Neely v. Peoples Railway Co.

Citations

• 27 Del. 457
• 4 Boyce 457
• 89 A. 211
• 1913 Del. LEXIS 68

Syllabus

<p>1. Negligence—Nature and Elements.</p> <p>Negligence is the want of such care as a reasonably prudent and careful man would exercise under similar circumstances.</p> <p>2. Negligence—Presumptions and Burden of Proof.</p> <p>The burden of proving negligence is upon the party alleging it.</p> <p>3. Negligence—Contributory Negligence of Person Injured.</p> <p>If an injury was the result of the negligence of both plaintiff and defendant, plaintiff could not recover.</p> <p>4. Municipal Corporations—Streets—Use as Highway.</p> <p>Persons lawfully on a public street have a right to its use without molestation, and, exercising reasonable care, they have a right to assume that the street is in proper condition, unless they observe otherwise.</p> <p>5. Street Railroads—Excavation in Street—Care Required.</p> <p>A street railway company was bound to use the care that an ordinarily prudent and careful man would use under the circumstances to warn travelers' in the street of the existence and danger of an excavation.</p> <p>6. Municipal Corporations—Excavation in Street—Contributory Negligence—Duty to Observe Danger.</p> <p>If by the exercise of ordinary care a traveler in a public street would have observed an excavation and avoided the accident, he could not recover.</p> <p>7. Street Railroads—Excavation in Street—Violation of Statute.</p> <p>Since there could be no connection between the failure of a street railway company to obtain a permit to excavate in a city street, as required by statute, and an injury caused by a traveler running into the excavation, such violation of the statute was immaterial on the question of defendant’s negligence toward the traveler.</p>