14. A declaration is not demurrable because it is not averred therein that the
plaintiff was ignorant of the facts and circumstances which constituted the negli-
gence complained of, nor because it does not aver that the defendant had or should
have had notice or knowledge of any facts or circumstances which would consti-
tute negligence on the part of the defendant. Sweeney vs. Jessup & Moore
Paper Co., 284.
15. A person approaching a railway crossing with which he is familiar must
avail himself of his knowledge of the locality and act accordingly. If, as he ap-
proaches the crossing, his line of vision is unobstructed it is his duty to look for
approaching cars in time to avoid collision with them; and if he does not look, and
for that reason does not see an approaching car until it is too late to avoid the
collision, and he is hereby injured, he is guilty of contributory negligence and
cannot recover. When his view at the crossing is obstructed, greater care is
necessary than in places where the view is unobstructed. Boudwin vs. Wil.
City Ry., 381.
16 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 sur-
rounding conditions reasonably demand other and more effective warning. Reed
vs. Q. A. R. R., 413.
17. It is the duty of the city, through its proper officers and agents, to exercise
due care and diligence in keeping the streets free from dangerous obstructions,
and in keeping its electric wires along such streets in such condition as not to
interrupt or endanger public travel. The care required is reasonable care, pro-
portioned to the danger or mischief liable to ensue from the omission of such
care. But the city is not an insurer against all injuries which may result from
obstructions in the public streets. It is liable only for such injuries as are the
result of its negligence or default in the performance of some duty imposed
upon it by law. Colbourn vs. Wilmington, 443·
18. If an electric wire, the property of the ity, is broken down and sus-
pended in the street by reason of the sleet adhering to it, and without any neglect
or default of the city, it would not be responsible for such breaking or suspension,
as this would be what is called the act of God. If, however, after notice of the
dangerous condition of the wire, whoever may
city did not within a reasonable time remove
precautions to notify travelers or protect them
of negligence. Ibid.
have been the owner of it, the
pair the same, or take proper
the danger, it would be guilty
19. If, at and immediately before the time of the accident, a police officer of
the city, near the suspended wire, gave due and timely warning of the danger to
the driver of the team that was injured, the city would not be liable for injury
sustained by reason of the disregard of such warning, or other negligence on the
part of the driver. Ibid.
20. Where the injury complained of is the result of the negligence of both
parties, the plaintiff is held to be guilty of contributory negligence, and cannot
recover, as the law will not in such case undertake to measure and balance the
degree of responsibility attributable to each of the parties. Ibid.
Where the negligent acts of two or more independent persons have between
them caused damage to a third, the sufferer is entitled to sue any and all the
negligent persons, though he cannot recover in the whole more than his whole
damages. Jarrell vs. Wilmington, 454.
22. Negligence on the part of the motorman of the colliding car would be the
negligence of the defendant company; and negligence on the part of the plain-
tiff's wife, the driver of the carriage which was struck, would be negligence of
the plaintiff. In the joint use of a public street by ordinary vehicles and
electric cars, those in charge of each are required to exercise due and proper care
to avoid collisions. Dungan vs. Wil. City Ry., 458.
23. If the injury complained of was caused by concurrent negligence of both
parties, the plaintiff would be guilty of contributory negligence and could not
recover, as the law in such case does not weigh and balance the degree of negli-
gence or responsibility attributable to each party. Ibid.
24. Negligence is the failure to observe, for the protection of the interest of
another person, that degree of care, precaution and vigilance which the circum-
stances justly demand. And while the obligation to exercise care in the conduct
of one's business varies under different circumstances, there always remains the
duty to exercise such reasonable care as would be exercised by a person of ordi-
nary prudence under like circumstances. Szymanski vs. Blumenthal, 511.
25. If it appears from the evidence that there were other and inexpensive
methods by which the revolution of the drum might have been prevented; that it
was the duty of the defendant to provide some more certain method or device
than a loose pulley for keeping the drum at rest, and that by reason of the failure
to perform that duty the defendant was guilty of negligence, it was improper for
the trial Court to take the case from the jury because the plaintiff had failed to
produce any evidence tending to show why the pulley became fast. Ibid.
26. The question of negligence is one of law for the Court, only where the
facts are such that all reasonable men must draw the same conclusion from them,
or, in other words, a case should not be withdrawn from the jury unless the con-
clusion follows, as a matter of law, that no recovery can be had upon any view
which can be properly taken of the facts the evidence tends to establish.
Ibid.
27. If the vision of a person approaching a street railway crossing is obstructed
he is bound to look for approaching cars in time to avoid collision with them,
and, if he does not look, and for this reason does not see an approaching car
until it is too late to avoid a collision, he is guilty of negligence, and precluded
from a recovery for injuries sustained. Di Prisco vs. Wil. City Ry., 527.
28. Negligence defined. Ibid.
29. If the negligence of a street railway company and the person injured in a
collision was mutual, and the negligence of each was operative at the time of
the accident, no action can be maintained for such injuries. Ibid.
30. If the negligence of a street car company resulting in a collision was the
proximate cause of the accident and death of plaintiff's intestate, plaintiff is entitled
to recover, though the deceased might have been guilty of some negligence, since,
if the injury was proximately caused by defendant's failure, after becoming
aware of the danger of plaintiff's intestate, to use ordinary care to avoid in-
juring him, plaintiff's contributory negligence is no defense. Ibid.
31. Failure of a street railway company to provide its car with a conductor
is not alone sufficient to constitute negligence justifying a recovery for the death
of a child in a collision with a car, unless the motorman at the time of the acci-
dent was prevented from doing his duty by trying to perform the duties of both
motorman and conductor, and that by reason thereof his failure to perform his
duty as a motorman entered into and caused the injury. Ibid.
32. The burden is upon the plaintiff to prove negligence, and by a preponder-
ance of the evidence. Where contributory negligence is set up as a defence, it
must be proved by the defendant in like manner. Punkowski vs. N. C. Leather
33. Even though the plaintiff was guilty of some negligence, yet if the defend-
ant was guilty of the negligence which was the proximate cause of the injury, the
plaintiff would be entitled to recover. Ibid.
See DAMAGES, MASTER AND SERVANT; Reasonable Care.
NERVOUS SYSTEM, INJURIES TO.
I. An averment in plaintiff's declaration "that the said plaintiff was shaken
and jarred violently, whereby she was greatly hurt, shocked and injured, and
became and was sick, sore, disordered and nervously prostrated;" held on demurer
to be a sufficient statement of the injuries complained of. Boudwin vs. Wil.
City Ry., 381.
Measure, of damages-such sum as will compensate the plaintiff for any
injury to her nervous system, and pain and suffering, shown by the testimony to
have been caused by the accident. Ibid.
1. After verdict and motion for a new trial, the Court announced that it had
determined that a new trial should be granted on the ground that the verdict
was excessive, but upon the application of the plaintiff for a reduction of the
amount of the verdict, the motion for a new trial was refused. Winkler vs. P.
2. When the name of John C. Mitchell was duly and lawfully placed on the
jury list for the term, but John W. Mitchell was actually summoned and, on his
voir dire examination, accepted by the prisoner as a juror and sworn at the time,
and it not appearing that any prejudice or injustice was thereby done to the priso-
ner, a motion for a new trial was in view of these and the other circumstances of
the case, refused. State vs. Brinte and Jiner, 551.
3. In motions for new trials the practice has been to hear the witnesses. The
application is based upon affidavits where matter dehors the record is relied upon,
but the evidence before the Court is the evidence of the witnesses themselves.
State vs. Harmon, 580.
NEWSPAPERS.-See LIBEL.
NEXT FRIEND.
In a suit by next friend, the next friend is the responsible party in this court.
Rauche vs. Blumenthal, 523.
NON RESIDENT ALIENS.-See ALIENS.
Certain words, alleged to be libellous, held by the Court on a motion for
nonsuit, after giving to them their most extended meaning connected with the
circumstances, not to be outside of the defendant's privilege as an attorney; the
evidence, moreover, distinctly negativing express malice. Craig vs. Burris, 156.
2. Upon a consideration of all the testimony on the part of the plaintiff, a mo
tion 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." Reed vs. Q.
A. R. R., 413.
3. Nonsuit granted. Smith, Kline and French Co. vs. U. S. F. and G. Co.,
428; Duncan vs. Levy Court, 493.
4. Decision granting nonsuit, reversed. Szymanski vs. Siumentha., 511.
NOTE.
Even though the note in question was not signed, nor the money borrowed
or received, by the corporation defendant in pursuance of a special resolution of
the Board of Trustees as provided by the by-laws of the corporation, yet it will
not be a sufficient defence to the plaintiff's action, if the defendant did actually
receive and enjoy the use and benefit of the money, and has not repaid the same.
Under such circumstances the law, in the absence of a valid express contract,
implies a promise on the part of the defendant to repay the plaintiff. St. Joseph's
Society vs. St. Hedgwig's Church, 141.
2. As a general rule, the payment of a debt by a note, if accepted as such, is
a good payment, and this is so even though the authorized agent of the company
discounts the note on his own account and does not pay the amount to the prin-
cipal. Mauck vs. Fire Ins. Co., 326.
NOTE OF CORPORATION.-See CORPORAtion.
1. A count which averred that the defendant negligently and carelessly started,
or put in motion, the said machine, without giving proper notice or warning to the
deceased, whereby, etc., held insufficient because it does not designate any par-
ticular machine. The declaration must notify the defendant of what he is to
meet. Kennedy vs. Del. Cotton Co., 353.
2. In order to render the city liable, it must appear that it had notice or
knowledge of the obstruction for such time as would have been sufficient for its
removal. This notice may be either express or implied. Implied notice is
where an obstruction has existed and continued on the street for such a time as
the city by reasonable diligence might have obtained knowledge thereof. Jarrell
vs. Wilmington, 454.
3. If an electric wire, the property of the city, is broken down and suspended
in the street by reason of the sleet adhering to it, and without any neglect or de-
fault of the city, it would not be responsible for such breaking or suspension, as
this would be what is called the act of God. If, however, after notice of the
dangerous condition of the wire, whoever may have been the owner of it, the
city did not within a reasonable time remove or repair the same, or take proper
precautions to notify travelers or protect them from the danger, it would be
guilty of negligence. Colbourn vs. Wilmington, 444.
See GARNISHEE; KNOWLEDGE; REASONABLE CARE.
OBSTRUCTIONS IN STREETS.-See PUBLIC HIGHWAY.
OBTAINING MONEY BY FALSE PRETENSE.
I. The indictment in this case for obtaining money by false pretense, held by
the Court, after full discussion and the citation of authorities, to be sufficient.
State vs. White, 6.
The motion for a bill of particulars should be in writing and filed in court;
and it ought to point out fully all the particulars desired. State vs. McDaniel,
et al., 96.
3. The motion of defendants for an order on the Attorney-General to file a
OBTAINING MONEY BY FALSE PRETENSE-Continued.
bill of particulars refused, the Court being of opinion that the case did not war-
rant the making of such an order. The granting or refusing of such motion rests
largely in the discretion of the Court, and is not a matter to which an exception
can properly be taken. Ibid.
OFFICER.-See PUBLIC Officer; PEACE OFFICER.
OPENING JUDGMENT.-See JUDGMENT.
Opinion of Court corrected. State vs. George, 57.
1. Applicatfon for order of Court respecting production of paper, refused.
2. To obtain an order of the Court, under the statute, (Sec. 13, Chap. 107,
Rev. Code,) for the production of books or writings in the trial of actions at law,
the issuance of a rule is not necessary. The proper practice is to make the order
upon the presentation of the affidavit and the serving of the notice. At the re-
turn of the order the party upon whom it is made can excuse himself by any
proper excuse. Netter vs. Stoeckle, 345.
3. To obtain such an order the affidavit ought to aver that the papers are now
in the possession or control of the defendant. An allegation that they were in the
possession or control of the defendant some time before would not justify the
Court in making the order. Ibid.
ORDINANCE OF CITY.-See CITY ORDINANCE.
ORDINANCE OF TOWN.-See CITY ORDINANCE.
OWNER OR REPUTED OWNER.-See MECHANICS' LIEN.
PAPERS, PRODUCTION OF.-See ORDER OF COURT.
An action cannot be maintained in this State by a father for damages
accruing to him by reason of the death of his son, and the consequent loss of
services. Kennedy vs. Del. Cotton Co., 477.
PARTICULARITY OF DESCRIPTION. See DEMURRER.
I. A person, who as committee of and representing an unincorporated asso-
ciation, makes a contract with another, may be personally liable thereon. Mc-
Kinnie vs. Postles, 16.
2. Where a mechanics' lien is filed against a corporation which has gone out
of existence, the Court will permit its successor, under certain circumstances, to
appear specially and file an affidavit of defense. Montello Brick Co. vs. Pull-
man's Palace Car Co., 90.
3. In an action like the present the president of the corporation is not an im-
proper party defendant with the corporation. It may be his duty to see that the
desired act is performed. But, even though he be not a necessary party, it
does not follow that his joinder would be improper or fatal to the writ. Bay
State Gas Co., et al. vs. Content and Co., 238.
4. The persons with whom the contract of insurance was made, and who had
the legal right to sue upon it, are the proper parties plaintiff, notwithstanding the
fact that the defendant company marked the policy for the use of another. Schi-
lansky vs. Fire Ins. Co., 293.
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