lane into the north lane and struck plaintiff's car.
The answer admits the collision between the two vehicles but charges that the accident was due solely to plaintiff's negligence in several respects. Among other counts, it avers that the plaintiff attempted to pass the truck and trolley at a railway grade crossing in violation of Section 92 (c) of the Motor Vehicle Laws and that he attempted to pass the truck when approaching the crest of a grade in violation of Section 92 (b) of the Motor Vehicle Laws.
The plaintiff has moved to dismiss or, in the alternative, to strike these two defenses as being immaterial and irrelevant, and for summary judgment in defendant's counter-claim in so far as it is based upon those two counts.
The pertinent parts of Section 92, section 5630, Revised Code of Delaware 1935 are as follows:
"(b) The driver of a vehicle shall not overtake and pass another vehicle proceeding in the same direction upon the crest of a grade or upon a curve in the highway where the driver's view along the highway is obstructed within a distance of 500 feet.
"(c) The driver of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any railway grade crossing nor at any intersection of highways unless permitted so to do by a traffic or police officer."
Superior Court for New Castle County, No. 573, Civil Action, 1950.
It has frequently been held in Delaware that the violation of a rule of the road such as the ones here involved is negligence per se but that such negligence is not actionable, nor is it available under a plea of contributory negligence, unless it is a proximate cause of damage to another. Lynch v. Lynch, 9 W.W. Harr. 1, 195 A. 799. Ordinarily, whether such negligence is a proximate cause is a jury question but, like most such questions, it should be left to the jury only when there is a dispute of fact or when more than one reasonable inference may be drawn from the proven facts. 38 Am. Jur. 1056, et seq. For example, in Brown v. Schendelman, 4 W.W. Harr. 50, 143 A. 42, the Court held that there was no causal connection between the violation of the ordinance there involved and the injury complained of, and sustained a demurrer to the declaration for that reason. In Lindsay v. Cecchi, 3 Boyce 133, 80 A. 523, 35 L.R.A. ( N.S.) 699, the Supreme Court found that there was no possibility of causal connection between the violation of a cited statute and the injury to the plaintiff, and held that the lower Court was wrong in submitting the case to the jury.
In the present instance, the defendant argues that the matter of proximate cause as applied to these two counts should be left to a jury, but, from the facts as gathered from the complaint and answer, I am unable to perceive any causal relation between the alleged violation of these two sections and the occurrence of the accident. The proximity of the railroad track and the nearness of the crest of a hill are simply of no significance in relation to the occurrence of this collision. In my opinion, it would be error to submit the issue of proximate cause to a jury under these circumstances. Salvitti v. Throppe, 343 Pa. 642, 23 A.2d 445, 138 A.L.R. 842.
The foregoing conclusion answers the substance of defendant's argument and makes it unnecessary to consider certain other contentions made by counsel. Plaintiff's motions will be granted.