Hearn v. Wilmington City Railway Co.

Citations

• 24 Del. 271
• 1 Boyce 271
• 76 A. 629
• 1910 Del. LEXIS 32

Syllabus

<p>Actions for Negligence—Expert Testimony—Application for View by Jury—Accident at Railway Crossing—Question of Negligence—Negligence never Presumed—Burden of Proof— Proximate Cause — Mutual Negligence— Care to Avoid Collision—Degree of Care Required— View to Crossing Obstructed—Jury Judges of Evidence—Conflict of Testimony— Measure of Damages.</p> <p>1. Expert testimony as to the effect of a fog on lights in a trolly car is not admissible, it being a matter of which men of ordinary experience and intelligence are competent to judge.</p> <p>2. Evidence that the car was late at the time of the accident, in order that the jury might draw an inference as to the speed of the car, held inadmissible.</p> <p>3. Application to have jury view the scene of the alleged accident should be made to the Court in presence of counsel in the case, but not before the jury.</p> <p>4. The fact of an accident, does not, in itself, if not within the control of the defendant, establish the fact that injuries complained of were caused by negligence.</p> <p>5. There can be no recovery for an unavoidable accident, or an accident not occasioned by negligence.</p> <p>6. WhethSr negligence exists in a particular case, and whose, when submitted to the jury, is a question of fact to be determined by the jury from the evidence.</p> <p>7. Negligence is never presumed. It must be proved; and the burden of proving it, rests upon the party alleging it.</p> <p>8. There is no presumption of negligence, either on the part of the driver of a team, or on the part of a street railway company from the mere fact of a collision between the team and a car of the company.</p> <p>9. Negligence of a motorman in charge of a car, or of the driver of a team, would be the negligence of his employer, respectively.</p> <p>10. Negligence is the want of such care as a reasonably prudent and careful man would exercise under similar circumstances.</p> <p>11. If the negligence of the driver of the team contributed to the all