(1 Boyce, 202) BENSON v. WILMINGTON CITY RY. CO. New Castle. (Superior Court of Delaware. Feb. 8, 1910.)

ant, for the purpose of securing the interest on certain bonds, and that afterwards that was abandoned. He contends that this was his own money, which he paid to this defendant company for that purpose, and that aft-1. NEGLIGENCE (§ 1*) — NATURE AND ELEer the purpose for which it was paid had been abandoned he was entitled to receive the balance of the money back.

We will say to you that this receipt which was admitted in evidence may be explained by the defendant, and, while it has been given in the name of R. Brinser, the defendant can show, if he can, that it was given to him as treasurer of the Lancaster Investment Company; and it is for you to determine whether or not it was given to him as treasurer, and in return for the money which the defendant had received from the Lancaster Investment Company, or whether it was given to R. Brinser, because of his individual money which he had paid.

In order to determine this matter, which is left for you, you may examine all the testimony that has been admitted in the casethe receipt, the agreement, and any other facts, which throw any light upon it.

We will say, further, to you, that in rendering your verdict you should be governed by the preponderance or greater weight of the testimony. It is not a question of reasonable doubt, as in criminal cases; but it is a question on which side the weight of the testimony preponderates.

Verdict for plaintiff for $287.68.

"Negligence" is the want of such care as a reasonably prudent and careful man would use under similar circumstances.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.*

For other definitions, see Words and Phrases, vol. 5, pp. 4743-4763; vol. 8, p. 7729-7731.] 2. CARRIERS (§ 320*)-INJURIES TO PASSENGERS-ACTIONS QUESTION FOR JURY. In an action by a passenger for injuries received while alighting from the car, it is for the jury to determine whether there was any negligence that caused the accident, and, if there was, whether it was the negligence of defend

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

to recover, must show by a preponderance of the [ligence whatever, that at the time the plainevidence that her injuries were caused by the tiff attempted to alight from the car it was negligence of defendant, as alleged.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1307, 1314; Dec. Dig. § 318.*] 9. EVIDENCE (§ 598*)—Weight AND SUFFICI

ENCY.

The preponderance of evidence does not depend necessarily upon the number of witnesses, but upon the weight of testimony, and, in determining the weight and the credibility of the testimony, the apparent fairness, interest, or bias of the witnesses, their opportunity to see and know of the circumstances, their recollection connected therewith, and all other facts and circumstances that go to test the accuracy of their testimony, should be considered.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2450; Dec. Dig. § 598.*] 10. DAMAGES (8 95*)-PERSONAL INJURIESPASSENGERS.

In an action for injuries to a passenger by the negligent starting of defendant's car while she was alighting, she should be allowed such an amount in damages as would reasonably compensate her for the injuries sustained, including her pain and suffering, for any disability resulting from her injuries, and also for any necessary expenditure or charge incurred for medicine or medical attendance required on ac count of her injuries.

[Ed. Note. For other cases, see Damages, Cent. Dig. § 222; Dec. Dig. § 95.*]

Action by Augusta M. Benson against the

Wilmington City Railway Company. Verdict

for defendant.

not suddenly started, but was entirely at rest, that it did not start until after the injury had happened, and that the plaintiff's falling, or being thrown, from the car, was due solely to her own negligence.

It is admitted by the parties hereto that the Wilmington City Railway Company, the defendant in the above-stated case, at the time of the happening of the alleged injuries was, and still is, a common carrier, engaged in the business of transporting passengers for hire, operating certain lines of street railway in the city of Wilmington, New Castle county, and state of Delaware, by means and use of electricity, and, among other streets in said city, on, along, over, and upon a certain street called Claymont street, at or near Fifteenth street. It is also admitted that at the time of said alleged injuries the said plaintiff was a passenger of the said defendant company for hire, and that the car in which the said plaintiff was riding as aforesaid was being run and operated by the said defendant; also that the defendant was lawfully and rightfully on the said street.

The basis and gist of this action is the neg-
Negligence has

ligence of the defendant.

often been defined by the court to be the want of ordinary care; that is, the want of such care as a reasonably prudent and careful man would use under similar circumstances. It is for the jury to determine from the evidence whether there was any negligence that caused the accident, and, if there was, wheth

Action on the case to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant in causing the car on which the plaintiff was a passenger to be suddenly moved forward with a jolt or jar, thereby thrower it was the negligence of the defendant. To ing the plaintiff from the running board of the car while attempting to alight therefrom. At the trial the plaintiff was permitted to testify, against objections and exceptions, that her husband was blind and at the time in a hospital, and that she paid for the medicine which she got from the doctor.

Argued before PENNEWILL, C. J., and WOOLLEY and HASTINGS, JJ.

entitle the plaintiff to recover at all, it must have been shown to the satisfaction of the jury, by a preponderance of the evidence, that the negligence which caused the injuries complained of, if any there was, was the fault of the defendant company; and the jury must be further so satisfied that the negligence of the defendant, if any there was, which caused the plaintiff's injuries, was the

Julian C. Walker, for plaintiff. Walter H. negligence described in the plaintiff's declaraHayes and H. H. Ward, for defendant.

tion, viz., the sudden starting up of the car while the plaintiff was in the act of alighting therefrom. Such negligence is not to be presumed, but must be proven; and the burden of proof is upon the plaintiff.

PENNEWILL, C. J. (charging jury). This is an action brought by the plaintiff against the defendant to recover damages for personal injuries alleged to have been caused by If the defendant was guilty of no neglithe negligence of the defendant company. gence the plaintiff cannot recover, no matter The plaintiff contends that on July 7, 1909, what injuries the plaintiff may have received she was a passenger on one of the cars of the or what caused them. No presumption of defendant, and that by and through the neg- negligence, either on the part of the plaintiff ligence and carelessness of the defendant in or defendant, arises from the mere fact that suddenly starting up its said car, upon which the plaintiff was injured while alighting from the said plaintiff was then and there a pas- the defendant's car. If it shall appear to the senger, while she was in the act of alighting satisfaction of the jury that the plaintiff was from the said car at or near to Fifteenth and negligent herself, and that such negligence Claymont streets, in this city, she was vio- contributed to or entered into the accident, lently hurled or cast upon the street, and was and was operating at that time, then the badly hurt, wounded, injured, etc. The de- plaintiff cannot recover. In such case the fendant contends that it was guilty of no neg-plaintiff would be guilty of contributory neg

iigence, and where there is contributory negli- | number of witnesses, but upon the weight of gence the law will not attempt to measure the the testimony. proportion of blame or negligence to be attributed to either party. Where there is mutual negligence-that is, where the negligence of each party is operative at the time of the accident-no action can be sustained.

It is admitted by the defendant that the plaintiff was at the time of the accident a passenger on its car, and it is therefore necessary for the court to explain to you the respective duties of the company and the passenger. A street railway company, in letting its passengers on and off its cars, is bound to stop its cars, and wait a reasonable time for the passengers to get on or off at its usual stopping places, and a failure to do so would be negligence on its part. It is also its duty to exercise all reasonable care to secure the safety of the passengers. What would be such reasonable time and care would depend, of course, upon the conditions and circumstances of the particular case. A common carrier, such as a railway company, is required to exercise the highest degree of care and diligence that is reasonably practicable in securing the safety of its passengers. But, while the common carrier is held to strict care and prudence in the safe transportation of its passengers, yet it must be borne in mind that it is by no means an insurer of their safety, but is only responsible for its own negligence, in case of injury. On the other hand, there is a duty resting upon the passenger to act with prudence, and to use the means provided for his safe transportation with reasonable circumspection and care, and, if his negligent act contributes to bring about the injury complained of, he cannot recover. It is the duty of the passenger to exercise reasonable care in alighting from a car. A passenger familiar with the railway at the place of the accident, and the operation of the cars there, is bound to avail himself of such knowledge.

Where there is a conflict of evidence, as there is in this case, it is the duty of the jury to reconcile it if they can; but, if they cannot do so, then it becomes their duty to render their verdict in favor of that side upon which the evidence reasonably and clearly préponderates. In determining the weight of the testimony and the credibility of the witnesses, the apparent fairness, interest, or bias of the witnesses, their opportunity to see and know of the accident, their recollection of the circumstances connected therewith, and any and all other facts and circumstances that go to test the accuracy of their testimony.

If you are satisfied from the evidence that the plaintiff, while in the act of alighting from the car, was hurled or thrown to the ground and injured by the sudden starting of the car, as she has alleged in her declaration, and are also satisfied that the plaintiff herself was not at the time guilty of some negligence that contributed proximately to the accident, your verdict should be in favor of the plaintiff, and for such an amount as would reasonably compensate her for the injuries she sustained, including therein her pain and suffering, for any disability that has resulted from her injuries, and also for any necessary expenditure or charge incurred by the plaintiff, and for which she made herself liable, for medicine or medical attendance required on account of the injuries received in said accident.

If you are not satisfied that the injuries to the plaintiff were caused by the sudden starting of the car while she was in the act of alighting therefrom, as alleged by her, or if you should believe that they were caused by her own negligence and the careless manner in getting off the car, your verdict should be in favor of the defendant. Verdict for defendant.

(1 Boyce, 212) MERRITT & CO. v. LAYTON. (Superior Court of Delaware. Sussex. Feb. 17, 1910.)

1. CONTRACTS (§ 1*)-DEFINITION OF "CONTRACT."

A "contract" is an agreement between two do or not to do a particular thing. or more persons on sufficient consideration to

[Ed. Note. For other cases, see Contracts, Cent. Dig. § 1; Dec. Dig. § 1.*

The plaintiff in her declaration has alleged, as the negligence of the defendant company upon which she bases her action and relies for recovery, that the company suddenly started up the car when she was in the act of alighting therefrom. In order for her to recover, therefore, she must have satisfied you that her injuries were caused by such sudden starting up of the car when she was alighting therefrom. If the car was not suddenly started, but was stopped and at rest, at that time, she cannot recover. This is necessarily so, because, as we have said, there arises no presumption of liability on the part of the defendant from the mere fact that the plaintiff was injured. She cannot recover unless it has been shown to your satisfaction by the preponderance of the evidence that ner injuries were caused by the negligence of the defendant as alleged. The preponderance of evidence depends, not necessarily upon the For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

For other definitions, see Words and Phrases, vol. 2, pp. 1513-1534; vol. 8, pp. 7615, 7616.] 2. CONTRACTS (§ 278*)-ACTION ON CONTRACTPERFORMANCE BY PLAINTIFF NECESSITY OF SHOWING.

As a general rule a party cannot recover on a contract without showing performance of his part thereof.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1207-1215; Dec. Dig. § 278.*]

[Ed. Note. For other cases, see Work and Labor, Cent. Dig. § 27; Dec. Dig. § 12.*] 4. WORK AND LABOR (§ 27*) – CONSTRUCTING CELLAR-AMOUNT OF RECOV-level of the floor. We propose to remove the ERY-DETERMINATION. In an action for constructing a cellar, full compliance with the terms of a special contract, declared on, entitles plaintiff to recover the full amount of the agreed price; but, if he is entitled only to recover on a common count, compensation fixed by the contract, with evidence as to benefits derived from the work done, may be considered in determining its reasonable value.

With these instructions, it is now for you to say, from all the evidence in this case, whether the defendant is indebted to the plaintiff, and, if so, for what amount. Your verdict should be for that party in tended to show that two side chains, or a whose favor the evidence preponderates.

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes