Lenkewicz v. Wilmington City Railway Co.

Citations

• 23 Del. 64
• 7 Penne. 64
• 74 A. 11
• 1908 Del. LEXIS 1

Syllabus

<p>Personal Injuries—Passenger—Railway Company—Negligence— Due Care—Proximate Cause—Evidence; Negative or Positive.</p> <p>1. Negligence has been termed the want of ordinary care that is, the want of such care as a reasonably prudent and careful man would exercise under similar circumstances. It has been termed the failure to observe, for the protection of the interests of another, that degree of care, prudence and vigilance which the circumstances justly demand, whereby such other person suffers injury.</p> <p>2. There is no presumption of negligence, either on the part of the plaintiff or on the part of the defendant, from the mere fact that the plaintiff was injured by being struck by a car of the defendant company.</p> <p>3. If the negligence of the deceased was the proximate cause of his death or contributed thereto, his administrator cannot recover. And where there has been mutual negligence and the negligence of each was operative at the time of the accident, no action whatever can be sustained.</p> <p>4. The defendant, when he relies upon contributory negligence on the part of the plaintiff, to escape liability, must satisfy the jury by a preponderance of the evidence that contributory negligence on the part of the plaintiff was the proximate cause of the injury complained of.</p> <p>5. If the motorman saw, or, by the exercise of due care in looking oat ahead, could have seen the deceased in time to have stopped the car and thus have prevented the accident, the defendant would be hable. But if the deceased suddenly approached along side of, against, or in front of the car and was struck, knocked down and run over by the car, without any improper act or omission on the part of the motorman, and the latter applied the brakes of his car and did all he could to prevent the injury complained of, the plaintiff cannot recover.</p> <p>6. If the deceased moved from a position of safety to a position of danger, near or upon the track of the railway on which the car wa