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of accidental killing is set up does not shift, cannot be sustained because it is in plain viobut rests on the commonwealth to show that lation of a rule of law in another respect. It the killing was willful and intentional. is settled law that even if those cases in

In State v. McDaniel, 68 S. C. 304, 47 S. which the burden of proof is on the defendE. 384, 102 Am. St. Rep. 661, the court said: ant to sustain an affirmative defense set up, “But we do not think that a defense that as, for instance, Insanity or an alibi, it is the homicide was accidental was in any only necessary to establish it by a prepondersense an affirmative defense. It is distin ance of the evidence, and it is not required guishable from self-defense as a plea which that it should be proven beyond a reasonable admits an intentional killing, and sets up as doubt. Meyers v. Commonwealth, 83 Pa. 131. a justification a necessity to kill in order In that case the defense was insanity, and to save the accused from death or serious the learned court below instructed the jury bodily harm, whereas a defense of homicide that they must be satisfied beyond a reasonby accident denies that the killing was in. able doubt that the prisoner was insane at tentional.” In State v. Cross, 42 W. Va. 253, the time the act was committed. This court 24 S.' E. 996, the rule was laid down in held that the instruction was too stringent, the following language: "Accidental killing and threw upon the prisoner a degree of is not such matter of defense as throws on proof beyond the legal measure of his de the accused the burden of proving it by a fense, which only required that he must satpreponderance of evidence. It is the duty isfy the jury that he was insane, and that of the state to allege and prove that the this result flows from the preponderance of killing, though done with a deadly weapon, the evidence. was intentional or willful. But, when the The instruction of the learned trial judge evidence taken as a whole raises a reason relating to the accidental killing was clearly able doubt in the minds of the jury as to erroneous, and this seems to be conceded; whether the killing was accidental or inten but it is contended that this error was cured tional, they must acquit the accused for the by other parts of the charge wherein the reason that the state has failed to sustain its jury was instructed generally that it was case.” This, it seems to us, is the correct the duty of the commonwealth to establish rule when such a defense is set up. The bur the guilt of the prisoner beyond a reasonable den is always on the commonwealth to prove doubt. While we agree with the suggestion beyond a reasonable doubt all of the facts of the learned counsel for the commonwealth necessary to constitute the crime of murder. made at the argument that courts will not be It is not sufficient to prove the killing alone, astute to sustain technical objections in the or that it was done with a deadly weapon, trial of such cases when substantial justice but such facts must be shown as will war has been accorded the defendant, it, howrant a jury in finding that it was intentional ever, has never been held that, where clear or willful. If the killing was accidental, al error appears in the instructions to the jury though done with a deadly weapon, it could upon the vital and controlling defense set up, not be said to be either intentional or willful, the appellate court can judicially say no and, if neither intentional nor willful, the harm was done the defendant and therefore crime of murder is not made out. But, even no reversible error was committed. if this should be held not to be the correct Judgment reversed and a venire facias de rule, the instruction of the learned trial judge novo awarded.

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(6 Pen. 363)

Error to Superior Court, New Castle WILMINGTON CITY RY. CO. V. WHITE. County. (Supreme Court of Delaware. June 18, 1907.)

Action by James R. White against the

Wilmington City Railway Company. From a 1. NEGLIGENCE-QUESTION FOR COURT AND

judgment for plaintiff, defendant brings erJURY. In an action for injuries, it is for the

ror. Affirmed. court to say whether there is any evidence Argued before NICHOLSON, Ch., and from which negligence or contributory negli SPRUANCE and BOYCE, JJ. gence can be reasonably and legitimately inferred; but it is for the jury to say whether, from the evidence adduced, when submitted to

Walter H. Hayes and Ward & Gray, for them, any negligence, and whose, ought to be plaintiff in error. Levin Irving Handy and inferred.

Herbert L. Rice, for defendant in error. (Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, 8 282.)

BOYCE, J. This action was brought in 2. STREET RAILROADS-INJURIES TO TRAVELER -NEGLIGENCE-CONTRIBUTORY NEGLIGENCE

the Superior Court for New Castle county by -QUESTION FOR JURY.

Jamies R. White, the plaintiff below, against In an action for injuries to the driver of

Wilmington City Railway Company, the a coach in a funeral procession, caused by a collision with a street railway car, evidence

defendant below, for the recovery of damheld to require submission of the question of de ages for personal injuries alleged to have fendant's negligence and of plaintiff's contribu been occasioned by the negligence of the detory negligence to the jury.

fendant company. The plaintiff, in his decla. [Ed. Note.For cases in point. see Cent. Dig. ration, containing, as amended, three counts. vol. 44, Street Railroads, $8251-257.]

alleged that the defendant company negli3. SAME-EVIDENCE-CUSTOM-PLEADING.

In an action for injuries to the driver of gently and carelessly (1) omitted to give reaa coach in a funeral procession, caused by a

sonable notice of the approach of one of its collision with a street car, evidence that for cars in time to avoid a collision with a coach a long time prior thereto it had been the cus driven by the plaintiff ; (2) so operated the tom of the operators of street cars as a matter of privilege to permit funeral processions to

car as to collide with the coach, whereby the pass without a break in the line, and that plaintiff was burled from the coach to the plaintiff, with knowledge of such custom, relied surface of the street and injured; and (3) thereon at the time he crossed the track in

used the car with defective brakes, and by front of the car, was admissible, though not pleaded.

reason thereof the collision and injury OC(Ed. Note.-For cases in point, see Cent. Dig.

curred. The injuries complained of were vol. 44, Street Railroads, $ 225.]

caused by the collision of a car of the de 4. CUSTOMS AND USAGES-DISTINCTION. fendant company with a coach driven by the

Usage, in its most extensive meaning, in plaintiff in a funeral procession, at the intercludes custom; but in its narrower significa

section of Tatnall street and West Fourth tion it refers to a general habit, mode, or course of procedure.

street, in the city of Wilmington, between the [Ed. Note. For cases in point, see Cent. Dig. hours of 2 and 3, on the afternoon of April vol. 15, Customs and Usages, 88 1, 2.)

27, A. D. 1904. The plaintiff's coach was 5. SAME-PLEADING.

the fifth in order behind the hearse, and the A general custom need not be pleaded, but procession was moving slowly and northward a custom obtaining only in a particular district

along Tatnall street, with four or five feet or neighborhood must be.

of space between the horses of one coach and (Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Customs and Usages, g 40.1

the rear of the coach ahead. The car was 6. STREET RAILROADS-INJURIES TO TRAVEL

approaching Tatnall street on the eastwardERS-EVIDENCE-PLEADING.

bound track of the defendant company on In an action for injries to the driver of a West Fourth street. West street is west of, coach in a funeral procession by a collision

next to, and parallel with Tatnall street. It with a street car, evidence as to the condition of travel on the street for two hours, including

is conceded that the distance between Tat. the time of the accident, was admissible, though nall and West streets is about 190 feet, and not pleaded.

that the fall or downgrade on Fourth street 7. PLEADING-COUNTS.

from West to Tatnall is 109/10 feet in each It is no objection that plaintiff's cause of action be stated in several counts. if the priv

100 feet of the distance between them. The ilege is fairly and reasonably exercised.

day upon which the accident occurred was (Ed. Note.--For cases in point, see Cent. Dig. said to be drizzly and rainy. Tatnall street, vol. 39, Pleading, $ 114.)

from building line to building line, was shown 8. PLEADINO-MATTERS TO BE PROVED,

to be 49 feet wide, and Fourth street 82 feet The pleadings in a case are not evidence

6 inches wide. The defendant company has of the matters pleaded.

two tracks laid on Fourth street. (Ed. Note.-For cases in point, see Cent. Dig. vo). 39, Pleading, 88 1217, 1218.]

The plaintiff testified that he was an ex9. APPEAL-PREJUDICE.

perienced driver; that he was sitting on the A count in a declaration on which issue has outside, and on a level with the top of bis been taken, but respecting which no evidence is coach; that he first saw the car when he introduced, is harmless to defendant on the

passed the building line on the southerly merits of the case, though not stricken out on motion.

side of Fourth street; that the car was then [Ed. Note.-For cases in point, see Cent. Dig.

stopped, with the hind part at the crossing on vol. 3. Appeal and Error, $ 4113.)

the east side of West street; that he then 66 A.-64

looked towards Market street and saw a car not limited by law, yet in approaching such coming west; that he did not watch the car crossing it was the duty of the motorman to at West street; that just before he reached make the descent at such reasonable speed the corner on the southerly side of Fourth as not to put the car beyond his control; street the driver ahead of bim held out his and as the danger of collision increased, if he hand to that part of the hill and signaled to saw or could see the danger, it was his duty the car to stay there, judging from the way he to use all the means in his power to check or held his hand; that after he glanced at the stop the car. Price v. Warner Co., 1 Penne car he did not look at it again until he heard will (Del.) 472, 42 Atl. 699. This does not imthe ringing of the bell, when his front wheel pose upon the motorman, however, an imposwas on the first rail of the east-bound track sibility. If he in fact did all that he could and his horses had cleared the track; that to control the speed of the car, under the cirthe car was from 8 to 15 feet away from cumstances, the company would not be liable. him; that he first heard the bell just before It was, however, equally the duty of the the car hit him. The speed of the car, coming plaintiff, the driver of the team, to use all down the hill, was said to be from 8 to 12 reasonable care and precaution to prevent the miles an hour. The plaintiff, against objec accident. We will not attempt to specify the tions and exceptions, was permitted to in precise acts of precaution which are necestroduce evidence of a custom or usage of the sary to be done or omitted by one in the defendant company to stop its cars to allow management of an electric car, or by one in a funeral procession to pass across its tracks the management of or driving a wagon apwithout interruption or break in the line; proaching a railway crossing. Such acts that he knew of the existence of the custom; must depend upon the circumstances of each and that between 2 and 3 o'clock in the after case, and the degree of care required differs noon the wagon travel on Tatnall street, at in different cases. The general rule is that and near Fourth street, was heavy. There the person in the management of the car and was some conflict of testimony respecting the person driving the wagon are bound facts material to the issue.

equally to the reasonable use of their sight When the plaintiff had rested his case, and hearing for the prevention of accidents, counsel for the defendant moved: “First. and to the exercise of such reasonable cauThat the third count of the plaintiff's declara tion as an ordinarily careful and prudent tion, as to defective machinery and appli person would exercise under the circumstanances, be struck out, because there had been

ces of a particular case. A person approachno evidence to support it; or, second, that as ing a railway crossing with which he is to the third count a nonsuit be entered for familiar is bound to avail himself of his the lack of evidence to support it; or, third, knowledge of the locality and act accordingly. that the jury be instructed to find a verdict If the approach of the railway to the crossfor the defendant on the third count." The ing be down a steep grade, whereby it is court overruled each of said motions, and more difficult to stop or check a car, the exceptions were noted. The defendant hav. driver of the vehicle should exercise more ing closed its testimony, counsel for the plain care than might be necessary where the aptifr abandoned the third count in his dec proach of the railway was by a slight delaration. Respecting the said count the

cline, upon a level, or by an ascending grade. court said, in part: “The third count, as to If, as he approaches the crossing, his line of defective machinery is not before the jury vision is unobstructed, he is bound to look and not to be considered by the jury." Coun for approaching cars in time (if possible) to sel for the defendant then requested "the avoid collision with them, and if he does not court to give the jury binding instructions look, and for this reason does not see an to find a verdict for the defendant on the approaching car until it is too late to avoid a remaining counts." The request was not collision, he is guilty of negligence. Brown granted, and the plaintiff had a verdict. To v. Railway Co., 1 Pennewill (Del.) 336, 40 Atl. the refusal of the court to give binding in

936;

Snyder v. People's Ry., 4 Pennewill structions and to certain rulings as to the (Del.) 148, 149, 53 Atl. 433. Both the comadmission of testimony the defendant took pany and the driver of the team, the plaina bill of exceptions; and its counsel have

tiff in this case, were required to use such assigned eleven errors.

reasonable care as the circumstances de The first of these is: “The court below err manded; an increase of care on the part of ed in refusing to instruct the jury to find a both being required when there is an increase verdict for the defendant”—because, as it was of danger. The right of each one using the contended, the evidence disclosed (1) that the highway must be exercised with due regard plaintiff was guilty of contributory negli. to the right of the other, and in a reasonable gence, and (2) that there was not any breach and careful manner, so as not unreasonably of duty on the part of the motorman in or unnecessarily to abridge or interfere with charge of the car which the defendant owed the right of the other. Some of the witnesses to the plaintiff. It was conceded that the have testified that they heard the car bell court below stated correct propositions of law ring coming down the hill; others, that they in that part of its charge to the jury as fol. did not hear it ring. The testimony of the lows: “While the speed of trolley cars is former witnesses is, of course, of more weight

er.

than that of those who merely say that they the court will not decide the question withdid not hear the bell ring, which might out the aid of the jury, if the conclusion to reasonably be attributed to a want of atten be drawn therefrom is doubtful and uncertion at the time. Such negative testimony is tain. Queen Anne's R. R. v. Reed, supra. usually of little value. Q. A. R. R. Co. v. The court, in submitting this case to the ju. Reed (Del. Sup.) 59 Atl. 863."

ry, charged them upon the law of negligence It was contended that these instructions, as follows: "The gist of this action is negliapplied to the facts in the case, entitled the gence, and the burden of proving the neglidefendant to the peremptory instruction re gence of the defendant company rests upon quested. In every action for negligence two the plaintiff in this case. If there was no things are requisite to entitle the plaintiff to negligence on the part of the company, your a recovery (1) Negligence on the part of verdict should be for the defendant. Even the defendant; and (2) due care on the if there was negligence on the part of the part of the plaintiff. In every such action, defendant, yet if the negligence of the plainthe question, "Whose negligence was the tiff contributed to the accident, or was the proximate cause of the injury complained proximate cause thereof, your verdict should of?" is one whicb must be determined from be for the defendan: ; for he would, in that the evidence, under all the facts and circum case, be guilty of contributory negligence. stances of the particular case. It is for the If you believe that at the time of the acci. court to say whether there is any evidence dent each party was using such reasonable from which negligence on the part of the de care as the circumstances demanded, then fendant, or contributory negligence on the the collision was simply an unavoidable acpart of the plaintiff, can be reasonably and cident, and the plaintiff could not recover." legitimately inferred; but it is for the jury The third, fourth, fifth, sixth, and seventh to say whether, froin the evidence adduced, assignments of error were considered togethwhen submitted to them, any negligence, and They each related to the admission of whose, ought to be inferred. Queen Anne's evidence on behalf of the plaintiff, against R. R. v. Reed, 5 Pennewill (Del.) 228, 59 Atl. objections and exceptions, respecting “a cus860; Creswell v. W. & N. R. R. Co., 2 Pen tom, general and uniform, established by the newill (Del.) 210, 43 Atl. 629. Whether the defendant company for its trolley cars to court should (1) submit the case to the jury

stop and allow a funeral procession to pass upon the evidence; or (2) should order a across its tracks without interruption." The nonsuit when the plaintiff has rested his custom was not pleaded, and it was contendcase, or direct a verdict for the defendant if ed that it was not competent to prove it the plaintiff should decline to take a nonsuit; without being pleaded. In overruling the ob'or (3) should direct a verdict for either the jection the court said: "In the case of plaintiff or the defendant at the close of the Foulke v. Wilmington City Railway Comtestimony-must depend upon the state of pany, 5 Pennewill (Del.) 363, 60 Atl. 973, we the evidence in the particular case, at each

admitted this same question upon the ground stage thereof. If in the absence of contribu

that while there was no duty resting upon tory negligence on the part of the plaintiff, the defendant company to stop and allow futhere is any evidence of negligence on the neral processions to pass, yet if they had part of the defendant upon which the jury been in the habit of doing it, and thereby incan properly find a verdict, or if the conclu duced, on the part of the drivers who were sion to be drawn therefrom is debatable, or familiar with the custom, the belief that they rests in doubt, though the facts are undisput would stop, it entered into the question of ed, or if the evidence is conflicting in regard the driver's negligence.

We do not to any material fact, the case should be sub think it is necessary to be alleged in the decmitted to the jury. If the plaintiff fails to laration." And in their charge to the jury produce any evidence of negligence on the respecting this matter the court further said: part of the defendant, or if, as it has been "We know of no law requiring a trolley car said, it is manifest as a conclusion of fact or to stop at the intersection of streets and wait by necessary inference that those acts which until a funeral procession has passed; nor the law regards as negligent have not been of any law giving to a funeral procession the shown, or if proof of contributory negligence right of way over cars or other vehicles or arise out of the testimony of the plaintiff in persons properly using a highway of this the first instance, it is the duty of the court state. If by courtesy such privilege has been to nonsuit the plaintiff. If, notwithstanding given by trolley cars and by others using the proof of the negligence of the defendant, it highway, such courtesy imposes no duty upobviously appears at the close of the testi. on the person extending the courtesy, nor mony that the injury complained of was due does it in any manner relieve such person to the fault or negligence of the plaintiff, it from all reasonable care and precaution in is the duty of the court to direct a verdict so using the highway as to prevent accident for the defendant. It is quite impossible to or injury. If you should find from the evi. lay down any well-defined rule by which to dence in this case that the uniform and condetermine whether the question of contribu tinuous usage or practice of the defendant tory negligence should be found, as a conclu company had been to stop its cars at crosssion of law, upon the facts presented; and ings and wait until a funeral procession

com

passed by, and that such usage was known to ful person would use. It appearing that the and relied upon by the driver, the plaintiff in plaintiff had knowledge of the existence of this case, at the time of the accident, we the alleged usage or practice on the part of say to you that such method of dealing with the defendant company, at and before the the public on the part of the company, and so time of the accident, evidence of such pracknown to the driver, may be taken into ac tice was properly admitted, in order that the count by you in estimating the degree of dill. jury might determine, from all the facts and gence required of the plaintiff in looking out circumstances surrounding the case, whether for an approaching car before he crossed the the plaintiff was, at the time of the accident, railway track; for in such case he might in the exercise of due care and caution. reasonably presume or infer the continuance What will constitute negligence or want of of that usage. To justify such presumption, due care may depend upon the observance or however, such usage must have been uniform nonobservance of a usage or practice knows and continuous. Even then the failure to to exist under particular circumstances. observe such usage would not amount to The eighth, ninth, and tenth assignments negligence on the part of the defendant of error were considered together. They pany. It would not relieve the driver of rea

each related to the admission of evidence on sonable care in making such crossing. He behalf of the plaintiff, against objections would have no right so to presume, if he ac. and exceptions, respecting “the condition of tually saw the car coming down upon him, travel on Tatnall street, whether said street or if by the reasonable use of his senses he was much used at its intersection with West might have seen its approach. It may be Fourth street, on or about the 27th day of stated that, as a general rule, no legal right April, 1904, between 2 and 4 o'clock in the can grow out of mere courtesy, however uni. afternoon." The matter of travel was not form and long-continued ; nor will such

pleaded. It was not necessary to do so in courtesy impose a legal obligation upon the order to give evidence of it. As tending to person extending it."

sbow the necessity for a greater degree of We will add that the word "custom" is

care on the part of the servants of the de sometimes used synonymously with "usage," fendant company at the time and place of meaning a course of dealing which derives the accident, the evidence was competent. its legal force from assent, express or im

The eleventh assignment of error relates plied; again, as something which by long to the action of the court in overruling the usage or judicial sanction has acquired the

said motions made by counsel for the de force of law, and is binding without regard fendant respecting the third count in plainto the question of assent. 29 A. & E. Ency. tiff's declaration. In practice, a variety of of Law, 367. Usage, in its most extensive counts often occurs in respect of the same meaning, includes custom; but in its narrow cause of action; the law not having set any er signification it refers to a general habit, limits to the discretion of the pleader, in mode, or course of procedure. 12 Cyc. 1030. this respect, if fairly and reasonably exerCustoms are of two kinds, general and par. cised. Steph. on Plead. 258. The pleadings ticular. Stimmel v. Brown, 7 Houst. (Del.) in a case are not evidence of the matters 219, 30 Atl. 996. A general custom peed not pleaded. And a count in a declaration upon be pleaded, but a custom obtaining only in a which issue has been taken and respecting particular district or neighborhood must be which no evidence is introduced at the trial pleaded. Templeman V. Biddle, 1 Harr. is harmless to the defendant upon the merits (Del.) 522. The alleged practice of the de of the case. In this case, the count was fendant company to stop its cars and permit abandoned by the plaintiff, and the jury a funeral procession to pass without inter were instructed by the court to disregard the ruption was not a custom or usage which count altogether. For any reason shown, had the force and effect of a law, binding the court did not err in overruling the said upon the defendant company. It was several motions respecting the said count course of conduct, if it existed, in the nature After a careful examination and consideraof an accommodation, indulgence, or cour tion of the record and briefs of counsel, and tesy, prompted, doubtless, by considerations in view of the conflict of testimony with of respect, and, if known among drivers in regard to some material facts in issue, it is funeral processions to exist, it was compe not obvious that there was such an entire tent to prove it, though it was not pleaded. absence of negligence on the part of the In the case of Martin v. B. & P. R. R. Co., servants of the defendant company on the 2 Marv. 123, 42 Atl. 442, it was held that, one hand, or that there was such contribuwhere a traveler knows that a flagman is tory negligence on the part of the plainhabitually stationed at a crossing, and upon tiff on the other, as that it was the duty of looking finds that the flagman is not at his the court to direct a verdict for the de post giving signals of danger, he has a right fendant. to assume that a train is not about to pass. Under all the circumstances surrounding But the absence or negligence of the flagman this case, it is the opinion of this court that will not excuse the person about to cross the question as to whose negligence, If any, he track from using every reasonable pre was the proximate cause of the accident, caution that an ordinarily prudent and care was properly submitted to the jury under

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