We feel compelled under the facts of this case, and under the provision of the act relied upon by the defense, to instruct the jury to return a verdict for the defendant. Verdict for the defendant. bility. In general, but not uniformly, it has | employer, to take such precautions as would been held that, where the duty of control | avert the danger." over the streets is imposed upon a municipal corporation, there is an implied liability arising from default in the performance of such duty. Such has been the construction given by the courts of this state to the charter of the city of Wilmington as it existed prior to the amendment of April 24, 1889, but these cases dealt only with the implied liability of the city under a charter which imposed upon it certain duties. * * [1] This is the principle, unaffected by the statute, upon which the Anderson Case was decided. And if this principle has not been modified by subsequent legislation the case before us is one for the jury. It remains, therefore, for the court to consider what, if any, has been the effect of the said act of April 24, 1889. It is not the duty of the court to consider either the wisdom or policy of this act. The court in the Ewing Case further said: "The charter, as it now is, and was at the time of the alleged injury in this case, is express as to the circumstances under which the city shall and shall not be liable. 'If,' as is said in Shearman and Redfield on Negligence, 124, 'the statute, either expressly or by necessary intendment, enacts that the corporation shall not be subject to a liability, there is the end of the matter.'" The effect of the statute and of this decision is to relieve the city from liability for all injuries by reason of defects in footways, not caused by the city or its authorized agents. [2] Were the plumbers, the licensees, or their servants, agents of the city? We are of the opinion they were not, and also that the excavation, obstruction or other defective condition of the footway complained of, was not caused by the city or any of its authorized agents. The case of Dorlon et al. v. City of Brooklyn, 46 Barb. (N. Y.) 604, is very much in point. There the court said: "The license issued to Reed by the water commissioners did not make him a public officer of the city, not did the permission to connect the waste pipe, from the house, with the sewer, establish any such relation, between him and the defendant, as would render it responsible for injuries resulting from his negligence. This is not the work of the city, but of private individuals. It is done for their benefit, and at their expense. The license can in no sense be considered an employment by the city, of the plumber receiving it. In this case the acts of the plumber, in digging the excavation and placing the earth in the street, were lawful, as he had obtained permission to make the connections; but as these were obstructions in the street which necessarily rendered it unsafe for night travel, it was his duty, or that of his * (4 Boyce, 490) HASTINGS et al. v. LANKFORD. TRESPASS (§ 41*) — PLEA OF OWNERSHIP in trespass de bonis asportatis should be strick- Action by Walter E. Hastings and another, administrators of Charles G. Calloway, deceased, against Noah E. Lankford. Motion to strike out a plea. Motion granted. JJ. Argued before CONRAD and WOOLLEY, Charles S. Richards and Charles W. Cullen, both of Georgetown, for plaintiffs. Robert C. White and James M. Tunnell, both of Georgetown, for defendant. Action of trespass de bonis asportatis, to recover for the value of a horse alleged to be the property of the estate of Charles G. Calloway, deceased, which horse it was contended the defendant wrongfully appropriated to his own use. Among the pleas filed was a special plea alleging property in the defendant. Counsel for the plaintiff moved to strike out the special plea of property in the defendant, as amounting to the general issue. WOOLLEY, J. (delivering the opinion of the court). The special plea, to which the plaintiffs' motion is addressed, is a special plea of property in the defendant himself, and was filed, as contended by his counsel, upon the authority of Covington v. Simpson, 3 Pennewill, 269, 274, 277, 52 Atl. 349, in which the court held that in such an action as this, the defendant may controvert the possession and title of the plaintiff under the general issue, but cannot prove ownership in "some one else" to justify the trespass, unless such justification be specially pleaded. A plea of property in the defendant, filed to a narr. in trespass de bonis asportatis, is not so much a justification for the trespass as it is a denial of the trespass itself, because of the impossibility in law of a party committing trespass upon property of his own and within his own lawful possession. A plea of property in a stranger, however, is a plea of justification, as it admits the taking, that is, admits the trespass, and justifies it by denying injury to the plaintiff because of the title to the property taken being in another. Such a plea, unlike one in which a defendant pleads property in himself, confesses the trespass and seeks to avoid it by matter of excuse or justification. As such matter of justification of necessity admits the trespass, it, of course, cannot be proven under the general issue, for by the general issue the trespass is denied. In the case of Covington v. Simpson, supra, where evidence of ownership of the property in a third person was offered under the general issue, the language of the court in refusing the evidence, must be construed with reference to the particular situation before it, and in saying that the defendant cannot prove ownership or possession in "some one else" to justify the trespass, unless by special plea, it must be considered that the court did not mean some one other than the plaintiff, but meant some one other than the parties to the action. As it is equally impossible for a defendant to commit trespas upon property of which he is the owner, as it is for a plaintiff to suffer trespass upon property of which he is not the owner, eliminating from the present consideration all questions of special property, so it is equally proper for the defendant, in denying the trespass under the general issue, to assert ownership in himself as it is under the general issue for him to deny the trespass by controverting the ownership of the plaintiff. The plea of property in the defendant, therefore, amounts to the general issue, and the motion to strike out the plea is allowed. Trial and verdict for plaintiffs. (4 Boyce, 492) BROWN v. MAYOR AND COUNCIL OF CITY OF WILMINGTON. (Superior Court of Delaware. New Castle. Jan. 16, 1914.) 1. MUNICIPAL CORPORATIONS (8 705*)-USE OF STREETS-CARE REQUIRED. tributed to the accident in which his injuries were received, he cannot recover. Vehicles and pedestrians have equal rights in the use of public streets, and each must ex-§ ercise reasonable care to prevent collisions. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. 705.*] 2. MUNICIPAL CORPORATIONS (§ 705*)-POLICE PATROL-NEGLIGENCE-LIABILITY, Where the police patrol wagon was run at a dangerous speed under the circumstances, or failed to give plaintiff, a pedestrian, timely warning of its approach, whereby plaintiff was injured, and the plaintiff was in the exercise of due care, the city is liable. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.*1 3. MUNICIPAL CORPORATIONS (8 705*) — INJURY TO PEDESTRIAN-CONTRIBUTORY NEGLIGENCE-LIABILITY. Where the negligence of plaintiff, a pedestrian, injured by the police patrol wagon, con [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1515-1517; Dec. Dig. § 705.*]' 4. MUNICIPAL CORPORATIONS (§ 706*) JURY TO PEDESTRIAN-INTOXICATION-QUESTION FOR JURY. - IN pedestrian, injured by an automobile, may be Voluntary intoxication of the plaintiff, a considered by the jury in determining whether, at the time of the accident, he was taking such care of his safety as would be required of a reasonably prudent man under the circum stances. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.*] 5. NEGLIGENCE (§ 83*) — LAST CHANCE Doc TRINE. plaintiff may recover, notwithstanding some In an action for personal injuries, the negligence on his part, if it was the negligence of the defendant alone that was the immediate cause of the accident; in other words, if, notwithstanding any previous negligence of the plaintiff, the defendant could have prevented the accident by the use of ordinary care. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. § 83.*] 6. MUNICIPAL CORPORATIONS (8 705*) STREETS-VEHICLES-INCAPACITATED PEDES TRIANS-NEGLIGENCE. One driving or operating a vehicle is bound to consider the lack of capacity of those in his way, such as children, or blind or drunken persons, to care for their safety, when such incapacity is known, or should have been known by him by the exercise of reasonable care. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1515-1517; Dec. Dig. § 705.*] 7. MUNICIPAL CORPORATIONS (§ 705*)-UN、 AVOIDABLE ACCIDENT-VEHICLES. Where a pedestrian, injured by an automobile, was injured by falling into the side of the vehicle, and not by being struck, the case is one of unavoidable accident, and the pedestrian cannot recover. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. 705.*] 8. NEGLIGENCE (§ 121*)-BURDEN OF PROOF→→→ EVIDENCE. In an action for personal injuries, the burden is on the plaintiff to show that defendant was negligent. [Ed. Note.-For other cases, see Negligence, Cent. Dig. 88 217-220, 224-228, 271; Dec. Dig. 121.*] 9. TRIAL (§ 306*)-CONFLICTING EVIDENCEREVIEW BY JURY. Where the testimony is conflicting, the jury should endeavor to reconcile it, and, if this cannot be done, give their verdict upon the testimony of the greatest weight and credence, in doing which the witness' means of knowledge of the facts, their intelligence, apparent truthfulness, and fairness, and facts or circumstances shown by evidence with respect to the witnesses, must be considered. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 731, 742; Dec. Dig. § 306.*] 10. DAMAGES (§ 95*) — PERSONAL INJURIES MEASURE OF DAMAGES. In an action for personal injuries, the damages should be such as will reasonably compensate plaintiff for his proven expenditures for medical services, and for the injuries he has sustained and proved, including therein his loss of time and wages, his pain and suffering in Argued before CONRAD and Caleb E. Burchenal and W. W. Knowles, both of Wilmington, for plaintiff. Daniel O. Hastings, City Sol., and William S. Hilles, both of Wilmington, for defendant. (2) As to the consideration to be given if plaintiff was using the bed of the street in a state of intoxication at the time of the accident, Heinel v. People's Railway Co., 6 Pennewill, 437, 67 Atl. 173. WOOLLEY, J. (charging the jury). Gentlemen of the jury: This is an action instituted by James M. Brown, the plaintiff, against the mayor and council of Wilmington, the defendant, to recover damages for personal injuries which he alleges he sustained by being run into and knocked down by an automobile driven and operated by one of the defendant's servants. In support of this action the plaintiff claims, that on the evening of April 20, 1912, he was walking southwardly with a throng of people on the roadway of King street, near the westerly curb thereof, between Third and Second streets in the city of Wilmington; that while in the exercise of proper care and caution on his part, the defendant, by its servant, drove Action on the case (No. 61, March term 1913) to recover damages for personal injuries alleged to have been sustained by the plaintiff by being run into and knocked down by an automobile (being the police patrol) driven and operated by one of the defendant's servants, on King street between Sec-its police patrol, being an automobile or auto ond and Third, in the city of Wilmington. The facts appear in the charge of the court. car, down the street upon which he was lawfully and carefully walking, at a high and dangerous rate of speed, without giving to Counsel for plaintiff in support of their him any warning of its approach, and thus prayers cited: negligently and recklessly ran into and upon him, causing the injuries for which he now seeks damages. (1) As to the right of a traveler on foot to use a public street the same as a vehicle of any kind, and the degree of care required of a driver of an automobile, Hannigan v. Wright, 5 Pennewill, 537, 63 Atl. 234; Simeone v. Lindsay, 6 Pennewill, 224, 65 Atl. 778. (2) As to care, speed and warning in the operation of an automobile upon public streets of a city, Lampe v. Jacobsen, 46 Wash. 533, 90 Pac. 654. (3) As to the correlative rights, care and duty of a traveler on foot and the owner of an automobile or person operating it under owner's direction on a public street, Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224, 3 L. R. A. (N. S.) 345, 4 Ann. Cas. 396. (4) As to care required in driving an automobile, if undertaking to pass another on the street, going in the same direction, Simeone v. Lindsay, 6 Pennewill, 224, 65 Atl. 778. The defendant denies liability in this action and maintains that, instead of its servant running its police patrol into the plaintiff, the plaintiff in fact ran into the police patrol, and that if the injuries to the plaintiff were the result of negligence, the negligence was not that of the defendant, but was the negligence of the plaintiff himself. It is admitted that the mayor and council of Wilmington, the defendant, owned and through its servant, operated the motor vehicle, known generally as a police patrol, at the time the plaintiff received his injuries. Such being the case, the acts of the driver of the patrol became the acts of the defendant, and negligence on his part in operating the machine, if any, becomes the negligence of the defendant, for which the defendant may be held liable in damages. [1] It is admitted that King street, upon which the accident in question occurred, is a public road or highway. A public highway is open in all its length and breadth to the reasonable, common and equal use of the people, on foot and in vehicles. The owner of an automobile has the same right as the owner of other vehicles to the use of the highway, and like them he must exercise care and caution for the safety of others. (5) As to measure of damages for personal Injuries to a foot traveler on a public street resulting from negligence in operating an automobile, Simeone v. Lindsay, 6 Pennewill, 224, 65 Atl. 778; Murphy v. Hughes Bros. & Bangs, 1 Pennewill, 250, 40 Atl. 187; Ray v. D. S. Steel Co., 2 Pennewill, 525, 47 Atl. 1017; Boyd v. Blumenthal & Co., 3 Pennewill, 564, 52 Atl. 330; Winkler v. P. & R. R. R. Co., 4 Pennewill, 80, 53 Atl. 90. Counsel for defendant in support of their the use of the public streets of a city as a prayer cited: A traveler on foot has the same right to vehicle of any kind. In using any part of (1) As to the duty of traveler on foot in a the streets all persons are bound to the expublic street to use reasonable care and his ercise of reasonable care to prevent collisions senses to avoid injury, Cecchi v. Lindsay, 1|and accidents. Such care must be in proporBoyce, 189, 75 Atl. 376. tion to the danger or the peculiar risks in each case. Where one undertakes to pass another on the highway, going in the same direction, he must take reasonable care to exercise that right, so as not to injure another, and is liable for the consequences of his negligence. It is the duty of the person operating an automobile or any other vehicle, upon the public streets of a city to use ordinary care in its operation, to move at a rate of speed reasonable under the particular circumstances and cause it to slow up or to stop if need be, where danger is imminent and could, by the exercise of reasonable care, be seen or known in time to avoid accident. Greater care is required at street crossings and in the more crowded streets of a city than in the less obstructed streets in the open or suburban parts. There is a like duty of exercising reasonable care on the part of the pedestrian. The person having the management of the vehicle and the traveler on foot are both required to use such reasonable care as the circumstances of the case demand, an exercise of greater care on the part of each being required where there is an increase of danger. The right of each must be exercised in a reasonable and careful manner, so as not unreasonably to abridge or interfere with the rights of the other, and both are bound to the reasonable use of all their senses for the prevention of accident, and the exercise of all such reasonable caution as ordinarily careful and prudent persons would exercise under like circumstances. Grier v. Samuel, 86 Atl. 209, 211. The basis of this action is negligence. The negligence charged by the plaintiff to the defendant, is not that it was operating its police patrol at a rate of speed in excess of that allowed by statute, for by the statute the speed of motor vehicles used by the police in the performance of duty, is exempted from the limits prescribed for motor vehicles generally. Laws of Del. vol. 25, c. 120, § 14. The negligence charged to the defendant is simply that it operated its police patrol at a high and dangerous rate of speed, when considered with regard to the place and the circumstances of the occasion, and without giving the plaintiff timely warning of its approach, whereby and by reason of which he was injured. [2] If the defendant's servant, at the time of the accident, was operating its car at a high and dangerous rate of speed under the circumstances, or failed to give the plaintiff timely warning of its approach, by reason of which the injuries were inflicted, and the plaintiff at the time was on his part in the exercise of due care and caution, and free from negligence that contributed to the accident, the servant of the defendant was negligent, the defendant is liable, and your verdict should be for the plaintiff. [3-5] If the negligence of the plaintiff, however, contributed to and entered into the accident at the time the injuries were received, was also guilty of negligence, because in such case the plaintiff himself would be guilty of contributory negligence. Simeone v. Lindsay, 6 Pennewill, 224, 227, 65 Atl. 778. Voluntary intoxication of the plaintiff may be considered by the jury in determining whether at the time of the accident he was taking such care of his safety as would be required of a reasonably prudent man under the circumstances. Heinel v. People's Ry. Co., 6 Pennewill, 431, 67 Atl. 173. The plaintiff, however, would be entitled to recover notwithstanding there had been some negligence on his part, if it was the negligence of the defendant alone that was the proximate or immediate cause of the accident, in other words, if notwithstanding any previous negligence of the plaintiff the defendant could have prevented the accident by the use of ordinary and reasonable care. Simeone v. Lindsay, 6 Pennewill, 224, 227, 65 Atl. 778. [6, 7] It is a rule of law that one driving or operating a vehicle is bound to consider the lack of capacity of those in his way to care for their own safety, when such incapacity is known or should have been known by him, and the law exacts greater care toward those who are unable to care for themselves, as children, blind persons and in fact drunken persons, when such incapacity is known or should have been known by the one driving or operating a vehicle. If, however, in this case you find from the testimony that at the time of the accident complained of, the plaintiff was intoxicated, and that the driver of the police patrol did not know it or by the exercise of reasonable care on his part would not have known it or would not have known he was so intoxicated as to be unable to take ordinary care of himself, and if you shall further find that the accident occurred not by the patrol striking the plaintiff, but by the plaintiff falling into the side of the patrol, the case then becomes one either of pure accident or contributory negligence, and in either event, your verdict should be for the defendant. [8] A pure accident without negligence on the part of the defendant is not actionable, and if you should believe that it was of such character it would come under the head of unavoidable accident and the plaintiff cannot recover. To enable the plaintiff to recover at all in this action, he must have shown to your satisfaction by the weight of the evidence that the negligence which caused the accident, if there was any negligence, was the negligence of the defendant. The burden of proving such negligence is upon the plaintiff, and the defendant can be held liable only for such negligence as constitutes the proximate or immediate cause of the injury. [9] When the testimony is conflicting, you should endeavor to reconcile it, if possible, so that the whole may harmonize. If this cannot be done, then it becomes your duty ue of the testimony on the respective sides, to be most worthy of belief, in view of the inand give your verdict to that side upon which telligence, interest, and bias of the witnesses. the testimony is of the greatest weight or [Ed. Note.-For other cases, see Trial, Cent. preponderance and most worthy of credit. In Dig. §§ 332-335, 338-341, 365; Dec. Dig. §§ 139, 140.*] estimating such weight you are to consider the witness' means of knowledge of the 3. PRINCIPAL AND AGENT (§ 103*)-AUTHORfacts about which they have spoken, their Whether a mother, selling personalty at intelligence, apparent truthfulness and fair-public auction, authorized her son to make a ness, and any other facts or circumstances shown by the evidence with respect to the witnesses that disclose the reliability of their statements. ITY OF AGENT EVIDENCE. warranty, may be implied from the general authority which she permitted him to exercise in managing the sale. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. 88 278-293, 353-359, 367; Dec. Dig. § 103.] 4. AUCTIONS AND AUCTIONEERS (§ 8*)—WABBANTY-RELIANCE BY BUYER. asserted at the sale that a horse was good A seller at public vendue, who affirmativeand sound, except for a visible injury, and commended its good qualities, did not thereby warrant it as to soundness; but if, at the time of the sale, he made representations as to its soundness as an inducement to a sale, and the buyer relied thereon, there was a warranty of soundness, whether the seller knew of any unsoundness. If you are not satisfied from the weight of the testimony that the injuries to the plaintiff were caused by the negligent running and operation of the machine, as alleg-ly ed, your verdict should be in favor of the defendant, and if you believe that there was any negligence on the part of the plaintiff operating at the time of the accident which contributed to the injuries he received, your verdict likewise should be in favor of the defendant. Or if you believe that plaintiff's injuries were the result of pure accident, and could not have been prevented or avoided by the exercise of reasonable care on the part of the defendant, your verdict should be in favor of the defendant. [10] If you should find for the plaintiff your verdict should be for such a sum as will reasonably compensate him for his proven expenditures for medical services, and for the injuries he has sustained and proved, including therein his loss of time and wages, his pain and suffering in the past, and such as may come to him in the future, resulting from the accident, and also for any perma. nent injuries shown by the evidence to have been received, and for such sum as you be lieve will cover his pecuniary loss on account of any impaired ability to earn a living in the future as a result of such accident. Verdict for plaintiff. (4 Boyce, 499) DIETRICH v. BADDERS et al. (Superior Court of Delaware. Nov. 26, 1913.) 1. SALES (8 428*) - DEFENSES WARRANTY. New Castle. BREACH OF 20 Del. Laws, c. 588, providing that want or failure in whole or in part of the consideration of bills and notes may be shown as a defense, when the action is between the original parties, a buyer of a horse warranted to be sound may, when sued on the note for the price by the payee, rely on breach of warranty and recoup in damages. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 1214-1223; Dec. Dig. § 428.*] 2. TRIAL (§§ 139, 140*) WEIGHT OF EVIDENCE-CREDIBILITY OF WITNESSES-QUESTION FOR JURY. [Ed. Note.-For other cases, see Auctions and § 8.*1 Auctioneers, Cent. Dig. 88 25-40; Dec. Dig. 5. SALES (284*)-CONTRACTS-WARRANTY— BREACH. A warranty of the soundness of a horse sold is breached, where a disease not visible and palpable at the time of sale impaired its usefulness, whether known to the seller or not; but the warranty is not breached where, subsequently to the sale, the horse becomes diseased while in the possession of the buyer. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 803-805; Dec. Dig. § 284.*] 6. SALES (§ 262*)—WARRANTY-KNOWLEDGE OF BUYER. edge of its qualities at the time of the sale, A buyer of a horse, who had full knowland who relied on his own judgment and observation, and not on a warranty, cannot defeat a recovery of the price on the ground of breach of warranty. [Ed. Note.-For other cases, see Sales, Cent. Dig. 88 736-739; Dec. Dig. § 262.*] 7. SALES (8 439*) — BREACH OF WARRANTY BURDEN OF PROOF. A buyer of a horse, who seeks to defeat a recovery of the price on the ground of breach of warranty of soundness, must prove a warranty of soundness made just before or at the time of sale, and that unsoundness existed at the time of sale. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1258-1260; Dec. Dig. § 439.*] 8. SALES (§ 363*)-CONTRACTS-RESCISSIONDELIVERY-QUESTION FOR JURY. Whether a buyer of a horse redelivered it to the seller, so as to authorize a rescission of the contract of sale, is for the jury, in view of the circumstances showing the seller's change of residence between the time of sale and the time of the attempted return by the buyer. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 1064; Dec. Dig. § 363.*] 9. SALES (§ 126*)-CONTRACTS-RESCISSIONREASONABLE TIME. The jury are the exclusive judges of the Where the terms of a contract of sale are weight of the testimony and credibility of the in dispute until fixed by the jury, the question witnesses, and must, if possible, reconcile the whether the buyer rescinded within a reasonatestimony; but, if that cannot be done, they ble time is for the jury under the circumstancmust accept that testimony which they consideres of the case, though what constitutes a rea |