Appeals, Nos. 9 and 10, May T., 1950, from judgment of Court of Common Pleas of Dauphin County, June T., 1947, No. 731, in case of Pearl M. Limes, in her own right, and as Admrx., Estate of Michael A. DeCavage, Jr., Deceased, v. William V. Keller, Jr., Admr., Estate of Michael A. DeCavage, Sr., Deceased Judgment affirmed.
Arther Berman, with him Joseph Nissley, Livengood & Nissley and Compton & Handler, for appellant.
William S. Bailey, with him John J. Schatt and Storey & Bailey, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE HORACE STERN
On a late September afternoon an automobile in which were seated the owner of the car, Michael A. DeCavage, Sr. and his 15 year old son, Michael A. DeCavage, Jr., was traveling eastward on South Chapel Street in Newark, Delaware, and approaching a four-track crossing of the Pennsylvania Railroad. The sum was shining and the roadbed was dry. A freight train of approximately 75 to 80 cars in length was proceeding southward on the western most track. Immediately after the caboose had cleared the crossing the DeCavage automobile started across the tracks. At that moment an express passenger train, proceeding northward on the third track from the west at a high rate of speed, reached the South Chapel Street crossing after having blown a whistle a quarter or a half mile away. A watchman employed by the Railroad Company was standing on the east side of the crossing with a flag and stop sign in
his hands; he waved the flag and blew his whistle for the automobile to stay back, but it "shot out", was struck by the passenger train, and, according to one of the witnesses, was carried down the track at least three-quarters of a mile; its town occupants were thrown out at a point about a quarter of a mile from the crossing and were instantly killed. Alleging that the car at the time of the accident was being driven by Michael A. DeCavage, Sr., that Michael A. DeCavage, Jr. was a guest passenger, and that the accident was caused by the wilful or wanton conduct of DeCavage, Sr. in the manner in which he operated the car, plaintiff, mother of DeCavage, Jr. and administratrix of his estate, brought suit against the administrator of the estate of DeCavage, Sr. to recover damages resulting from the son's death. The case was tried before a jury, which rendered a verdict for defendant. The court refused plaintiff's motion for a new trial and she now appeals from the judgment entered on the verdict.
We brush aside defendant's contention that it was not shown that DeCavage, Sr. was the owner of the automobile involved in the accident, that he was driving it at the time, and that he and DeCavage, Jr., were the occupants of the automobile and were the persons killed in the accident. Both in the pleadings and at the trial defendant admitted the ownership of the automobile to be in DeCavage, Sr., and, without rehearsing all of the testimony, it is sufficient to say that there was enough circumstantial evidence, even apart from the rebuttable presumption that the owner of the automobile was operating it (Bastian v. Baltimore & Ohio R.R. Co., 144 F. 2d 120, footnote 5, pp. 123, 124), to support plaintiff's claim that it was the father, nor the son, who was driving the car; cf. Flick v. Shimer, Administratrix, 340 Pa. 481, 17 A.2d 332. That the occupants of the car were Michael A. DeCavage, Sr., and Michael A. DeCavage, Jr., and that they were the two persons killed in the accident,
is so certain from all the circumstances that it would be the height of legalism to require more proof of the fact than that which was given at the trial.
The real question in the case was whether the operator, DeCavage, Sr., was guilty of wilful or wanton misconduct in his operation of the car. The law of Delaware, where the accident occurred, provides that "No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his wilful or wanton disregard of the rights of others". 38 Del. Laws, ch. 26, 1; Revised Code of Delaware of 1935, 5713; sec. 175(a). The distinction between wanton disregard of the rights of others and ordinary negligence has been clearly pointed out in several decisions of the Delaware courts, wantonness being defined as including "the elements of consciousness of one's conduct, realization of the probability of injury to another, and disregard of the consequences," whereas the distinguishing characteristic of negligence was said to be "carelessness, thoughtlessness, inattention, inadvertence": Gallegher v. Davis, 37 Del. 380, 183 A. 620. "Wanton conduct, resulting in injury to another,... may be said to be such conduct as exhibits a conscious indifference to consequences in circumstances where probability of harm to another within the circumference of the conduct is reasonably apparent, although harm to such other is not ...