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Various Torts Law Briefs III


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									TORTS FOR 10/18/04
BALTIMORE & OHIO RAILROAD CO. V. GOODMAN, US Supreme Court, 1927 History: Widow/administratix of Goodman sued Baltimore/OH Railroad for causing Goodman’s death by running him down at a grade crossing Facts: Goodman was driving a truck eastbound and was killed by a train running southwest across the road at around 60 mph; the line was straight but supposedly Goodman didn’t have a good view beyond a section house and the engine was still obscured by the engine house; he had been driving 10-12 mph, but had cut his rate to 5-6 mph about 40 feet from the crossing; Goodman was familiar w/the crossing and it was daylight Issue: Whether Goodman met the legal standard of duty established for a traveler to look and see. Holding: Judgment reversed Analysis: He knows that he must stop for the train, not the other way around If a driver is not sure, he should get out and look If he relies on not hearing signal, he is at his own risk Standard of conduct  although usually duty of care is left to the jury POKORA V. WABASH RAILWAY CO., US Supreme Court, 1934 History: District Court held he had been guilty of contributory negligence and directed a verdict for the defendant; Circuit Court of Appeals affirmed Facts: Pokora was an ice dealer and was driving to make a drop-off; there was a lot of traffic, so he was trying a depot on the other side of the tracks; he was driving his truck across a railway grade and was struck by a train and injured; he had looked north for approaching trains, but a string of box cars about 5-10 feet from the north line of Edwards St cut off his view of tracks beyond him to the north; he listened and heard nothing, then tried to cross and was hit by a train coming from the north traveling 25-30 mph Issue: Holding: Verdict for defendant—Reversed Analysis: Majority of courts adopt rule that the traveler must look and listen but the duty to stop depends upon the circumstances and upon the judgment of the jury But while a traveler is looking one way, a train could be approaching from another

HETHERTON V. SEARS, ROEBUCK & CO., US Court of Appeals, 3rd Circuit, 1979 History: Hetherton and his wife brought suit alleging Sears was negligent in selling gun/ammo to Fullman and Sears was liable for Hetherton’s injuries Facts: Fullman bought a .22 caliber rifle and cartridges from Sears; six weeks later, he shot Hetherton in the head; Hetherton was an off-duty officer employed as a guard in the Wilmington, DE restaurant; Hetherton was seriously injured In criminal court, Fullman was convicted of attempted 2nd degree murder, attempted robbery, possession of a deadly weapon during the commission of a felony, possession of a deadly weapon by a person prohibited and conspiracy in the 2nd degree; Fullman had previously been convicted of attempted robbery, conspiracy in 2nd degree, and falsely reporting an incident felonies; he wasn’t allowed under DE law to purchase the rifle/cartridges he got from Sears; he lied on form about never being convicted of a felony Issue: Whether a retail store can be held liable when the ammunition it would was used to injure an innocent person in an attempted murder and robbery. Holding: District court reversed Analysis: Ammo was a deadly weapon Sears failure to require two freeholders was negligence b/c section 904 was created for the safety of others Proximate cause to be decided by a jury TELDA V. ELLMAN, Court of Appeals of NY, 1939 History: Jury found accident was due solely to negligence of the driver Facts: Tedla and her bro, Bachek, was hit by a passing car driven by Ellman; Tedla was injured and Bachek was killed; Bachek was deaf-mute and just collected and sold junk for a living  Tedla did the same thing; at the time of the accident, they were collecting junk along the side of the road; it was already dark; Bachek was carrying a latern Issue: Duty established by statute Holding: Judgment in favor of the plaintiffs affirmed Analysis: Where a statute defines standard of care and safeguards required to meet a recognized danger, then no other measure can be applied in determining whether a person has carried out the duty of care imposed by law; failure to observe that is negligence We can assume legislature directed pedestrians to keep to the left of center of the road b/c that would force them to be facing traffic Pedestrian would be responsible for damages if he deviated from the general duty established by statute

BROWN V. SHYNE, Court of Appeals of NY, 1926 History: Plaintiff recovered $10,000 for damages caused by injury Facts: Plaintiff employed defendant to give her chiropractic treatment for a disease/physical condition; defendant had no license, but represented like he was able to diagnose/treat disease, and under Public Health Code, he was guilty of a misdemeanor; plaintiff became paralyzed after nine treatments; she claims paralysis was from treatment Issue: Whether statute was intended to provide against risk of injury by the unskilled or careless practitioner Holding: Judgments for plaintiff reversed and a new trial granted Analysis: Injury could have been caused by lack of skill or care, no better if he had a license and did the same thing; unless plaintiff’s injury was caused by carelessness or lack of skill, failure to obtain license was not connected w/the injury Proof must be given that in treatment, defendant did not exercise the care and skill qualified practitioners would have exercised and that lack of skill and care caused the injury RUSHINK V. GERSTHEIMER, Supreme Court of NY, 1981 History: Plaintiff and defendant motions for summary judgment denied by Supreme Court at Special Term Facts: Gerstheimer drove a car owned by her husband to a pharmacy on the grounds of Middletown Psychiatric Center; after parking car in front of pharmacy, she left it unattended w/keys in ignition; Rushink, a resident patient at the facility, drove away in the vehicle and met his death after hitting a tree Issue: Holding: Order affirmed Analysis: Vehicle and traffic law created to deter theft and injury, but not designed to protect unauthorized users from the consequences of their own actions

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