[6] Exclusive, adverse and continuous possession for 20 years is ground upon which the law presumes a legal title. But where the possession relied upon is for a less period than 20 years, or where it is of a mixed character, as where the possession has been shared with some other person or persons, no conclusive presumption arises as to the ownership of the legal title from such pos session. (3 Boyce, 65) WALLS v. PEOPLE'S RY. CO. 1. PLEADING (§ 376*)—IssUES—ADMISSIONS— Cent. Dig. §§ 1225-1227; Dec. Dig. § 376.*] ES QUESTION FOR JURY. The credibility of the witnesses is for the jury. [Ed. Note. For other cases, see Trial, Cent. Dig. § 334; Dec. Dig. § 140.*] 3. MASTER AND SERVANT (§§ 101, 102*)-OBLIGATION Of Master-SAFE APPLIANCES. [7] The nature or kind of possession from which the law presumes legal title to real estate, depends in a great degree upon the nature and character of the property. Where the property is uninclosed, cutting wood or cultivating the land, and other similar acts are to be regarded as acts proving posses-sonably safe and proper appliances and keep A master must furnish to his servant reasion. But such acts must be exclusive and them in a reasonably safe condition; but he in opposition to the claims of all other per- need not furnish the safest, best, or most imsons, and continued for at least 20 years, in proved appliances. order to warrant an inference of title by possession only. If it appears to the jury from the evidence that there was a mixed possession of the premises; that is, if acts of ownership have from time to time been exercised by both parties, or by those under whom they claim, the law adjudges the right of possession to be in that party who has shown a legal title. You have in evidence the record of the paper title claimed by each party, and the evidence which, it is contended, identifies the disputed premises with the premises described in said record. You have also heard the testimony on behalf of each party as to the possession of the premises lying between the purple and the red lines. If you find from the evidence that the plaintiff is entitled to a verdict for the whole of the premises lying between the red and black dotted lines, you should return a general verdict for the plaintiff, that is, that the defendant is guilty of the trespass and ejectment in the plaintiff's declaration mentioned, etc. Your verdict respecting the premises lying between the purple and the red lines should be for that party in whose favor is the preponderance or greater weight of the evidence. Servant, Cent. Dig. 88 181-184; Dec. Dig. §§ 101, 102.*] [Ed. Note.-For other cases, see Master and 4. MASTER AND SERVANT (§§ 217, 209*)—ASSUMPTION OF RISK. A servant assumes the ordinary risks incident to his employment, such as are patent, seen, and known, or which may be seen and known by the ordinary use of his senses; but he does not assume risks involving the primary duty of the master to furnish reasonably safe safe condition. appliances and to keep the same in a reasonably [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 574-600, 552; Dec. Dig. 88 217, 209.*] 5. MASTER AND SERVANT (§ 229*)-OBLIGA- [Ed. Note.-For other cases, see Master and Where a company operating a trolley line exercised reasonable care in the inspection of the appliances required for the proper operation of cars, and the appliances were in reasonably good working condition when last inspected be fore an accident, and a defect in the appliances was not discovered in time to reasonably permit the repair thereof or a discontinuance of the operation of the car, the defect was not actionable negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 253; Dec. Dig. § 126.*] 7. MASTER AND SERVANT (§ 236*)-DUTY OF SERVANT-OPERATOR OF TROLLEY CARS. If you find that the plaintiff is not entitled to a verdict for that portion of the premises lying between the red and purple lines, then your verdict should be for the plaintiff for the portion disclaimed by the defendant as we have instructed you, that is, that the defendant is guilty of the trespass and ejectment within laid to his charge in manner and form as within complained against him as to that portion in the plaintiff's declaration mentioned lying between the purple line and the black dotted line on the plot in evi-pated, is put on his guard, and he must exercise dence, and assess his damages at six cents, and six cents costs, besides the costs of suit. Verdict: "We find the defendant guilty of the trespass in ejectment in the said declaration mentioned in the manner and form as the said John Doe hath complained against him." A motorman, operating a trolley car, must exercise reasonable care for his protection, and he must carefully look out for obstructions that may be seen on the track; and a motorman who has knowledge of the existence of any obstruction, or who has information from which the existence of danger may be reasonably antici a greater degree of care in running his car and in looking out for the danger, and take such precautions to avoid injury therefrom as an ordinarily prudent person would take under similar conditions. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 723-742; Dec. Dig. 236.*] 8. MASTER AND SERVANT (§ 170*)-INJURY TO | collision with the rear end of another trolSERVANT-FELLOW SERVANTS. ley car because of the negligence of the defendant. A servant cannot recover from the master for injuries caused by the negligence of a fellow servant, in the selection of whom the master used due diligence and furnished him with suitable means to perform a service required of him. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 336; Dec. Dig. § 170.*] 9. MASTER AND SERVANT (§ 216*)-INJURY TO SERVANT-ASSUMPTION OF RISK. A servant assumes the negligence of fellow servants, who are servants in the same employment. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 567-573; Dec. Dig. § 216.*] 10. MASTER AND SERVANT (§ 229*)-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE. The voluntary intoxication of a servant at the time of a personal injury may be considered in determining whether he took reasonable care for his safety; but the jury must be satisfied that at the time of injury he was intoxicated, and that by reason thereof he failed to take reasonable care for his safety. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 229.*] 11. MASTER AND SERVANT (§ 265*)-INJURY To SERVANT-BURDEN OF PROOF. A servant, suing for a personal injury negligently inflicted by the master, has the burden of proving by preponderance of the evidence the master's negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 877-908; Dec. Dig. § 265.*] 12. NEGLIGENCE (§ 1*) - "NEGLIGENCE" DE FINED. "Negligence" is the failure to observe for the protection of another the degree of care which the circumstances justly demand, whereby such other person suffers injury. [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, pp. 7729-7731.] 13. MASTER AND SERVANT (§ 227*)-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE. A servant, receiving a personal injury in consequence of his own negligence contributing to the accident, cannot recover damages. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 668; Dec. Dig. § 227.*] 14. DAMAGES (§ 95*) – PERSONAL INJURIESMEASURE OF DAMAGES. One sustaining a personal injury negligently inflicted by another is entitled to recover such an amount as will compensate him for his pain and suffering, and for any loss of wages suffered thereby, and for any impairment of ability to earn a living in the future resulting from the injuries. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 222-229; Dec. Dig. § 95.*] Action by Milton N. Walls against People's Railway Company. Verdict for plaintiff for $550. Action on the case (No. 54, September term, 1910), brought by Milton N. Walls for personal injuries alleged to have been received by the said plaintiff while in the employ of the defendant as a motorman on one of its trolley cars running between Brandywine Springs and Wilmington. Said injuries were alleged to have been occasioned by a The facts appear in the charge of the court. Argued before PENNEWILL, C. J., and RICE and CONRAD, JJ. W. W. Knowles and Levin Irving Handy, for plaintiff. Robert H. Richards, for defendant. PENNEWILL, C. J. (charging the jury). Gentlemen of the jury: This is an action brought by the plaintiff to recover from the defendant company damages for personal injuries alleged to have been caused by the negligence of the defendant. cars The plaintiff claims: That about 9 o'clock on the night of May 30, 1910, he was the motorman operating one of the defendant's between this city and Brandywine Springs, and when returning from the lastnamed place, and running at a moderate rate of speed, his car collided with the rear end of another one of the defendant's cars which was standing still and unlighted at a point between Roselle and Elsmere. That the car with which his car collided could not be seen by the plaintiff, because of the absence of any light or warning, until it was so close as to make collision inevitable. That as a result of the collision the plaintiff was injured, and to recover for his injuries he has brought this suit. The specific acts of negligence relied upon by the plaintiff are set out in his declaration, which consists of three counts. In the first count it is alleged that the defendant carelessly and negligently operated its trolley car on its said railway and track ahead of the trolley car on which the plaintiff was then and there working as motorman, in the nighttime, without any rear light burning on the said trolley car ahead of the said plaintiff, and as a consequence of said carelessness and negligence of the said defendant the said plaintiff came upon the said unlighted trolley car. In the second count it is charged that the said defendant carelessly and negligently suffered and permitted a certain car to remain standing on its railway tracks without any notice or warning being given to the plaintiff. In the third count it is averred that the defendant carelessly and negligently permitted its said trolley car ahead of the one on which the plaintiff was working to be then and there operated with a trolley pole which was bent and crooked and thereby rendered liable to get off of the trolley wire which supplied the electric current. [1] It is agreed by and between the parties to the action, that the defendant company was running and operating the two cars which were in this rear-end collision; | end he should carefully look out for obstructhat those cars were trolley cars, operated tions that may be seen on the track. If by by electricity; that the defendant company a reasonable use of his senses the plaintiff had the legal right to operate those cars on could have seen the car ahead of him in the tracks at the time and place that the time to have averted the collision he cannot accident happened. Such facts, therefore, being agreed to, or admitted, were not required to be proved. [2] We have been requested by the defendant to direct you to return a verdict in its favor. This we decline to do because we think the case should be submitted to you for your decision upon the evidence, applying thereto the law as we shall declare it. The testimony, as well as the credibility of the witnesses, are for the jury, and not for the court, to determine. [3] The relation existing between the defendant company and the plaintiff at the time of the accident was that of master and servant, and the primary duty imposed upon the defendant towards the plaintiff in the course of his employment, by reason of this relation, was to furnish him reasonably safe and proper appliances and equipment with which to operate his car, and to keep and maintain such appliances and equipment in a reasonably safe condition. But this court has repeatedly held that the appliances and equipment used need not be of the safest, best, nor of the most improved kind. It is sufficient if they be reasonably safe and adapted to the purpose of the employment or work required. [4, 5] If the master fails to observe this rule of law and injury results to his servant from such failure, he becomes liable therefor on the ground of negligence. The servant assumes no risk whatever as to these primary duties, but he does assume all the ordinary risks incident to his employment, such as are patent, seen and known, or which may be seen and known by the ordinary use of his senses. And he is required to exercise due care and caution in the course of his employment to avoid danger and injuries; for the master having performed the primary duties required of him, is not an insurer of the safety of his servant. [6] If the defendant company exercised reasonable care in the inspection of the appliances required for the proper running and operation of the car, and such appliances were in reasonably good working condition when last inspected before the accident, and any defect in said appliances was not discovered in time to reasonably permit the defendant to repair the same or supply others in their place, or to discontinue the operation of the car, the existence of the defects complained of would not constitute negligence on the part of the defendant. [7] It is the duty of a motorman in operating a railway car to exercise reasonable care and caution for the protection of him recover. If a motorman has knowledge of the existence of any obstruction or danger on the track, or if he has warning or information from which the existence of such danger could be reasonably anticipated or apprehended, he is put upon his guard, and it is his duty to exercise a greater degree of care in running his car, in looking out for the obstruction or danger, and to take all such precautions to avoid injury therefrom as an ordinarily prudent person would take under such conditions. [8] A servant cannot recover from the master for injuries caused by the negligence of a fellow servant in the selection of whom the master had used due diligence. It is not denied that the plaintiff and the conductor of the car with which he collided were fellow servants. Therefore, if you be lieve that the plaintiff's injuries were caused solely by the carelessness or negligence of said conductor your verdict should be in favor of the defendant. [9] The general rule upon the subject is that he who engages in the employment of another for the performance of specific duties for compensation takes upon himself the natural and ordinary risks and perils incident to the performance of such service, which includes the carelessness and negligence of fellow servants, that is, of those who are in the same employment. lection of capable and trustworthy servants, Where a master uses diligence in the seand furnishes them with suitable means to perform the service in which he employs them, he is not answerable to one of these for an injury received by him in consequence of the carelessness of another while both were engaged in the same service. Wheatley v. P., W. & B. R. R. Co., 1 Marv. 305, 30 Atl. 660. [10] The voluntary intoxication of the person injured, when proved, may be considsuch person at the time of the accident was ered by the jury in determining whether taking such care for his safety as is required of a reasonably prudent man under the circumstances. But to consider this question of intoxication at all, the jury should be satisfied from the evidence that at the time of the accident the plaintiff was intoxicated, and that by such intoxication he failed to take such reasonable care for his safety as the circumstances required. [11] This action, as you doubtless understand, is based upon the alleged negligence of the defendant. The burden of proving such negligence is cast upon the plaintiff, and preponderance of the evidence, for negligence is never presumed. Whether there was any negligence at the time of the accident, and whose, must be determined by you from the evidence, under all the facts and circumstances detailed by the witnesses. [12] Negligence, in a legal sense, has been defined to be the failure to observe for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. [13] It is contended by the defendant that the plaintiff was guilty of contributory negligence at the time of the accident; that is to say, that the injuries received by the plaintiff were caused by his own negligence, or his own negligence contributed to the accident from which they resulted. If you believe this to be true your verdict should be in favor of the defendant because it is the law that if a person is injured he cannot recover damages therefor if it is shown that his own negligence contributed proximately thereto. If, therefore, you believe from the testimony that the plaintiff saw, or by the exercise of reasonable care and caution could have seen the car ahead of him, or known of its proximity in time to have avoided the collision, but did not do so, and for that reason the accident happened, he contributed to his own injuries, and cannot recover even though the defendant was guilty of some negligence. [14] In conclusion, gentlemen, we say, that if you are satisfied from the preponderance or weight of the evidence that the plaintiff's injuries were caused by the negligence of the defendant in failing to perform some duty it was required by the law to perform, and are also satisfied that the plaintiff was not himself guilty of contributory negligence which proximately contributed to his injuries, your verdict should be in favor of the plaintiff, and for such an amount as you believe from the testimony would reasonably compensate him for his pain and suffering caused by the negligence of the defendant, and also for any loss of wages suffered by him in the past, as well as for any impairment of ability to earn a living in the future, as may be shown to be the result of the defendant's negligence. If, however, you believe the injuries complained of were not caused by the defendant's negligence, or that they were caused solely by the negligence of a fellow servant, or if you believe the plaintiff's own negligence contributed proximately to his injuries, your verdict should be in favor of the defendant. Verdict for plaintiff for $550. 1. (3 Boyce, 59) TOBIAS v. PEOPLE'S RY. CO. (Superior Court of Delaware. New Castle. March 21, 1911.) TRIAL (§§ 139, 140*)-PROVINCE OF COURT AND JURY-CREDIBILITY OF WITNESSES. The evidence and the credibility of witnesses is for the jury. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 332-335; Dec. Dig. §§ 139, 140.*] 2. STREET RAILROADS (§ 111*)-ACTION FOR INJURIES-ISSUES, PROOF, AND VARIANCE. Where plaintiff, in an action against a street railroad for personal injuries, alleges that such injuries were caused by being struck by defendant's car, he can recover only on proof of the facts alleged. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 226; Dec. Dig. § 111.*1 3. STREET RAILROADS (§ 93*)-INJURIES TO PERSONS ON TRACK-NEGLIGENCE. The measure of a motorman's duty as to persons on a track is what a reasonably prudent and careful man would do under like circumstances; and where a motorman, as soon as he saw a person on the track, began to sound the gong, applied the brakes, and took reasonable care to avoid striking and injuring such defendant road is not liable. person, though the car was not stopped, the [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*] 4. STREET RAILROADS (§ 98*)-INJURIES TO PERSONS ON TRACK-CONTRIBUTORY NEGLIGENCE OF PERSON INJURED. A person injured on a street railroad track cannot recover damages therefor, if it is shown that his own negligence contributed proximately thereto. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 204; Dec. Dig. § 98.*] 5. STREET RAILROADS (§ 98*)-INJURIES TO PERSON ON TRACK-CONTRIBUTORY NEGLIGENCE-SEEING APPROACHING CAR. and saw, or by the exercise of reasonable care Where plaintiff was walking on the track, could have seen, an approaching car in time to get off the track and avoid injury, but did not do so, and was struck by the car, he contributes to his own injury, and cannot recover in an action for injuries, although defendant was also guilty of negligence. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 204-209; Dec. Dig. § 98.*] 6. STREET RAILROADS (98*) INJURIES TO PERSONS ON TRACK-WALKING ON TRACK. It is not of itself negligence for a person to walk on the track of a street railroad. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 204-209; Dec. Dig. § 98.*] 7. STREET RAILROADS (8_85*) - OPERATION RIGHT OF WAY UPON TRACKS. A pedestrian has a right to use a street railroad track; but the street car company has a superior right to use all that portion of the street included within the lines of its track. Its superior right is necessarily so, as its cars can travel only in that track, and others must get out of their way, if they can do so. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 193, 195; Dec. Dig. § 85.*] 8. STREET RAILROADS (§ 98*) - INJURIES TO PERSONS ON TRACK-CONTRIBUTORY NEGLIGENCE. Where a street railroad track is obstructed by banks of snow on the side of the track, so as to make it more dangerous on that account, a person walking on the track is required to exercise a correspondingly greater degree of care to avoid being injured. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 204-208; Dec. Dig. § 98.*] 9. STREET RAILROADS (§ 93*)-INJURY TO PERSONS ON TRACK-DUTY ON SEEING PERSON ON TRACK. While the motorman of a street railroad car should at all times exercise reasonable care in the operation of the car, have it under proper control, and slow up or stop whenever necessary to avoid accident, he has a right to presume that a person on the track will act as a reasonably prudent person would act to avoid injury, and the mere fact that the car is not stopped is not of itself negligence. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*] 10. NEGLIGENCE (§ 1*) -NATURE AND ELE"Negligence" is the lack or want of ordinary care. MENTS. [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, pp. 7729-7731.] 11. NEGLIGENCE (§ 121*)—ACTIONS-PRESUMPTION AND BURDEN OF PROOF. Negligence is never presumed, but must be proved, and the burden of proving it rests upon the party alleging it. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 217; Dec. Dig. § 121.*] 12. DAMAGES (§ 95*)—INJURIES TO PERSONESTIMATING DAMAGES IN GENERAL. Damages for personal injuries may be awarded for such amount as will reasonably compensate the person injured for any expense incurred in treating the injury, and for bodily pain and suffering caused by defendant's negligence, and also for any loss of wages suffered in the past, and for any impairment of ability to earn a living in the future, as may be shown to be the result of such injury. PENNEWILL, C. J. (charging the jury). Gentlemen of the jury: This is an action brought by the plaintiff against the defendant company to recover damages for personal injuries alleged to have been sustained by her as the result of the defendant's negligence in so running and operating one of its cars on its railway between King and French streets in this city on the 17th day of January, 1910, that she was struck by said car and injured. The plaintiff claims: That between 6 and 7 o'clock in the morning of the day stated while going to her work she was, on account of the slippery condition of the sidewalks and the steep descent of the street, walking between the car tracks. That she had started from Seventh and French streets, and although she looked for an approaching car she saw none until she was about halfway of the block towards King street, when a car appeared at the brow of the hill at Seventh and King streets coming towards her. That it was not possible because of the steep grade to see the car until it almost reached such point. That she endeavored, when she saw the car, to get off the track, but the snow along the sides of the track was so high and hard she could not quickly extricate herself from danger. That the motorman twice ordered her to get out of the way, but did not stop the car and continued running it until she was struck, when the car stopped. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 222-229; Dec. Dig. § 95.*] 13. STREET RAILROADS (§ 114*)-ACTION FOR INJURIES-PREPONDERANCE OF EVIDENCE. In a civil action for personal injuries alleged to have been caused by the defendant's In the first count it is averred that the denegligence, the jury must be governed by the weight of the evidence, and render their verdict fendant negligently placed, suffered and peraccording to the side on which the evidence pre-mitted large banks of snow to lay or accuponderates. mulate along the side of said street car [Ed. Note. For other cases, see Street Rail- track, and negligently ran said car into and roads, Cent. Dig. §§ 239-250; Dec. Dig. § 114.*] against the plaintiff while she was endeavor14. TRIAL (§ 306*)—DELIBERATION OF JURY-ing to climb over the bank of snow or obstruc CONFLICTING EVIDENCE. Where the evidence is conflicting, the jury should reconcile it, if they can do so. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 731, 742; Dec. Dig. § 306.*] 15. EVIDENCE (8 588*)-WEIGHT AND SUFFICIENCY CREDIBILITY OF WITNESSES IN GENERAL. In determining the credibility of witnesses, the jury should give credit to those who, under all the circumstances, seem most worthy of credit, taking into consideration their fairness, their interest, their opportunities of knowing the things of which they speak, and any other circumstance which may assist in determining the credit to be given. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.*] tion and out of the way of the car. In the second count it is charged that the defendant negligently omitted to give reasonable notice of the approach of said car in time for her to avoid being struck. In the third count the plaintiff avers that the defendant negligently omitted and failed to control and manage the said car so as to stop it before it reached, struck and ran into her. In the fourth count the plaintiff alleges that the defendant did unlawfully, wantonly, maliciously and willfully run the car into and against her. Such are the acts of negligence averred, Action by Lydia A. Tobias against the and relied upon, by the plaintiff in this acPeople's Railway Company, a corporation of tion. the state of Delaware, to recover damages We say to you, gentlemen, that the court |