Gismondi v. Peoples Railway Co.

Citations

• 25 Del. 577
• 2 Boyce 577
• 83 A. 136
• 1911 Del. LEXIS 91

Syllabus

<p>1. Street Railroads — Persons on Track — Death—Children—Negligence — Burden of Proof.</p> <p>In an action for the death of a child, struck by a street car, the burden is on plaintiff to establish that the child's death resulted from the defendant’s negligence, as alleged in the declaration.</p> <p>2. Negligence — Different Acts — Proof.</p> <p>Where evidence is offered to establish different acts of negligence alleged to have caused the injury sued for, the evidence must be sufficient to show to the jury’s satisfaction that one of such acts was the proximate cause of the accident.</p> <p>3. Negligence — Presumption—Burden of Proof.</p> <p>Negligence is never presumed merely from the fact that an accident occurred, but must be proved by the party alleging it.</p> <p>4. Negligence — “Inevitable Accident”.</p> <p>An accident which could not be prevented by the exercise of ordinary care and prudence is an “inevitable accident”, for which no recovery of damages can be had.</p> <p>5. Street Railroads — Injuries to Pedestrians — Children—Inevitable Accident.</p> <p>Where plaintiff’s decedent, a child of tender years, moved from a position of safety to a position of danger near or on the railroad track, on which a car was running, so suddenly as to make it impossible for the motorman to stop the car before the accident, or if the motorman, after he saw, or by the exercise of ordinary care could have seen, the child in a position of danger, did everything that a reasonably careful man would do under like circumstances to prevent the accident, the railroad company would not be liable.</p> <p>6. Street Railroads — Persons on Track — Duty of Railroad Company.</p> <p>A street railroad company must see that its servants operate its cars at a reasonable speed, that proper warning is given of the approach of a car, and that the speed is slackened, or the car stopped, if necessary, when danger is seen or known in time, to prevent accident.</p> <p>7. Street Railroads — Operation—“