Mr. Handy: If the Court please, yesterday morning I gave written notice to the counsel on the other side to produce certain rules of the railroad company, and I now ask for the production of those rules, because I propose first to put upon the witness stand the plaintiff, and to show by him that he was aware of this rule of the railroad company which prohibits a train's passing on a parallel track a passenger train stopped at a station receiving or discharging passengers. After proving his knowledge of the rule, our contention of law, well established, will be that he had a right to infer that this rule would be obeyed and to rely upon it in coming out from a railroad train.

Mr. Gray: We have the rules here, but I do not think this is the proper time to ask for them. He can ask for them when he has introduced the evidence under which the rules become pertinent and proper evidence in the case.

LORE, C. J. Suppose you put the witness on the stand, Mr. Handy, and bring him up to that point.

[1] Mr. Handy thereupon placed the plaintiff upon the stand, who testified fully respecting the cause of the accident in which he was injured and the nature and extent of his injuries. He then examined the plain

tiff as follows:

Q. Did you know at the time of this accident anything about rules of the Philadelphia, Wilmington & Baltimore Railroad Company prohibiting one train passing another while discharging or taking on passengers at a station?

(Objected to by Mr. Gray, of counsel for defendant, as leading and suggestive.)

Mr. Handy: I withdraw the question, and ask for the production of those rules under the notice served upon counsel for defendant. My friend says he has them here, and I insist that he either produce them or refuse to produce, in which event I will proceed to prove the same by secondary evi

dence.

Mr. Gray: I refuse to produce them, because counsel for plaintiff has proved nothing showing the relevancy of the rules in this case, and they are not admissible at present. When my learned friend has shown the relevancy of the rules, he can demand their production. I have them here waiting for him.

LORE, C. J. For what purpose do you ask for the introduction of the rules, Mr. Handy?

Mr. Handy: I have alleged in this narr. that the defendant company negligently ran a freight train by a passenger train which had stopped at a station to discharge passengers. I have proved that this was a passenger train of the defendant company,

was so discharging passengers a freight train passed it in violation of the rule of the company forbidding its servants doing that very thing. It is plainly relevant. LORE, C. J. You aver in your declaration that there were such rules?

Mr. Handy: No, sir; I have averred that they negligently ran this train. The rule is a matter of evidence, not a matter of pleading.

PENNEWILL, J. You mean that it is negligence for the company to move a train in violation of its own rules?

Mr. Gray: No, sir; we were instructed to produce the rule. I object to the rule being admitted in evidence or read to the jury, on the ground that it is not pertinent.

LORE, C. J. You ought to have made that objection before you handed in the book.

Mr. Gray: I did make the objection and the court overruled me and ordered me to produce, and I ask for an exception to that ruling of the court.

Mr. Handy: He is too late to ask for the exception now.

PENNEWILL, J. Did you object to the production of the rule because it was not pertinent?

LORE, C. J. Before you handed it to him? | Mr. Gray: Yes, sir.

PENNEWILL, J. I understood your objection was that counsel for plaintiff had not shown that a freight train was passing at the time?

(At the request of the court, the stenographer here reads from the stenographic report touching the matter in controversy.)

PENNEWILL, J. Do you mean, Mr. Gray, that the plaintiff has not shown that a train was approaching the station where the passenger train was discharging passengers? Mr. Gray: Yes, sir.

Q. How many years has it been since you have been employed as a foreman of a gang of men engaged in construction work on railroads?

A. From 1879 working on the Shenandoah Valley, and from that on the B. & O. and the Pennsylvania.

[4] After the physician who amputated the plaintiff's leg had testified to the nature and extent of the injuries, the following application was made:

Mr. Handy: If the court please, at this stage of the case, I ask that the plaintiff be permitted to amend his narr. The first

(At the request of Mr. Gray, Mr. Handy agreeing, the witness retires from the room while the rule is being read to the jury.) Mr. Handy: Under the subhead of "Movement of Trains," rule 114 of the defendant company is as follows:

said train of passenger cars to the station house of the said defendant at Riverside aforesaid, using due care and caution on his part, by means whereof the said plaintiff was greatly pained, crushed, wounded," etc. A variance has appeared between the declaration and the verbal evidence in this case, not material to the merits of the case, and by which the opposite party cannot be

[3] Q. Did you or did you not know on the 24th of November, 1903, of any rule of the defendant company with regard to other trains passing by a passenger train discharging passengers at a station?

This variance consists in evidence that the chief injury suffered by the plaintiff came from having his right leg run over by a freight car after he had been struck and knocked down. Plaintiff desires to amend the first count by inserting after the words

LORE, C. J. He is merely asking if he knew of the existence of a rule. We think that is admissible.

A. All that I know was what I have heard other people say. I have never read the book of rules. I did not have it and never used it. I have only heard railroad men say.

run over"; also to amend in a similar manner the other counts in the narr., and we ask that the proposed amendment shall be forthwith made by the prothonotary and that thereupon the trial shall proceed as if no variance had appeared. Rev. Code 1893, p. 849, c. 112, § 14; Beeber v. Walton & Whann Co., 7 Houst. 471, 475, 32 Atl. 777; Coverdale's Adm'r v. Simpson, 3 Pennewill, 269, 272, 52 Atl. 349.

LORE, C. J. We think he has a right to answer the question; that he has a right to state from what source he got his information as to the existence of rules.

the ground that it would prejudice the defendant in its defense, and that he was not prepared to go on at the present time, should the amendment be allowed.)

A. All I know is that they are not allowed for one train to pass another when the other one is discharging passengers. Q. Did you know that at that time? A. Yes, sir; at that time.

Q. How long have you been knowing that? A. Ever since I have been railroading. Q. You have been employed in connection with railroad work a good while, have you not?

A. Yes, sir.

Q. Constructing railroads, on the road?

declaration.

Section 24 of article 4 of the Constitution provides that "in civil causes, when pending, the Superior Court shall have the power, before judgment, of directing, upon such terms as it shall deem reasonable, amendments, in pleadings and legal proceedings, so that by error in any of them, the determination of causes, according to their real merits, shall not be hindered." The court have uniformly acted upon that in a broad and liberal

sense.

While the court are clear as to the plain

15, 1908.)

1. JUDGMENT (§ 250*) CONFORMITY To PLEADINGS.

In a suit for services, plaintiff's right to recover is limited to services specified in a bill of particulars filed by him.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. § 250.*]

2. WORK AND LABOR (§§ 1, 6, 7*)-IMPLIED PROMISES TO PAY.

Generally, where work and labor are rendered for one and he receives the benefit thereof, the law implies a promise to pay the reasonable value thereof, though the work was not requested; but no promise will be implied as between near relatives or friends as to services which are usually rendered gratuitously.

[Ed. Note.-For other cases, see Work and Labor, Cent. Dig. §§ 1, 2, 11-22; Dec. Dig. §§ 1, 6, 7.*]

3. WORK AND LABOR (§ 4*)-IMPLIED PROMISES TO PAY.

Where services are rendered gratuitously, with no intention to charge therefor, compensation cannot be recovered.

[Ed. Note.-For other cases, see Work and Labor, Cent. Dig. §§ 3-7; Dec. Dig. § 4.*] 4. LIMITATION OF ACTIONS (§ 148*)-REMOVAL OF BAR-ACKNOWLEDGMENT OF DEBT SUFFICIENCY.

If a debtor on account of personal services within three years before suit acknowledges the debt as an existing one, the bar of limitations is removed; but mere acknowledgment, without express promise to pay, is insufficient. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 597-603; Dec. Dig. & 148.*]

5. EVIDENCE (8_588*)-PROVINCE OF JURYCONFLICTING EVIDENCE.

Where the evidence appears to be conflicting, the jury should reconcile it if they can; but, if they cannot, they should accept that part deemed worthy of credit and reject the remainder, with due regard to the interest of the witnesses, their opportunities to know whereof they testify, and all other eircumstances aiding in a conclusion as to their credibility and the weight which should be given to their testimony.

[Ed. Note.-For other cases. see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.*] 6. TRIAL (§ 306*)-DUTY OF JURY.

In determining in whose favor the evidence preponderates, the jury should consider only the evidence heard in the cause.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 731-742; Dec. Dig. § 306.*]

ceased, to recover for certain services alleged to have been rendered by the plaintiff to the deceased during his lifetime, from January 28, 1901, to March 27, 1906, a period of 268 weeks and 2 days, at $2 per week, making the sum of $536.57.

[1] The services for which suit is brought are specified in the bill of particulars filed by the plaintiff, and his right of recovery is limited to these services only.

[2, 3] Where one person at the request of another performs work and labor without any agreement as to the price to be paid, the law implies a promise to pay whatever such work and labor are reasonably worth. Where work and labor are rendered for one, and he receives the benefit of the same, the law implies a promise on his part to pay for such work and labor what it is reasonably worth, and this is so although he may not have requested the other party to do the work. These rules as to implied promises on the part of the person for whom such work and labor may have been done are subject to certain exceptions and qualifications. In many cases where the parties are near relations, the law will not imply a promise or obligation to pay for services which are usually rendered to each other gratuitously by near relations. So, too, a promise to pay is not implied by law where the services are rendered by one friend to another under such circumstances as warrant the presumption that they were intended to be rendered gratuitously. Where services are rendered gratuitously, with no intention of charging for the same, the party cannot subsequently recover compensation for such gratuitous service. Work and labor of the character set forth in the plaintiff's bill of particulars are proper subjects of a book account, under our statute, but the performance of such work and labor and the value thereof may be proved by other evidence than a book account.

[4] Our statute of limitations provides that no action of this character shall be brought after the expiration of three years from the accruing of such cause of action,

[Ed. Note.-For other cases, see Rape, Cent. Dig. 2; Dec. Dig. § 2.*] 2. RAPE (§§ 6, 36*)—FORCE.

We leave it to the jury to say whether it is proved in this case that the said Thomas W. Johnson, in his lifetime, made an acknowledgment of a subsisting demand against him for that part of the work and labor of the plaintiff which he alleges to have been performed more than three years before the commencement of the action, and if the jury so find, the bar of the statute as to that part of the claim would be removed. But if no such acknowledgment was made by the said Johnson, there can be no recovery for that part of said claim.

[5] Where, as in this case, the evidence is conflicting, you should reconcile it if you can, and if you cannot do so you should accept that part of it which you deem worthy of credit and reject that part of it which you deem unworthy of credit, having due regard to the interest of the witnesses in the result of this suit, their opportunities of knowing that of which they have testified, and all other circumstances which may aid you in reaching a conclusion as to their credibility and the weight which should be given to their testimony.

[6] Your verdict should be in favor of that party in whose favor you may find is the preponderance or greater weight of the testimony. You should determine this case upon the testimony which you have heard in this cause and upon nothing else, and should not suffer your judgment to be influenced or warped in any manner by any thing which you may have heard from any other person than the witnesses who have testified in this trial.

Rape is the carnal knowledge of a woman against her will, and force, or putting her in great fear, is an essential element, whether the crime is committed on a female over or under the age of consent; and upon proof of penetration of a female of the age of consent, the burden is on the prosecution to prove force or fear, but the law implies force from connection without consent.

[Ed. Note. For other cases, see Rape, Cent. Dig. §§ 6, 46, 47; Dec. Dig. §§ 6, 36.* For other definitions, see Words and Phrases, vol. 7, pp. 5919-5925; vol. 8, p. 7778.] 3. RAPE (§ 7*)-EMISSIO SEMINIS "CArnal KNOWLEDGE."

"Carnal knowledge," sufficient to constitute rape, is shown by penetravit, without emissio seminis.

[Ed. Note.-For other cases, see Rape, Cent. Dig. 87; Dec. Dig. § 7.*

For other definitions, see Words and Phrases, vol. 1, p. 975.]

Joseph Sigerella was indicted for rape. Verdict of guilty, and the judgment was affirmed on appeal.

See 1 Boyce, 157, 74 Atl. 1081.

Argued before LORE, C. J., and BOYCE, and PENNEWILL, JJ.

Andrew C. Gray, Atty. Gen., and Josiah O. Wolcott, Deputy Atty. Gen., for the State. Hugh M. Morris, for defendant.

Indictment found under section 10, c. 127, Revised Code, providing that "every person who shall commit the crime of rape, or who shall carnally know and abuse a female child under the age of seven years, shall be deemed guilty of felony and shall suffer death."

The prosecuting witness was a child 11 years of age.

PENNEWILL, J. (charging the jury). Gentlemen of the jury: It is charged in this indictment that Joseph Sigerella, the prisoner at the bar, on the 2d day of January, 1908, in Wilmington hundred, violently and feloniously did make an assault on one Mil

forcibly and against her will feloniously ravish and carnally know. The offense charged is that which is commonly known as rape.

STATE V. SIGERELLA. (Court of Oyer and Terminer of Delaware. New Castle. March 17, 1909.)

1. RAPE (§ 2*)—STATUTES-REPEAL.

[1] We have been asked by the defendant to direct you to return a verdict of not guilty, for the reason that the law respecting the crime of rape prior to the year 1889 was repealed by an act passed by the Legislature in that year, entitled "An act for the better protection of female children," being chapter 686, vol. 18, Laws of Dela

ware.

actual or presumptive, is, in legal contemplation, an essential and indispensable element of rape, whether it be committed on a female over or under the age of consent. Upon proof of carnal penetration of a female of the age of consent, that is, of seven years of age or more, in this state, the burden is upon the prosecution to further prove to the satisfaction of the jury beyond a reasonable doubt, that the penetration was consummated by force and against her will, or by putting her in great fear and terror, before a conviction of rape can be had.

A rape can only be committed against the will of the female and by force, or by putting her in great fear and terror; and if sexual connection is obtained by milder means, or in any other way with the consent or the silent submission of the party, it cannot constitute the crime of rape in contemplation of law. When the fact appears that sexual connection has been had against the consent of the woman, the law implies force.

[3] Formerly, in a prosecution for rape, it was necessary for the state to prove not only an actual penetration but also the actual emissio seminis, in order to constitute a carnal knowledge; but it is now the law of this state that in a prosecution for rape, it should not be necessary to prove the actual emissio seminis, in order to constitute a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of an actual penetravit.

had been assaulted as charged in the indictment. In this connection, you may take into consideration the place and time of the alleged assault, the proximity of other people, the absence of any proof as to any outcry or other noise made by the prosecuting witness, or of any complaint made by her for some time after the assault. But in passing upon the weight and effect of such circumstances, you should also carefully consider the tender years of the prosecuting witness, her condition, environments and relation with her mother and other people with whom she was living at the time.

In cases where the evidence is conflicting, as in this case, it is the duty of the jury to reconcile such conflict if they can, but if they cannot do so, they should accept that testimony which they think under all the facts and circumstances of the case is most worthy of credit and belief.

The good character of the accused when proved is to be taken in connection with all of the other evidence in the case, and is to be given just such weight as in the judg ment of the jury it is entitled to.

If you believe from the evidence in this case beyond a reasonable doubt that the prisoner did have sexual intercourse with the prosecuting witness at any time within the month of January of last year, and that such sexual intercourse was had by force and against the consent of the prosecuting witness your verdict should be guilty.

female.

In determining whether the crime of rape, with which the prisoner is charged in this case, was committed, you should carefully consider all the testimony in the case; you may consider whether the child upon whom the assault is alleged to have been commit

verdict should be not guilty. But such a doubt must not be a fanciful, vague, speculative or mere possible doubt, but a reasonable, substantial doubt remaining in your minds after a careful consideration of all

the evidence, and such a doubt as reasonable, fair-minded and conscientious men would

entertain under all the facts and circumstances of the case.

Verdict, guilty.