CHARGE OF COURT.

to punish engineers and others for not doing their duty, and not to relieve the company from the common law duty of taking the usual means to warn people of danger.

If the defendant failed to make use of such usual and appropriate means to warn the plaintiff at the time of the accident it would be negligence on its part, and if the accident occurred by reason of its failure to do so, the defendant would be liable for the injury to the plaintiff, provided the plaintiff did not by his own negligence or want of care, contribute in some degree to his injury.

It is a general rule of law that persons crossing a railroad are bound to the reasonable use of all their senses for the prevention of accident, and also to the exercise of all such reasonable caution as ordinarily careful and prudent persons would exercise in like circumstances.

A person approaching a railroad crossing with which he is familiar, is bound to avail himself of his knowledge of the locality and act accordingly. If as he approaches the crossing his line of vision is obstructed, he is bound to look for approaching cars in time to avoid collision with them, and if he does not look, and for this reason does not see an approaching car until it is too late to avoid a collision and he is thereby injured, he is guilty of negligence, and could not recover therefor. When the view at the crossing is obstructed, greater care is necessary than in places where the view is unobstructed.

Brown vs. Wilmington City Ry. Co., 1 Pennewill, 335; Price vs. Charles Warner Co., 1 Pennewill, 462.

If a person drives up to a railroad crossing and upon it, not only without stopping but without looking out or listening to ascertain if any train is approaching, and a collision and injury occurs to him from a passing train, which would have been prevented had the person so injured exercised the proper and ordinary prudence, care and caution mentioned, such person would be guilty of contributory negligence, and could not recover from the railroad company for such injury.

CHARGE OF COURT.

Lynam and Wife vs. P., W. & B. R. R. Co., 4 Houst., 599.

If you shall believe from the preponderance of the evidence in this case, that at the time of the accident the train which struck the plaintiff was running at a rate of speed in excess of six miles an hour, in violation of the ordinance of the City of Wilmington, and that such excessive speed was the proximate cause of the injury to the plaintiff; and shall also believe that the plaintiff was free from any negligence on his own part that contributed in any way to his injury, then your verdict should be for the plaintiff.

Or, if you should believe from the preponderance of the evidence that at the time of the accident the defendant was not exercising ordinary care and diligence, that is, all the care and circumspection, prudence and discretion that an ordinarily prudent and careful man would have exercised under the circumstances, and that the want of such care and diligence was the proximate cause of the injury to the plaintiff; and shall also believe that the plaintiff was free from any negligence that contributed in any way to his injury, then your verdict should be for the plaintiff.

But if you should believe that it has not been shown by the preponderance of the testimony that the negligence of the defendant was the proximate cause of the injury to the plaintiff, or if you should believe that the negligence of the plaintiff himself contributed to the injury complained of, your verdict should be for the defendant.

If you should find for the plaintiff your verdict should be for such sum as you believe, from the testimony, will reasonably compensate him for his injuries, including therein his loss of time and wages, his pain and suffering in the past, and such as may be in the future, in consequence of the accident; and also such sum for any permanent injuries caused by the accident, as you believe will cover his pecuniary loss from his impaired ability to earn a living in the future. If you should find for the plaintiff, he would also be entitled to recover any expenses shown by the testimony to have

VERDICT.

been incurred by him for medicines or medical treatment on account of said injuries, and also such sums as would reasonably compensate him for any loss and damage to his wagon caused by the accident.

Murphy vs. Hughes Bros. & Bangs, 1 Pennewill, 250.

Verdict for plaintiff for $2500.

SYLLABUS.

HENRY T. BOGGS vs. WILLIAM ARTHURS.

Certiorari-Postponement-Judgment Reversed.

When it appears from the record of the Justice that the case was postponed, but not to a day certain, and it does not appear that the defendant below had any knowledge of any further day of hearing, the judgment will be reversed.

(October 24, 1899.)

LORE, C. J., and PENNEWILL and Boyce, J. J., sitting.

Richard R. Kenney and Arley B Magee for plaintiff.

John D. Hawkins for defendant.

Superior Court, Kent County, October Term, 1899.

CERTIORARI to John S. Casperson, a Justice of the Peace in and for Kent County (No. 13, October Term, 1899). This was an action of assumpsit on a book account, the sum demanded being $6.26.

The record of the Justice set forth the following:

"Summons issued forthwith to Constable James D. Wright returnable at the office of John S. Casperson, J. P., in and for Kent County at Clayton, Del., summons served personally on defendant April 20, A. D. 1899, the defendant appears and after hearing all proofs and allegations in the case, the defendant asks for a postponement for a few days. And now to wit, on this 26th day of April, A. D. 1899, at 10 o'clock a. m. I enter a judgment against said Henry Boggs, defendant, and in favor of William S. Arthurs for six dollars and twenty-six cents ($6.26) and costs of suit."

Among the exceptions filed to the record of the Justice was the following:

"For that the record and proceedings before the said Justice, show, among other things; that the summons served personally on defendant, April 20th, A. D. 1899, the defendant appears, and after

JUDGMENT REVERSED.

hearing all proofs and allegations in the case, the defendant asks for a postponement in the case for a few days. And now to wit, on this 26th day of April, A. D. 1899, at 10 o'clock a. m., I enter a judgment against the said Henry Boggs, defendant, and the said records and proceedings do not show that the said case was postponed to a day certain, or that the said Henry Boggs had any knowledge of any further day of hearing, or to any other time for the consideration of the complaint or the rendering of the said judgment." McDermott vs. Kennedy, 1 Harr., 143.

Judgment below reversed.

STATE VS. HARRY WALLACE.

Criminal Law-Homicide-Murder-Manslaughter-Malice— Deadly Weapon-Presumption of Innocence

Reasonable Doubt.

I. Murder of the first degree, murder of the second degree, and manslaughter defined. Malice defined.

2.

Where the killing is admitted and no accompanying circumstances of justification, excuse or mitigation appear, the law presumes that it was done with malice aforethought; and in such case it is incumbent on the prisoner to show such provocation or alleviation as will suffice in law to rebut malice.

3. If death is produced by a deadly weapon, great must be the provocation to reduce the homicide from the grade of murder to the grade of manslaughter.

4. Every person is presumed to be innocent till proven guilty. It is incum