supplement its answer. Held; that under the circumstances the
garnishee should have an opportunity to produce testimony on the
point in question. Morgan & Co. vs. Nailor, 470.
PANEL OF PETIT JURORS QUASHED BY COURT.-See JURY.
PARENT AND CHILD.
1. The fact that a father as next friend sought to recover for his
minor child damages for which he might otherwise have maintained an
action in his own name, will amount to a waiver or relinquishment of
the father's right in favor of the son, or to an emancipation of the son
by the father, so as to preclude the father from maintaining an action
in his own name. Bowring vs. Wil. Mal. I. Co., 332.
See PARTIES; PRINCIPAL AND AGENT.
1. An action can not be maintained when brought by a plaintiff
who has no apparent legal interest in the cause of action. King vs.
Tyler, 287.
2. The fact that a father as next friend sought to recover for his
minor child damages for which he might otherwise have maintained an
action in his own name, will amount to a waiver or relinquishment of
the father's right in favor of the son, or to an emancipation of the son
by the father, so as to preclude the father from maintaining an action
in his own name. Bowring vs. Wil. Mal. I. Co., 332.
3. But the next friend of an infant plaintiff is not a party to the
action in such a sense that the judgment therein rendered could be
pleaded in bar of any cause of action he might have against the same
defendant growing out of the same transaction. The actions would
be different-the parties not the same. A verdict against a person
serving in one capacity will not estop him when he sues in another
distinct capacity, and is in fact a different person in law. Id.
See HUSBAND and Wife.
In order that a plaintiff may maintain his action at law with respect
to a partnership account or balance, it must appear that the partner-
ship has been dissolved, and that there has been an adjustment of the
parternship accounts, and a balance struck, showing a sum due to
him from the defendant. Downs vs. Short, 264.
PASS BOOK.-See BANK AND DEPOSITOR.
1. The statement of the law by the trial Court as to what consti-
tutes a passenger, and as to the care to be exercised by a passenger in
crossing the railroad tracks either before entering or after leaving the
car, affirmed, MacFeat vs. P., W. & B. R. R., 513.
The Court delivered the usual charge on negligence; and the
duty of the railway company, and also of the passenger. Elliott vs.
The Wil. City Ry., 570.
3. If a car slows up or stops at an unusual stopping place, in such a
manner as clearly to invite a passenger to alight, and the passenger
under such circumstances attempts to alight, using due and proper
care, it is the duty of the person or persons having charge of the
car not to suddenly start the car in such a manner as to endanger
the safety of the alighting passenger. Id.
1. The defendant would not be liable if the danger complained of
was apparent to a person of ordinary intelligence and care, or if, at
the time of the accident the deceased was using the dangerous appli-
ance without any order to do so, or contrary to the orders given by
the defendant. Coughlan vs. P. B. & W. R. R., 242.
2. If the deceased saw and knew of the inadequacy of the crew,
and continued to work without objections; or if a part of the crew
were temporarily absent in an emergency not reasonably to be an-
ticipated by the master, the defendant would not be liable. Id.
3. In the lawful use of the streets of a city a pedestrian is not
bound to hunt for latent obstructions or dangers. He may fairly pre-
sume that they are in a reasonably safe condition for use, in the ab-
sence of any knowledge to the contrary. If, however, he knows of
the existence of the danger, or under the circumstances ought to know
of it, and with such knowledge voluntarily runs into the danger, he
assumes all the risk of such conduct. White vs. Peoples Ry., 476.
PAYMENT OF NOTE.-See NOTE.
1. The authorities generally hold that in the absence of express
contract, and a positive authorized regulation, the use of percolating
waters for manufacturing, mining and like purposes, is within the
right of the owner of the soil, whatever may be its effect upon his
neighbor's wells and springs. But the owner may not wantonly or
maliciously so use his own land as to injure an adjoining owner by
diverting waters percolating, oozing or filtrating through the earth
to the lands of the latter; and the purpose for which the water is used
must be necessary, or at least legitimate. Little vs. Telephone Co.,
2. A person who possesses a mere privilege or right of way in and
over the land of another has no right to divert percolating waters, un-
necessarily and negligently from the lands of the owner to the injury
of such owner. Id.
3. A company that has the right to construct a telephone line
along and across the lands of another, may dig holes, erect poles,
string wires, and do any other thing and use such agencies as are
reasonably required to accomplish the work; but the exercise of such
right does not require the diversion of percolating waters or the des-
truction or impairment of a natural spring, unless the proper making
of the holes &c. would have such effect. It is for the jury to deter-
mine whether the waters were diverted, and the spring destroyed, by
and through the negligence of the defendant. Id.
Measure of damages stated, for destruction of natural spring
of water.
PERJURED WITNESS.-See WITNESS.
1. Perjury was an offense at common law, and is where a lawful
oath is administered in some judicial proceeding or due course of
justice, to a person who swears wilfully, absolutely and falsely, in a
matter material to the issue or point in question. State vs. Shaffner,
2. Where the crime of perjury is committed at the instigation or
procurement of another, it is termed subornation of perjury in the
party instigating it, and is also an offense at common law. So also
is an attempt to instigate or persuade another to commit perjury an
offense at common law, notwithstanding the fact that the perjury was
not afterwards actually committed. Id.
3. By a statute of this State it is made a felony for any person to
commit the crime of perjury, or to procure any other person to com-
mit such crime. Id.
4. While an attempt to procure one to commit perjury is not
specifically provided for by statute, it comes within the terms of the
general statute which provides that offenses indictable at common
law, and not specifically provided by statute, shall be deemed mis-
demeanors.
5. To establish such offense the State must show that the defen-
dant instigated and endeavored to persuade the witness to swear in
the former trial in substance and effect as set forth in the indictment;
that this was false,, and was known to be false, at the time of the in-
stigation an attempt and attempted to procure to commit perjury.
Id.
6. In considering the testimony of the defendant the jury should
have regard to the uncontradicted evidence as to his bad reputation
for truth and veracity, his former conviction for offenses involving
moral turpitide, and the interest he has in the determination of the
case. Id.
1. Held, that there was no evidence upon which a jury would have
been justified in finding a verdict for the plaintiff, and that they were
properly instructed to find a verdict for the defendant. Shuster vs.
P., B. & W. R. R., 4.
2. If a person in charge of a vehicle approaching a street crossing
sees, or by looking might have seen, a person walking over or along
such crossing, he is bound to stop or turn aside his vehicle so as to
avoid collision, and when he stops it should be for such time as to
afford a proper and reasonable time to get out of the way of the vehi-
cle if he fails so to do he is guilty of negligence. Robinson vs. Huber,
21.
3. Action to recover damages for personal injuries. Garrett vs.
Peoples Ry., 29; Bowring vs. Wil. Mal. I. Co., 332; The Wil. City
Ry. vs. White, 363; ;White vs. Peoples Ry 476
4. In an action for personal injuries the orderly method to pursue
at the trial is to first have the injuries described and identified either
by the plaintiff himself, or by some other witness who could so testify,
and then call the physician to testify to the nature and extent of those
injuries. White vs. The Wil. City Ry., 105.
PERSONAL INJURIES-Continued.
5. When one person is injured by the negligence of another, the
wrong-doer is liable for all the usual and natural effects and results of
such injury. It does not avail him to say, that if the injury had been
more speedily or more skilfully treated the actual suffering and results
would not have been so great. The question is, not whether the in-
jured person took the wisest counsel or applied the best remedies to
the wound, but whether the extent of the injuries complained of was
caused by and naturally grew out of the injuries inflicted by the neg-
ligence of the wrong-doer. It is the duty of the injured person, how-
ever, to use all reasonable care and precaution in effecting a cure.
Graboski vs. New Castle Leather Co., 145.
6. No presumption of negligence on the part of the defendant
company arises from the mere fact that the plaintiff or his property
were injured by the car of the defendant. The burden of proving it
rests upon the plaintiff. Heidelbaugh vs. Peoples Ry., 209.
7. Action to recover damages for personal injuries occasioned by
coillision with automobile. Simeone vs. Lindsay, 224.
8. It is never a test of the application of the fellow-servant doc-
trine to any given case whether or not the injury was received by the
servant during working hours or when he was at work after working
hours. The sole test of its application thereto is whether ta the time
of the injury the servant was doing something which it was his duty,
or he had a right, to do under the contract. If he was so acting, the
doctrine applies; if not, it does not apply. Taylor vs. Bush & Sons
Co., 306.
9. The plaintiff was injured in the defendant company's stable
yard at the end of his day's work, immediately after getting his pay
slip and money, and just as he was about to enter a stable door for
the purpose of getting his dinner pail, in accordance with his custom.
The injury occurred on the defendant's premises where his work was
in part performed while he was enjoying a privilege allowed by the
defendant to the plaintiff in his capacity of servant, and involved in
his service. Held that the relation of master and servant was then
subsisting. Id.
10. The injury having been caused by one of the defendants'
drivers, a servant engaged in the same kind of employment, by drop-
ping upon the plaintiff's head without warning a bale of straw, and it
not being claimed that this servant was known in any way to be in-
competent, or that the master was guilty of any negligence in employ-
ing him, or in failing to provide other methods for the transfer of the
straw from the loft to the horses' stalls; held that the case came clearly
within the fellow-servant doctrine, and the employer was not liable. Id.
11. The limitation act, passed May 28, 1897, which provides that
no action for the recovery of damages upon a claim for personal in-
juries shall be brought after the expiration of one year from the date
upon which the injuries were sustained, is not subject to the excep-
tions contained in the general statute of limitations. Chap. 123 of
the Code. Lewis vs. Pawnee Bill's etc. Co.,316.
12. The plaintiff having alleged as the negligence of the company
that the company permitted the step of the car to be so weak, broken
and insufficiently secured that it gave way beneath her when she was
departing from the car, the jury must be satisfied, in order for the
plaintiff to recover, that her injuries were caused by such unsafe
PERSONAL INJURIES—Continued.
condition of the step; and the jury must be also satisfied that the
plaintiff had no knowledge of such unsafe condition of the step, or
any information or warning from which she could have known it.
Smithers vs. The Wil. City Ry., 422.
13. But if the jury believe that the step of the car was in a reason-
ably good and safe condition at the time of the accident to the plain-
tiff, or believe the injuries of which the plaintiff complains were caused
by her own negligence, or were the result of an unavoidable accident,
their verdict should be in favor of the defendant. Id.
14. If the plaintiff moved from a position of safety, to a position of
danger near or upon the track so suddenly as to make it impossible for
the motorman to stop the car before the collision, the defendant could
not be held liable for the resultant injury; but, if the motorman saw,
or by the exercise of reasonable care could have seen, the plaintiff in a
position of danger, standing with his back to the car, in time to stop
the car and avoid the accident, it was his duty to do so, and if he failed
to do so the company would be liable. Heinel vs. Peoples Ry., 428.
15. In an action against the city of Wilmington for personal in-
juries, a citizen is not incompetent to serve as a juror because he is a
citizen of the mnuicipality and therefore interested as a taxpayer in
any verdict that might be rendered against the city. Anderson vs.
Wilmington, 485.
16. In the trial a physician having testified that he examined the
plaintiff and found him suffering from erysipelas, although he did not
know what caused the injury, he may be asked whether the erysipelas
could have been caused by the injury complained of. Id.
17. A physician called for the plaintiff having testified that he
made a thorough examination of the plaintiff, after getting a history
of the case, and found his right shoulder injured, may be asked
whether in his opinion the plaintiff's arm will ever be in its normal
condition again, notwithstanding there is no allegation of perma-
nent in jury in the narr. Id.
18. If a hole in the street of a city is dangerous to public travel and
had so existed for a time before the accident reasonably sufficient for
the city to have known of its existence and condition, the law pre-
sumes or implies that the city had received knowledge of it, and its
failure in a reasonable time after such notice or knowledge to fill or
repair the same, or to place about it proper safeguards, would be neg-
ligence. The city is not bound for injuries occasioned by holes in the
streets resulting from sudden storms or wash-pots, until it has a reas-
onable time to fill or repair the same, or place proper guards about
them. Id.
19. A count in the declaration averred that the injury resulted
from failure on the part of the defendant to employ a sufficient num-
ber of fellow servants to assist in the work that was being done.
Held, sufficient although the ignorance of the employee of the risk
was not averred. Valente vs. American Bridge Co., 556.
20. In an action to recover damages for personal injuries, the
Court delivered the usual charge on negligence, and the duty of the
railway company, and also of the passenger. Elliott vs. The Wil.
City Ky., 570.
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