(108 A.) The learned judge remarks elsewhere in the defendant made the representations comthe course of the same opinion: plained of. "I do not think that it is necessary that the plaintiff should be called as a witness to swear that he acted on the inducement. At the time Pasley v. Freeman was decided, and for many years afterwards, he could not be so called." Pasley v. Freeman, 3 T. R. 51, 12 Eng. Rul. Cas. 235, it will be remembered, is the case generally regarded as the foundation of the modern law of actionable misrepresentation. At the time that decision was rendered (1789) the parties to a suit were by the common law disqualified as witnesses because of their interest in the outcome of the litigation. 1 Wigmore, Evidence, par. 575; Lord Bowen, "Progress in the Administration of Justice During the Victorian Period," Select Essays in Anglo-American Legal History, vol. 1, 516, 521. So it appears that the principle that reliance, in fraud cases, might be inferred from the circumstances was one of early inception. Redgrave v. Hurd (1881) 20 Ch. Div. 1, went to a greater length in the treatment of this subject than did the other decisions cited above. In that case it was said by Jessel, M. R., at page 21, that "where a person makes a material representation to another to induce him to enter into a contract, and the other enters into that contract, it is not sufficient to say that the party to whom the representation was made does not prove that he entered into the contract relying upon the representation. If it is a material representation, calculated to induce him to enter into the contract, it is an inference of law that he was induced by the representation to enter." But this doctrine was disapproved in the English cases cited in the foregoing paragraph, and, it may be noted, the Master of the Rolls himself recanted in Smith v. Chadwick (1882) 20 Ch. Div. 27, 44, and Matthias v. Yetts (1882) 46 L. T. 497, 502, holding therein that the inference to be drawn in such a case is one of fact and not of law. In the case now under consideration, the evidence, taken in the light most favorable for the plaintiff, tended to show the following facts: Plaintiff was a French-Canadian, and unable either to read or write English, although he had resided in this state for three or four years next previous to the transaction in question. Having heard that defendant desired to sell his farm, he went there and had a talk with defendant in regard to the proposed sale, but did not then reach any agreement as to the terms, because he had not enough money to make the payment in cash required by defendant. At this meeting plaintiff did not inspect the farm. A few days later he again went there, and with defendant made a partial inspection. It was at this second visit that The farm consisted of 230 acres, and was originally two farms, one being known as the Kidder farm and the other as the Hancock farm. There was also a back lot of 50 acres, partly pasture and partly wooded. Some time before the sale to the plaintiff, defendant had sold to the Black River Bobbin Com pany all of the hardwood timber on the 50acre lot, and at the time of the plaintiff's second visit to the farm all of this kind of timber had been cut, and there were about 50,000 feet of hardwood logs, the property of the Bobbin Company, and worth about $300, piled on the land. There were between 1,000 and 1,500 feet of spruce, not included in the sale to the Bobbin Company, standing on the lot. The running water in the tub in the cowyard, and in the bathroom in the house, was taken from a small reservoir, or so-called spring, beside a brook situated on the land of one Don Carpenter. At one time the defendant had piped the water from a spring near the sugar house on his own land, but, several years before the sale to the plaintiff, the supply from this spring became unsatisfactory, and defendant, with the oral consent of the administrator of Carpenter's predecessor in title, laid a pipe from the After Carreservoir on the latter's land. penter acquired title this arrangement was continued by the latter's oral permission, with the tacit understanding that Carpenter might have, in return for the water privilege, the right to cross a field belonging to defendant's farm. When defendant laid the pipe above described he took up the pipe running from the spring near his sugar house. Upon the occasion of plaintiff's second visit to the farm the parties did not go upon the wooded portion of the 50-acre lot. From the lower, or pasture, part where they stood it was impossible to see whether there was any large timber standing, or any logs cut and piled, upon the upper, or wooded part. While there defendant stated to plaintiff that there was a sufficient quantity of timber and logs on the lot half to pay for the farm, and that there were enough logs already cut to make a big payment. Nothing was said by defendant regarding the prior sale of the timber to the Black River Bobbin Company, nor that the logs were the property of the company. Plaintiff knew nothing of these facts until after the deed of the premises had been executed and delivered to him. Upon the same occasion plaintiff asked to be shown the spring supplying the tub in the cowyard and the location of the pipe, so that he might know where to make repairs in the event of an accident to the water supply. Defendant thereupon pointed toward the sug tiff defendant stated that the annual taxes were $65, whereas they were really $120 in addition to the rent charge of $23.50 mentioned above. The purchase price of the farm and per water right was worth $1,000 to the farm, and the farm and personal property would have been worth $9,000 if they had been as represented, but were actually worth $6,000. ar house, and said that the spring was there, that it was a good spring, and the best running spring in the town of Irasburg. Plaintiff then asked again to be shown the spring, but defendant said, "Let's make the trade," and took plaintiff to see a corner post. Defend-sonal property was $9,250. The Carpenter ant did not inform plaintiff that the water was taken from the Carpenter property, and was not running from the spring near defendant's sugar house, nor that Carpenter had, by tacit agreement in return for the license to take water from his brook, a right of way across the field. These facts first came to the knowledge of plaintiff after the trade had been consummated and the deed passed. He then inquired of defendant why he did not tell him that the source of the running water did not belong to him, and the latter replied only that he was not obliged to tell him whether it did or not. Subsequently to the sale of the farm defendant unsuccessfully endeavored to purchase the water supply from Carpenter for the plaintiff. During the inspection of the premises on plaintiff's second visit to the farm defendant represented to him that the buildings were in need of little repair, and that the farming tools, included in the trade, were in good condition. Plaintiff did not go into the basement of the barn, and the floor of the barn was covered with chips and rubbish, so that the condition of the boards could not be seen. In fact the basement walls and underpinning were in bad condition, and the flooring required replacement in order to be safe. The farming tools were in a dark shed, and when told that they were in good condition, plaintiff replied that that was all right, as he liked good tools to work with, and made no further examination. Plaintiff inquired of defendant as to the fences, and defendant answered that he had good wire fences all around the farm. Plaintiff then said: "All right; I am glad of it, if it is a good fence"-and made no inspection. In fact the fences were not all wire, in places there were no fences, and part of the fencing was insecure and required replacement. A part of the farm was leased land, under a perpetual lease, known as the Beauclerk lease, and subject to a rent charge of $23.50 a year. Nothing was said about this lease by defendant, and plaintiff was ignorant of its existence until the time of the execution of the deed. In reply to an inquiry by plain During his cross-examination, in reply to the question why he did not go up to the back lot to see the logs piled thereon, plaintiff testified that: "He [the defendant] wanted to go to Irasburg, and we was in a hurry, and he says, 'I will spend another day when trade be all done;' he says 'I will come up a day, and I will show you everything;' he says 'I will spend a day or two if I have got to;' and he says, 'I will show you everything, the corner fence and the right. I took his word." spring and everything,' he says; and I says, 'All [2] No doubt the falsity of the foregoing representations could have been discovered by plaintiff by a careful examination of the premises. But he was not required to make an examination, and had the right, under the circumstances, to rely upon the statements made to him. Crompton v. Beedle, 83 Vt. 287, 300-302, 75 Atl. 331, 30 L. R. A. (N. S.) 748, Ann. Cas. 1912A, 399; Maidment v. Frazier, 90 Vt. 520, 527, 98 Atl. 987. [3] It is considered that the representations detailed above were material, and in their nature calculated to induce the plaintiff to rely upon them in entering into the transaction with the defendant. Significance is added by plaintiff's testimony that, when defendant said he would later show him the corner fence, the spring and everything, he took the latter's word, and what plaintiff said in reply to the statements of defendant regarding the tools and fences. Without saying that this testimony of the plaintiff, standing alone, would be enough to justify the submission of the question to the jury, it is clear that, taken in connection with the evidence as to the representations themselves, there was sufficient to warrant the jury in finding that plaintiff did rely upon them in making the purchase. The question was therefore properly submitted to the jury, and defendant's exception is without force. Judgment affirmed. Negligence is want of ordinary care, or the want of such care as a reasonably prudent and careful person would exercise in similar circumstances. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Negligence.] 3. HIGHWAYS 172(1)-RIGHTS OF AUTOMO BILE DRIVER AND MOTORCYCLIST. An automobile driver and motorcyclist have equal rights to lawfully use public highways, and each may assume the other will exercise ordinary care, and not carelessly expose to danger or negligently injure the other. 4. HIGHWAYS 10. HIGHWAYS 175(1)-NO RECOVERY FOR "UNAVOIDABLE ACCIDENT." No recovery can be had for death caused in a collision between motor vehicles if the collision was an "unavoidable accident" or which could not be prevented by the exercise of ordinary care and prudence. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Unavoidable Accident.] 11. EVIDENCE 588-MATTERS CONSIDERED IN DETERMINING WEIGHT. In weighing testimony the jury may consider the appearance and manner of witnesses, their apparent fairness or bias, their intelligence and opportunities for observing, and other elements which may fairly test their truthfulness and accuracy. 12. DEATH 95(3)-DAMAGES FOR DEATH OF HUSBAND. A wife may recover for her husband's negligent killing such damages as will reasonably compensate her for all damages which she has sustained, or may sustain, based upon deceased's probable length of life, and governed by the 175(1)-COLLISION DUE TO portion of his income that plaintiff would have probably received if he had lived. TRAVELER ON WRONG SIDE OF ROAD. · Traveler on public highway should proceed on the right hand side, and upon meeting a person traveling on the wrong side may assume that such person will do everything reasonably possible to avoid a collision, and is not himself responsible for any collision if he does all that a reasonably careful person would have done to prevent it. 5. HIGHWAYS 175(1)-DUTY OF PERSONS OPERATING MOTOR VEHICLES UPON MEETING. Persons operating motor vehicles on a public highway upon meeting should turn to the right side of the highway, so that the other vehicle may pass with safety. 6. HIGHWAYS 177-VIOLATION OF SPEED STATUTE AS NEGLIGENCE PER SE. Exceeding the speed limits prescribed by Rev. Code 1915, § 246, for motor vehicles on highways constitutes negligence per se. 7. HIGHWAYS 177-EXCEEDING STATUTORY SPEED MUST PROXIMATELY CAUSE INJURY. A defendant is not liable for violating Rev. Code 1915, § 246, prescribing speed limits for motor vehicles on highways, unless the violation of the statute caused the accident of which plaintiff complains. Action by Sadie G. Lemmon against Luke H. Broadwater to recover damages for the death of her husband, Walter J. Lemmon. Verdict for the plaintiff. BOYCE and RICE, JJ., sitting. W. W. Knowles, of Wilmington, for plaintiff. Robert H. Richards and Aaron Finger, both of Wilmington, for defendant. The facts sufficiently appear in the charge of the court. RICE, J., charging the jury: This action was brought by Sadie G. Lemmon, the plaintiff, against Luke H. Broadwater, the defendant, to recover damages for the death of Walter J. Lemmon, her husband, alleged to have been occasioned by the negligent operation of defendant's automobile on a public highway in this county. The plaintiff claims that the defendant on the nineteenth day of August was running his automobile in a southerly direction on a part of the State Road, leading from Summit 8. HIGHWAYS 184(2)-COLLISION BETWEEN Bridge to Mt. Pleasant, a public highway in MOTOR VEHICLES DOES NOT CREATE PRESUMP- The fact that a motorcyclist was killed in a collision with an automobile on a public highway deos not create a presumption of negligence either on the part of the deceased or defendant automobile driver. 9. HIGHWAYS 175(1)-CONTRIBUTORY NEG LIGENCE BARS RECOVERY. If deceased motorcyclist was negligent in colliding with an automobile, no recovery could be had for his death, even if defendant automobile driver was also negligent. this county, and in attempting to pass a wagon going in the same direction ran his automobile to the left of the wagon and on the left hand side of the road, thereby colliding with the motorcycle on which Walter J. Lemmon was riding in a northerly direction. As a result of the collision between the automobile and the motorcycle, Walter J. Lemmon was injured and died from his injuries a few minutes later. This action is based on the alleged negligence of the defendant and the particular acts with which the plaintiff charges the de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fendant are: (1) That the defendant negligently ran his automobile at the place of the accident, at an unlawful and dangerous rate of speed, to wit, at the rate of thirty-five miles per hour; (2) that he attempted to pass Walter J. Lemmon, the rider of the motorcycle, at a dangerous rate of speed without stopping or attempting to stop his automobile, after he saw or could have seen Lemmon approaching in an opposite direction; (3) that he attempted to pass Lemmon, without giving a warning of his approach; (4) that the defendant ran his automobile at a rapid rate of speed on the left hand side of the road; (5) that contrary to the statute law of the state of Delaware, the defendant ran his automobile to the left of the center of the highway. the right to assume and act upon the assumption that the other will exercise ordinary care and caution according to the circumstances, and will not negligently and carelessly expose himself to danger or negligently do injury to the other. [4] It is the law of this state that a traveller on a public highway proceed on the right hand side of the highway and if he should meet a person travelling on the wrong side of the road, the traveller on the right side of the road has the right to assume that the other on the wrong side will do all that a reasonably prudent person, under all the circumstances, would do to avoid a collision, and if they should collide with each other, the traveller on the right side of the road would not be held responsible if he did all that a reasonably careful and prudent person would have done to prevent the accident. [5] It is the duty of a person operating a motor vehicle on a public highway upon meeting another vehicle to reasonably turn to the right of the center of the highway so that such vehicle may pass with safety and without interference. [6] We will call to your attention the following provisions of the statute law of this state: Section 209 [246], Rev. Code 1915, in part, provides: The defendant denies that he was guilty of any of the acts of negligence as charged by the plaintiff. He denies at the time of the collision, between his automobile and the motorcycle on which Lemmon was riding, that he was in the act of passing a wagon going in the same direction. The defendant contends that at the time of the collision and immediately prior thereto he was operating his automobile at a reasonable and lawful rate of speed on the right hand side of the road, in the direction he was proceeding, and while so proceeding, Lemmon approached him "The following rates of speed may be mainon a motorcycle at an unreasonable and dan-tained but not exceeded: * ** Upon any gerous rate of speed, with a noticeable lack public street or highway where the buildings of control of the motorcycle on the part of are of greater distance apart than one hundred the rider, and when the motorcycle reached a feet, a rate of speed of one mile in two minutes point in the road opposite the automobile, and twenty-four seconds shall be permitted, buz the motorcycle, either by reason of the negli- not exceeded, but this rate shall be reduced to gence of the person operating it, or for some one mile in five minutes in passing other ve reason beyond the operator's control, sud- hicles; provided that nothing in this section denly swerved to the left and ran into the shall permit any person to drive a motor vehiside of defendant's automobile. cle at a greater rate of speed than is reasonable, having regard to the traffic, or so as to endanger the safety of any person or injure the property of any person. It is admitted that the accident occurred It is admitted that the accident occurred in August, 1918, on the State Road, a public highway in New Castle county, leading from Summit Bridge to Mt. Pleasant, that the plaintiff's husband was operating a motorcycle at the time of the accident, that the defendant owned and operated the automobile which collided with the motorcycle, and that the plaintiff is the widow of the deceased. It is not denied that Walter J. Lemmon died shortly after the accident as a result of injuries received in the collision. [1, 2] The basis and gist of this action is negligence. Negligence is never presumed; it must be proved, and it is a burden on the plaintiff to affirmatively show that the defendant neglected some duty which he owed to the deceased. Negligence has often been defined by this court to be the want of ordinary care; that is, the want of such care as a reasonably prudent and careful person would exercise under similar circumstances. [3] An operator of an automobile and a traveller on a motorcycle have equal right to It has been held in this state that a violation of the provisions of a statute amounts to negligence in law, whether any positive or active negligence be proved or not. It is what is commonly known in law as negligence per se. [7] However, the defendant would not be liable for injury resulting from such negligence, unless you are satisfied from the evidence that the violation of the statute, if any, caused the accident complained of. If you should find from the evidence that the defendant at the time of the accident was operating his automobile in a manner in violation of the provisions of the statute law of this state, he would be guilty of negligence per se, and if such negligence on the part of the defendant was the proximate cause of the collision between the automobile operated by the defendant and the motorcycle operated by Walter J. Lemmon, the deceased, the defendant would be liable. (108 A.) the operator of the motorcycle was at the time of the accident operating his motorcycle in a manner in violation of the provisions of the law, he would be guilty of negligence per se and if such negligence on his part was operating at the time of the accident and caused or contributed thereto, his widow, the plaintiff, would not be entitled to a recovery in this action. [8] One of the defenses relied upon by the defendant is that the collision was caused by the negligence of the plaintiff's deceased husband. As we have before stated, negligence is never presumed. It must be proved to the satisfaction of the jury by the party alleging it. There is no presumption of negligence either on the part of the deceased or on the part of the defendant, from the fact that the death of the deceased resulted from the collision between the automobile and the motorcycle. Whether negligence exists in a particular case, and whose, is a question to be determined by the jury from the evidence. [9] If the accident was caused solely by the negligence of Walter J. Lemmon, there the negligence of Walter J. Lemmon, there can be no recovery by the plaintiff, or, if the deceased was guilty of negligence which was operating at the time of the accident and contributed thereto, the plaintiff would not be entitled to a recovery even though the jury should believe that the defendant was also guilty of negligence, as the law will not measure the proportion of blame or negligence to be attributed to either party. [10] Another defense urged is that the collision between the automobile and the motorcycle, resulting in the fatal injuries to Walter J. Lemmon, was an accident, without fault of either party to the collision. An accident which could not be prevented by the exercise of ordinary care and prudence is termed an unavoidable accident, and, if you should find from the evidence that the collision in question was of such a character, the plaintiff could not recover. (Superior Court of Delaware. New Castle. JUSTICES OF THE PEACE 196(1)-CERTIORARI Where a justice of the peace in a forcible entry and detainer case entered the jury's verdict in his docket, but failed to enter the judgment therein, certiorari will be dismissed for failure to enter the judgment. Action by William H. Collins against Walter L. Marker. Verdict for plaintiff, and defendant brings certiorari. Dismissed. Certiorari No. 34, November term, 1919. Action by William H. Collins before a justice of the peace against Walter L. Marker. Trial before jury. Verdict for plaintiff, but no judgment entered by the justice of the peace. On certiorari, which was dismissed for want of judgment. BOYCE and RICE, JJ., sitting. John B. Hutton, of Dover, for plaintiff below. L. Irving Handy, of Wilmington, for defendant below. The action before the justice was for a [11] When the testimony is conflicting, the forcible entry and detainer. The case was jury should reconcile it, if they can; if they heard before a jury who certified their vercannot, they should give credit to the testi- dict in favor of the plaintiff to the justice of mony of those witnesses who, under all the the peace in accordance with the statute. circumstances, appear to the jury to be most The justice spread the certificate on his dockentitled to credit, and reject such testimony et but failed to enter judgment thereon as as they may deem unworthy of credit. In required by the statute. There were four weighing testimony, the jury may consider exceptions filed to the record. The fourth the appearance and manner of the witnesses, was "that it does not appear by the said their apparent fairness or bias, degree of in- record that any judgment of the justice of telligence and their opportunities for seeing the peace was entered based on the finding and otherwise knowing the facts and circum- of the jury in said cause." Counsel for the stances surrounding the transaction concern- plaintiff below moved to dismiss the certioing which they testify, and any other element rari. which may fairly test their truthfulness and the accuracy of their testimony. PER CURIAM. The certiorari should be [12] If you find for the plaintiff, it should dismissed for failure on the part of the jusbe for such a sum of money as will reason- tice to enter judgment on the finding of the ably compensate her for any and all damag- jury. Vaughn v. Marshall, 1 Houst. 348. es that she has sustained, or may sustain by The certiorari is dismissed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |