Bierczynski v. Rogers

Opinion by: HERRMANN, J.

This appeal involves an automobile accident in which the plaintiffs claim that the defendant motorists were racing on the public highway, as the result of which the accident occurred.

The plaintiffs Cecil B. Rogers and Susan D. Rogers brought this action against Robert C. Race and Ronald Bierczynski, ages 18 and 17 respectively, alleging concurrent negligences in that they violated various speed statutes and various other statutory rules of the road, and in that they failed to keep a proper lookout and failed to keep their vehicles under proper control. The jury, by answer to interrogatories in its special verdict, expressly found that Race and Bierczynski were each negligent and that the negligence of each was a proximate cause of the accident. Substantial verdicts were entered in favor of the plaintiffs against both defendants jointly. The defendant Bierczynski appeals therefrom. The defendant Race does not appeal; rather, he joins with the plaintiffs in upholding the judgment below.

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Bierczynski's contention as to lack of proximate cause is based mainly upon the facts that his automobile remained in the proper lane at all times and was stopped about 35 feet before reaching the area of impact, without coming into contact with the Rogers car. These facts notwithstanding, the foregoing testimony of the plaintiff constituted sufficient evidence of proximate cause, in our opinion, to warrant the submission of that issue to the jury as to both drivers.

A reasonable inference capable of being drawn from the above testimony of Rogers, in the light of the surrounding circumstances, is that Race and Bierczynski were engaged in a speed contest as they came down the hill of Lore Avenue approaching its intersection with River Road. It is unimportant whether it was technically a "race", in the terminology of the defendants who deny that they were "racing". Clearly, the inference of a deliberate and intentional speed competition, as they came down the hill practically side-by-side at twice the legal speed, was permissible from Rogers' testimony; clearly, the inference that Bierczynski maintained his greatly excessive speed deliberately to prevent Race from passing him, was also permissible from Rogers' testimony. We classify both of these courses of conduct as improper racing on the highway. In either of the latter situations, the issue of whether Bierczynski's conduct was a proximate cause of Race's loss of control and collision with Rogers, was a proper issue for the jury.

In many States, automobile racing on a public highway is prohibited by statute, the violation of which is negligence per se. [. . .] Delaware has no such statute. Nevertheless, speed competition in automobiles on the public highway is negligence in this State, for the reason that a reasonably prudent person would not engage in such conduct. This conclusion is in accord with the general rule, prevailing in other jurisdictions which lack statutes on the subject, that racing motor vehicles on a public highway is negligence. [. . .]

It is also generally held that all who engage in a race on the highway do so at their peril, and are liable for injury or damage sustained by a third person as a result thereof, regardless of which of the racing cars directly inflicted the injury or damage. The authorities reflect generally accepted rules of causation that all parties engaged in a motor vehicle race on the highway are wrongdoers acting in concert, and that each participant is liable for harm to a third person arising from the tortious conduct of the other, because he has induced and encouraged the tort. [. . .]

We subscribe to those rules; and hold that, as a general rule, participation in a motor vehicle race on a public highway is an act of concurrent negligence imposing liability on each participant for any injury to a non-participant resulting from the race. If, therefore, Race and Bierczynski were engaged in a speed competition, each was liable for the damages and injuries to the plaintiffs herein, even though Bierczynski was not directly involved in the collision itself. Bierczynski apparently concedes liability if a race had, in fact, been in progress. Clearly there was ample evidence to carry to the jury the issue of a race -- and with it, implicit therein, the issue of proximate cause as to Bierczynski.

The foregoing disposes of the appellant's contention that there was no evidence upon which it was proper for plaintiffs' counsel to argue to the jury that the defendants were racing.

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We find no error as asserted by the appellant. The judgments below are affirmed.