Tritsch v. Crescent Wharf & Warehouse Co.

FORD, J.

The defendant has appealed from a judgment for damages for personal injuries sustained by the plaintiff. The sole question presented is whether it was error to instruct the jury on the doctrine of last clear chance.

There was evidence of the following facts. On the day of

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the accident the plaintiff was employed as a marine clerk by a company known as Transmarine. He was working in a warehouse at the docks in Wilmington. Observing one of the defendant’s lift drivers backing a small fork-lift vehicle (known as a lift or jitney) into the warehouse, the plaintiff asked him if he was assigned to work at the hatch at which the plaintiff was stationed. Upon receiving an answer that he was, the plaintiff told him to go to a particular place on the premises to pick up cargo and take it to the hatch. There was a great amount of noise during this time. The driver indicated that he did not hear what the plaintiff had said. The plaintiff stepped closer to the vehicle and put his left foot on the left front wheel of the vehicle “to get close to his ear.” The plaintiff’s right foot remained on the floor and he was then about three feet away from the driver. While the driver was looking directly at him, the plaintiff again told him to pick up the cargo. Thereupon the driver said, “All right,” turned his head to the right and, without giving a warning, immediately moved the vehicle backward. When such movement started, both of the plaintiff’s hands were on the vehicle and his left foot was still on the wheel. The plaintiff did not have time in which to take his foot and hands off the vehicle and his left foot was caught under the heavy steel plate which was over the wheel. He sustained a severe injury.

Pictures were received in evidence in which the plaintiff had posed for the purpose of showing his position with respect to the vehicle before it was moved backward. From those pictures the inference could reasonably be drawn that a person in the driver’s situation could have observed not only the position of the plaintiff’s hands but that the plaintiff’s left leg was off the ground and that it appeared that his left foot was resting on or against some part of the vehicle in the vicinity of the left front wheel.

No contention is made by the defendant that the instruction given to the jury by the trial court did not contain a correct statement of the doctrine of last clear chance as set forth in