Roberts v. Maryland, Delaware & Virginia Railway Co.

Citations

• 28 Del. 150
• 91 A. 285
• 5 Boyce 150
• 1914 Del. LEXIS 22

Syllabus

<p>1. Railroads—Crossing Accidents—Actions—Declaration.</p> <p>In an action for injuries sustained in a crossing accident, a count alleging that it was defendant’s duty to give due and timely notice and warning of the approach of its trains to the_ crossing by sounding the whistle, and that it failed to perform its duty in this respect, sufficiently negatived the giving of warning other than by blowing the whistle, as it alleged a duty to give warning, a failure to perform such duty, and then particularized such failure, by stating a failure to blow the whistles.</p> <p>2. Railroads—Crossing Accidents—Actions—Declaration.</p> <p>In an action for injuries sustained in a collision at a crossing, which plaintiff approached from the south, a count alleging that it was not possible for the driver of an automobile approaching the crossing or a locomotive from the east either one to see the other until the driver of the automobile had approached within a very few feet of the crossing, was demurrable, since if it was intended to allege that it was impossible for either to see the other when the traveler was approaching from the north the allegation was not pertinent, while if it was intended to allege that this was impossible when the traveler was approaching from the south the defendant was entitled to a definite allegation to this effect.</p> <p>3. Railroads—Crossing Accidents—Liability.</p> <p>The failure of a railroad company to station a flagman at a crossing is evidence to be submitted to the jury upon a proper showing of unusual dangers at the crossing, and to be considered by the jury in determining under all the circumstances whether the company was negligent in respect to giving due and sufficient warning of the approach of trains; but such failure is not negligence per se, as the company may have used other and more appropriate and sufficient means of warning, and hence a count alleging a duty to provide a flagman and a failure to perform such duty was demurrable