Opinion
C.A. No.: 04A-12-013 SCD.
Submitted: April 19, 2005.
Decided: June 3, 2005.
ORDER
This 3rd day of June, 2005, upon consideration of the briefs submitted in connection with the appeal of this matter from the Court of Common Pleas, it appears:
1. This case arises from a collision between a truck and an automobile. Plaintiff Pringle was backing his truck into his driveway when he was struck by an automobile driven by Albert Guilfoil, Jr. ("defendant"), who is now deceased as a result of unrelated causes. Pringle was southbound on Route 9, a two lane road, at about 10 p.m. on December 30, 1997. Plaintiff drove past the entrance to his driveway on the east side of the road, and then pulled across the road to position himself and commenced backing into his driveway. In so doing, he blocked the road for through traffic traveling northbound. There is a slight hill that crests about 300 feet south of plaintiff's driveway. There were no streetlights in the area. Defendant was traveling northbound. Plaintiff's truck was across a substantial portion of the roadway when the defendant crested the hill. Defendant's car collided with the side of plaintiff's truck.
The co-plaintiff has not appealed from the decision below.
2. This case was first before this court on an appeal from the decision of the Court below regarding comparative negligence. The issue presented in this appeal was deferred last time because a remand was required on other grounds. Plaintiff argues that the allocation of negligence as equal, or 50-50, is not supported by the evidence.
Pringle v. Herbus, 2004 WL 1284209 (Del.Super.) (" Pringle I").
3. From a nonjury case, the appeal is upon both the law and fact. If there is sufficient evidence to support the decision of the trial judge, it must be affirmed. "Only when the findings below are clearly wrong and the doing of justice requires their overturn [is the appellate court] free to make contradictory findings of fact."
Levitt v. Bouvier, 287 A.2d 671, 673. (Del. 1972).
Id.
Id.
4. The proceeding below was a bench trial. As such, it was up to the Judge to determine issues of credibility, and to weigh the evidence. With regard to the allocation of liability, the Court explained in his initial opinion and did not reconsider on remand:
Id.
It is clear that the defendant has a duty to avoid an accident and to, and to not create an emergency situation. But the plaintiff has an equal duty to ensure that at the time that he is backing his vehicle across an oncoming traffic lane, that that backing is done with safety. In this instant, the van for which the plaintiff was using was 17 feet, the roadway, as indicated by the testimony, was only 19 feet, so he was using most of the roadway when he was backing his vehicle.
* * * *
There is testimony that there is some indicia of speed, but I do not find that testimony or that evidence credible.
Pringle I at *1 (internal citation omitted).
5. The record supports the factual findings made by the Court. Plaintiff testified that his vehicle was 17 feet long, that the road was 18 feet wide, and that he was backing straight back into his driveway when the accident occurred. He was unable to express an opinion about the speed of the defendant's car. There was a fact question regarding how much of the 17-foot truck was into the driveway at the time of impact. A passenger in the defendant's car testified that he tried to stop the vehicle before the impact. There is no error of law.
Transcript of trial below, Docket No. 9 of Pringle I, C.A. No. 03A-07-004, p. 18 (hereinafter "Tr. at ___").
Tr. at 32.
Tr. at 41.
Id.
Tr. at 171.
WHEREFORE, the decision of the Court of Common Pleas is AFFIRMED.
IT IS SO ORDERED.