VERDICT.

fully and conscientiously considering all the testimony in the case would entertain, it would be your duty to render a verdict of not guilty.

Verdict, not guilty.

CARTER BERKELEY TAYLOR vs. JOHN EDWARD ADDICKS.

Statute-Affidavit of Demand-Judgment at First Term-Character of Claim-Attorney; Services of, not Itemized-Not Covered by Statute.

The claim of an attorney for services, charged in one item in lump, rendered in one suit extending over seven years, and necessarily embracing many items, does not come under our statute, and judgment may not be had upon it at the first term upon an affidavit of demand as a book account regularly and fairly kept. Where such charge is not itemized, or is incapable of being itemized, it is not covered by the statute.

(September 26, 1903.)

LORE, C. J., and PENNEWILL and BOYCE, J. J., sitting.

John Biggs for plaintiff.

Walter H. Hayes for defendant.

Superior Court, New Castle County, September Term, 1903.

SUMMONS CASE (No. 6, September Term, 1903). Motion for judment for want of affidavit of defense.

OPINION.

LORE, C. J.:-This is an action on a book account, which is as follows:

"July 1, 1903.

"John Edward Addicks

"To Carter Berkeley Taylor, Dr. "To professional services rendered from May 9, 1893, down to and including October 23, 1900, in suit in Equity brought by the Mayor and Council of Wilmington, etc., vs. John Edward Addicks, John G. Baker, Frederick P. Addicks, Simon B. Conde and Samuel Austin; subsequently the Mayor and Council of Wilmington et al. vs. John Edward Addicks and Oxy-Hydrogen Company, in the Court of Chancery of the State of Dela$2,500."

ware..

Biggs, for the plaintiff, moved for judgment for plaintiff for want of affidavit of defense.

Hayes, for defendant objects, that the above stated item is not the subject for the recovery of judgment on affidavit of demand at the first term, as a book account regularly and fairly kept under the statute, and asks that judgment be refused.

In Sloan vs. Grimshaw, 4 Houst., 326, this Court held that plans of an architect for the erection of a building, charged in one item of $100, was not properly chargeable in a book account or to be proved by a copy of it appended to an affidavit of cause of action.

The item in this case is for professional services as an attorney, running from May 9, 1893, to October 23, 1900, a period of over seven years, in one unitemized charge of $2500, under date of July 1, 1903.

We can see no difference in principle between the services of an architect in plans for building a house, charged in one item in lump, and those of an attorney, charged in one item in lump, for

OPINION.

services in one suit, extending over seven years and necessarily embracing many items.

Where such charge is not itemized, or is incapable of being itemized, it does not come under our statute, and judgment may not be had upon it at the first term upon an affidavit of demand as a book account regularly and fairly kept.

Judgment is therefore refused.

MARY E. REED vs. QUEEN ANNE'S RAILROAD COMPANY.

Personal Injuries-Husband and Wife-Action by Widow-Death of Husband― Presumption of Law-Due Care-Negligence— Duty of Company-Duty of Traveler-Unavoidable Accident-Opinion of Witness as to dangerous character of Crossing-Nonsuit refus'd-Measure of Damages.

1. In an action by a widow against a railroad company to recover damages for the death of her husband, a witness for plaintiff having testified that he was familiar with the crossing in question and its surroundings, and that there were embankments, trees, etc., near said crossing which would obscure the traveler's view of an approaching train; held that the witness might give his judgment as to whether the crossing was an unusually dangerous one.

2. Upon a consideration of all the testimony on the part of the plaintiff, a motion for nonsuit refused, the Court saying: "Under the testimony this is a very close case, but as it stands we must decline to grant a nonsuit."

3. Public highway crossings at grade of a railroad operated by steam engines are in themselves danger-warnings, both to the company itself and to travelers on the public highway using such crossings. When railroad trains are approaching such crossings it is the duty of the company to give due and timely warning of such

SYLLABUS.

approach, so that travelers may have reasonable notice thereof. It is further their duty to regulate the speed of the cars according to the danger. If the crossing be in a thickly populated or much frequented locality, or the view be obstructed, or exceptionally dangerous from any cause, it is the duty of the company to exercise greater care and caution, proportioned in every case to the danger, so as reasonably to avoid accident.

4. On the other hand, there is a like duty imposed upon the traveler upon the highway. He must exercise in every case care proportioned to the dangerous nature of the crossing. If there are no obstructions, and the approaching train can be readily seen, he must reasonably use all his senses to avoid the danger. If by stopping, looking or listening, he could see or hear the approaching train, and he does not do so and the accident happens from that cause only, he takes the risk and must bear the consequences of his own carelessness. If the view of the crossing be obstructed or is otherwise exceptionally dangerous, he must use care and caution in proportion to such increase of danger, and to any knowledge that may come to him from familiarity with the conditions.

5. What particular facts constitute negligence in any particular case, depend upon the circumstances of that case. The speed of the train, the giving of signals or warning and other precautions on the part of the railroad company; the stopping, looking, listening and other precautions on the part of the traveler, must vary with the varying conditions and danger in each case. Where the law does not limit the speed, it is in the discretion of the company, reasonable precaution being taken therein for the security of life and property. Mere compliance with signals or warning required by the statute may not be sufficient where the surrounding conditions reasonably demand other and more effective warning.

6. In the absence of evidence to the contrary, the law presumes that at the time of the accident the deceased did his duty, and did exercise reasonable care. This, however, is mere presumption of law. Such presumption does not apply where all the circumstances of the accident are detailed by eye witnesses.

7. If the horse of the traveler becomes unmanageable from any cause, and runs across the track, and an accident happens from that cause, without fault on the part of the company, it would be in the nature of inevitable accident, for which the company would not be liable.

8. Measure of damages.

(October 14, 1903.)

LORE, C. J., and GRUBB and PENNEWILL, J. J., sitting.

Robert C. White and James A. Marsh for plaintiff.

Charles W. Cullen for defendant.

EVIDENCE.

Superior Court, Sussex County, October Term, 1903.

ACTION ON THE CASE (No. 76, April Term, 1901) by widow, to recover damages for death of husband.

Plaintiff claimed that in the month of March, 1901, in the town of Milton in Sussex County, at a point where the railroad of the defendant company crosses Federal Street, the carriage in which her husband was riding was struck by one of the defendant's locomotive steam engines attached to a train of cars; that the carriage was broken to pieces, her husband thrown to the ground and killed; that his death was caused by the negligence of the defendant company, in then and there running their train at a high rate of speed, without giving the usual signals and warning, and without due, reasonable and timely warning at such crossing.

William B. Carswell testified that he was a civil engineer of twenty years' experience, including three years on construction work on the Baltimore and Ohio Railroad, and was familiar with the crossing in question and surroundings, having made a survey and plot of the same.

Witness further testified that there was an embankment two hundred and fifty feet long by about five feet elevation at its highest point, with bushes, briars and cedar trees growing upon it, on the East side of Federal Street approaching said crossing, which would, more or less, obscure a traveler's view of a train of cars approaching said crossing, until the person reached the point where the embankment terminated at the right-of-way of the defendant company, at or near the crossing.

The witness was then asked by Mr. White:

"Is or not that, in your judgment, an unusually dangerous crossing for a person coming from the direction of Milton and crossing the railroad at that point, with a train approaching from the East?"

(Objected to by counsel for defendant on the ground that the question as to whether or not the crossing was an unusually dan