by denying injury to the plaintiff because of the title to the property taken being in another. Such a plea, unlike one in which a defendant pleads property in himself, confesses the trespass and seeks to avoid it by matter of excuse or justification. As such matter of justification of necessity admits the trespass, it, of course, cannot be proven under the general issue, for by the general issue the trespass is denied. In the case of Covington v. Simpson, supra, where evidence of ownership of the property in a third person was offered under the general issue, the language of the court in refusing the evidence, must be construed with reference to the particular situation before it, and in saying that the defendant cannot prove ownership or possession in "some one else" to justify the trespass, unless by special plea, it must be considered that the court did not mean some one other than the plaintiff may recover, notwithstanding some an action for personal injuries, the negligence on his part, if it was the negligence of the defendant alone that was the immediate cause of the accident; in other words, if, notwithstanding any previous negligence of the the accident by the use of ordinary care. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. § 83.*] 6. MUNICIPAL CORPORATIONS ($ 705*) STREETS-VEHICLES-INCAPACITATED PEDES plaintiff, but meant some one other than the plaintiff, the defendant could have prevented parties to the action. As it is equally impossible for a defendant to commit trespas upon property of which he is the owner, as it is for a plaintiff to suffer trespass upon property of which he is not the owner, eliminating from the present consideration all questions of special property, so it is equally proper for the defendant, in denying the trespass under the general issue, to assert ownership in himself as it is under the general issue for him to deny the trespass by controverting the ownership of the plaintiff. The plea of property in the defendant, therefore, amounts to the general issue, and the motion to strike out the plea is allowed. Trial and verdict for plaintiffs. (4 Boyce, 492) BROWN v. MAYOR AND COUNCIL OF CITY OF WILMINGTON. (Superior Court of Delaware. New Castle. Jan. 16, 1914.) 1. MUNICIPAL CORPORATIONS (§ 705*)-USE OF STREETS-CARE REQUIRED. Vehicles and pedestrians have equal rights in the use of public streets, and each must exercise reasonable care to prevent collisions. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.*] 2. MUNICIPAL CORPORATIONS (§ 705*)-POLICE PATROL-NEGLIGENCE-LIABILITY. Where the police patrol wagon was run at a dangerous speed under the circumstances, or failed to give plaintiff, a pedestrian, timely warning of its approach, whereby plaintiff was injured, and the plaintiff was in the exercise of due care, the city is liable. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.*] 3. MUNICIPAL CORPORATIONS (§ 705*) - INJURY TO PEDESTRIAN-CONTRIBUTORY NEGLIGENCE LIABILITY. Where the negligence of plaintiff, a pedestrian, injured by the police patrol wagon, con TRIANS-NEGLIGENCE. One driving or operating a vehicle is bound to consider the lack of capacity of those in his way, such as children, or blind or drunken persons, to care for their safety, when such incapacity is known, or should have been known by him by the exercise of reasonable care. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.*] 7. MUNICIPAL CORPORATIONS (§ 705*)-UNAVOIDABLE ACCIDENT-VEHICLES. Where a pedestrian, injured by an automobile, was injured by falling into the side of the vehicle, and not by being struck, the case is one of unavoidable accident, and the pedestrian cannot recover. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.*] 8. NEGLIGENCE (§ 121*)-Burden of PROOFEVIDENCE. In an action for personal injuries, the burden is on the plaintiff to show that defendant was negligent. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 217-220, 224-228, 271; Dec. Dig. § 121.*] 9. TRIAL (§ 306*)-CONFLICTING EVIDENCE REVIEW BY JURY. Where the testimony is conflicting, the jury should endeavor to reconcile it. and, if this cannot be done, give their verdict upon the testimony of the greatest weight and credence, in doing which the witness' means of knowledge of the facts, their intelligence, apparent truthfulness, and fairness, and facts or circumstances shown by evidence with respect to the witnesses, must be considered. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 731, 742; Dec. Dig. § 306.*] 10. DAMAGES (§ 95*) - PERSONAL INJURIES MEASURE OF DAMAGES. In an action for personal injuries, the damages should be such as will reasonably compensate plaintiff for his proven expenditures for medical services, and for the injuries he has sustained and proved, including therein his loss of time and wages, his pain and suffering in the past, and such as may come to him in the future, and for any permanent injuries, and for such sum as will cover his pecuniary loss on account of any impaired ability to earn a living in the future as a result of the accident. Argued before CONRAD and LEY, JJ. Caleb E. Burchenal and W. W. Knowles, both of Wilmington, for plaintiff. Daniel O. Hastings, City Sol., and William S. Hilles, both of Wilmington, for defendant. (2) As to the consideration to be given if plaintiff was using the bed of the street in a state of intoxication at the time of the accident, Heinel v. People's Railway Co., 6 Pennewill, 437, 67 Atl. 173. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 222-229; Dec. Dig. § 95.*] WOOLLEY, J. (charging the jury). GentleAction by James M. Brown against the men of the jury: This is an action instituted Mayor and Council of Wilmington. Verdict by James M. Brown, the plaintiff, against for plaintiff. the mayor and council of Wilmington, the WOOL- defendant, to recover damages for personal injuries which he alleges he sustained by being run into and knocked down by an automobile driven and operated by one of the defendant's servants. In support of this action the plaintiff claims, that on the evening of April 20, 1912, he was walking southwardly with a throng of people on the roadway of King street, near the westerly curb thereof, between Third and Second streets in the city of Wilmington; that while in the exercise of proper care and caution on his part, the defendant, by its servant, drove its police patrol, being an automobile or auto car, down the street upon which he was lawfully and carefully walking, at a high and dangerous rate of speed, without giving to Counsel for plaintiff in support of their him .any warning of its approach, and thus prayers cited: negligently and recklessly ran into and upon him, causing the injuries for which he now seeks damages. Action on the case (No. 61, March term 1913) to recover damages for personal injuries alleged to have been sustained by the plaintiff by being run into and knocked down by an automobile (being the police patrol) driven and operated by one of the defendant's servants, on King street between Second and Third, in the city of Wilmington. The facts appear in the charge of the court. (1) As to the right of a traveler on foot to use a public street the same as a vehicle of any kind, and the degree of care required of a driver of an automobile, Hannigan v. Wright, 5 Pennewill, 537, 63 Atl. 234; Simeone v. Lindsay, 6 Pennewill, 224, 65 Atl. 778. (2) As to care, speed and warning in the operation of an automobile upon public streets of a city, Lampe v. Jacobsen, 46 Wash. 533, 90 Pac. 654. (3) As to the correlative rights, care and duty of a traveler on foot and the owner of an automobile or person operating it under owner's direction on a public street, Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224, 3 L. R. A. (N. S.) 345, 4 Ann. Cas. 396. The defendant denies liability in this action and maintains that, instead of its servant running its police patrol into the plaintiff, the plaintiff in fact ran into the police patrol, and that if the injuries to the plaintiff were the result of negligence, the negligence was not that of the defendant, but was the negligence of the plaintiff himself. It is admitted that the mayor and council of Wilmington, the defendant, owned and through its servant, operated the motor vehicle, known generally as a police patrol, at the time the plaintiff received his injuries. Such being the case, the acts of the driver of the patrol became the acts of the defend (4) As to care required in driving an au-ant, and negligence on his part in operating tomobile, if undertaking to pass another on the street, going in the same direction, Simeone v. Lindsay, 6 Pennewill, 224, 65 Atl. 778. (5) As to measure of damages for personal injuries to a foot traveler on a public street resulting from negligence in operating an automobile, Simeone v. Lindsay, 6 Pennewill, 224, 65 Atl. 778; Murphy v. Hughes Bros. & Bangs, 1 Pennewill, 250, 40 Atl. 187; Ray v. D. S. Steel Co., 2 Pennewill, 525, 47 Atl. 1017; Boyd v. Blumenthal & Co., 3 Pennewill, 564, 52 Atl. 330; Winkler v. P. & R. R. R. Co., 4 Pennewill, 80, 53 Atl. 90. the machine, if any, becomes the negligence of the defendant, for which the defendant may be held liable in damages. [1] It is admitted that King street, upon which the accident in question occurred, is a public road or highway. A public highway is open in all its length and breadth to the reasonable, common and equal use of the people, on foot and in vehicles. The owner of an automobile has the same right as the owner of other vehicles to the use of the highway, and like them he must exercise care and caution for the safety of others. A traveler on foot has the same right to Counsel for defendant in support of their the use of the public streets of a city as a prayer cited: vehicle of any kind. In using any part of (1) As to the duty of traveler on foot in a the streets all persons are bound to the expublic street to use reasonable care and his ercise of reasonable care to prevent collisions senses to avoid injury, Cecchi v. Lindsay, 1❘ and accidents. Such care must be in proporBoyce, 189, 75 Atl. 376. tion to the danger or the peculiar risks in each case. Where one undertakes to pass another on the highway, going in the same direction, he must take reasonable care to exercise that right, so as not to injure another, and is liable for the consequences of his negligence. It is the duty of the person operating an automobile or any other vehicle, upon the public streets of a city to use ordinary care in its operation, to move at a rate of speed reasonable under the particular circumstances and cause it to slow up or to stop if need be, where danger is imminent and could, by the exercise of reasonable care, be seen or known in time to avoid accident. Greater care is required at street crossings and in the more crowded streets of a city than in the less obstructed streets in the open or suburban parts. There is a like duty of exercising reasonable care on the part of the pedestrian. The person having the management of the vehicle and the traveler on foot are both required to use such reasonable care as the circumstances of the case demand, an exercise of greater care on the part of each being required where there is an increase of danger. The right of each must be exercised in a reasonable and careful manner, so as not unreasonably to abridge or interfere with the rights of the other, and both are bound to the reasonable use of all their senses for the prevention of accident, and the exercise of all such reasonable caution as ordinarily careful and prudent persons would exercise under like circumstances. Grier v. Samuel, 86 Atl. 209, 211. The basis of this action is negligence. The negligence charged by the plaintiff to the defendant, is not that it was operating its police patrol at a rate of speed in excess of that allowed by statute, for by the statute the speed of motor vehicles used by the police in the performance of duty, is exempted from the limits prescribed for motor vehicles generally. Laws of Del. vol. 25, c. 120, § 14. The negligence charged to the defendant is simply that it operated its police patrol at a high and dangerous rate of speed, when considered with regard to the place and the circumstances of the occasion, and without giving the plaintiff timely warning of its approach, whereby and by reason of which he was injured. [2] If the defendant's servant, at the time of the accident, was operating its car at a high and dangerous rate of speed under the circumstances, or failed to give the plaintiff timely warning of its approach, by reason of which the injuries were inflicted, and the plaintiff at the time was on his part in the exercise of due care and caution, and free from negligence that contributed to the accident, the servant of the defendant was negligent, the defendant is liable, and your verdiet should be for the plaintiff. [3-5] If the negligence of the plaintiff, however, contributed to and entered into the accident at the time the injuries were received, was also guilty of negligence, because in such case the plaintiff himself would be guilty of contributory negligence. Simeone v. Lindsay, 6 Pennewill, 224, 227, 65 Atl. 778. Voluntary intoxication of the plaintiff may be considered by the jury in determining whether at the time of the accident he was taking such care of his safety as would be required of a reasonably prudent man under the circumstances. Heinel v. People's Ry. Co., 6 Pennewill, 431, 67 Atl. 173. The plaintiff, however, would be entitled to recover notwithstanding there had been some negligence on his part, if it was the negligence of the defendant alone that was the proximate or immediate cause of the accident, in other words, if notwithstanding any previous negligence of the plaintiff the defendant could have prevented the accident by the use of ordinary and reasonable care. Simeone v. Lindsay, 6 Pennewill, 224, 227, 65 Atl. 778. [6, 7] It is a rule of law that one driving or operating a vehicle is bound to consider the lack of capacity of those in his way to care for their own safety, when such incapacity is known or should have been known by him, and the law exacts greater care toward those who are unable to care for themselves, as children, blind persons and in fact drunken persons, when such incapacity is known or should have been known by the one driving or operating a vehicle. If, however, in this case you find from the testimony that at the time of the accident complained of, the plaintiff was intoxicated, and that the driver of the police patrol did not know it or by the exercise of reasonable care on his part would not have known it or would not have known he was so intoxicated as to be unable to take ordinary care of himself, and if you shall further find that the accident occurred not by the patrol striking the plaintiff, but by the plaintiff falling into the side of the patrol, the case then becomes one either of pure accident or contributory negligence, and in either event, your verdict should be for the defendant. [8] A pure accident without negligence on the part of the defendant is not actionable, and if you should believe that it was of such character it would come under the head of unavoidable accident and the plaintiff cannot recover. To enable the plaintiff to recover at all in this action, he must have shown to your satisfaction by the weight of the evidence that the negligence which caused the accident, if there was any negligence, was the negligence of the defendant. The burden of proving such negligence is upon the plaintiff, and the defendant can be held liable only for such negligence as constitutes the proximate or immediate cause of the injury. [9] When the testimony is conflicting, you should endeavor to reconcile it, if possible, so that the whole may harmonize. If this cannot be done, then it becomes your duty Dig. $$ 332-335, 338-341, 365; Dec. Dig. §§ 139, 140.*] 3. PRINCIPAL AND AGENT (§ 103*)—-AUTHOR ue of the testimony on the respective sides, to be most worthy of belief, in view of the inand give your verdict to that side upon which telligence, interest, and bias of the witnesses. the testimony is of the greatest weight or [Ed. Note.-For other cases, see Trial, Cent. preponderance and most worthy of credit. In estimating such weight you are to consider the witness' means of knowledge of the facts about which they have spoken, their intelligence, apparent truthfulness and fairness, and any other facts or circumstances shown by the evidence with respect to the witnesses that disclose the reliability of their statements. ITY OF AGENT EVIDENCE. Whether a mother, selling personalty at public auction, authorized her son to make a warranty, may be implied from the general authority which she permitted him to exercise in managing the sale. " [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 278-293, 353-359, 367; Dec. Dig. § 103.*] 4. AUCTIONS AND AUCTIONEERS (§ 8*)-WARRANTY-RELIANCE BY BUYER. asserted at the sale that a horse was good A seller at public vendue, who affirmativeand sound, except for a visible injury, and commended its good qualities, did not thereby warrant it as to soundness; but if, at the time of the sale, he made representations as to its soundness as an inducement to a sale, and the buyer relied thereon, there was a warranty of soundness, whether the seller knew of any unsoundness. If you are not satisfied from the weight of the testimony that the injuries to the plaintiff were caused by the negligent running and operation of the machine, as alleg-ly ed, your verdict should be in favor of the defendant, and if you believe that there was any negligence on the part of the plaintiff operating at the time of the accident which contributed to the injuries he received, your verdict likewise should be in favor of the defendant. Or if you believe that plaintiff's injuries were the result of pure accident, and could not have been prevented or avoided by the exercise of reasonable care on the part of the defendant, your verdict should be in favor of the defendant. [10] If you should find for the plaintiff your verdict should be for such a sum as will reasonably compensate him for his proven expenditures for medical services, and for the injuries he has sustained and proved, including therein his loss of time and wages, his pain and suffering in the past, and such as may come to him in the future, resulting from the accident, and also for any permanent injuries shown by the evidence to have been received, and for such sum as you believe will cover his pecuniary loss on account of any impaired ability to earn a living in the future as a result of such accident. [Ed. Note. For other cases, see Auctions and Auctioneers, Cent. Dig. §§ 25-40; Dec. Dig. § 8.*] 5. SALES (§ 284*)-CONTRACTS-WARRANTYBREACH. A warranty of the soundness of a horse sold is breached, where a disease not visible and palpable at the time of sale impaired its usefulness, whether known to the seller or not; but the warranty is not breached where, subsequently to the sale, the horse becomes diseased while in the possession of the buyer. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 803-805; Dec. Dig. § 284.*] 6. SALES (§ 262*)-WARRANTY-KNOWLEDGE OF BUYER. edge of its qualities at the time of the sale, A buyer of a horse, who had full knowland who relied on his own judgment and observation, and not on a warranty, cannot defeat a recovery of the price on the ground of breach of warranty. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 736-739; Dec. Dig. § 262.*] 7. SALES (§ 439*) - BREACH OF WARRANTY BURDEN OF PROOF. A buyer of a horse, who seeks to defeat a recovery of the price on the ground of breach of warranty of soundness, must prove a warranty of soundness made just before or at the time of sale, and that unsoundness existed at the time of sale. [Ed. Note.-For other cases, see Sales, Cent., Dig. §§ 1258-1260; Dec. Dig. § 439.*] 8. SALES (§ 363*)-CONTRACTS-RESCISSIONDELIVERY QUESTION FOR JURY. Whether a buyer of a horse redelivered it to the seller, so as to authorize a rescission of the contract of sale, is for the jury, in view of the circumstances showing the seller's change of residence between the time of sale and the time of the attempted return by the buyer. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 1064; Dec. Dig. § 363.*] 9. SALES (§ 126*)-CONTRACTS-RESCISSIONREASONABLE TIME. Where the terms of a contract of sale are in dispute until fixed by the jury, the question whether the buyer rescinded within a reasonable time is for the jury under the circumstances of the case, though what constitutes a rea sonable time within which to rescind a contract a public vendue, held upon her premises in is ordinarily a question of law. this county on the 5th day of October, A. D. [Ed. Note. For other cases, see Sales, Cent. 1912; nat the price of the mare was $240 Dig. §§ 313-317; Dec. Dig. § 126.*] and the price of the rake was $8, the differ10. SALES (§ 126*)-CONTRACTS-RESCISSION-ence between the aggregate of the two sums REASONABLE TIME. Where the seller of a horse warranted it as against invisible defects, and also warranted that a visible injury would heal and make the horse sound, the buyer could keep the horse for such time as would be reasonable for the injury to become better or worse before rescinding for breach of warranty. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 313-317; Dec. Dig. § 126.*] 11. SALES (§ 428*)-CONTRACTS-RESCISSION -LIABILITY OF SELLER. Where a buyer makes a proper and timely rescission of the contract of sale for breach of the seller's warranty, the seller, suing for the price, is liable to the buyer, under notice of recoupment, for the damages caused by the breach. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1214-1223; Dec. Dig. § 428.*] 12. SALES (§ 287*)-CONTRACTS-BREACH OF WARRANTY. Where a seller under a warranty induced the buyer to delay the return of the article sold for breach of warranty, the seller waived his right to a return within the time that might be considered reasonable after first discovering the breach. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 811-816; Dec. Dig. § 287.*] Action by Mary Dietrich against Mabel P. Badders and another. Verdict for plaintiff. Argued before WOOLLEY and RICE, JJ., sitting. William F. Kurtz, of Wilmington, for plaintiff. Reuben Satterthwaite, Jr., of Wilmington, for defendants. Action of assumpsit upon a promissory note, made by the defendants, payable to the order of the plaintiff, for the sum of $259.92, being the price bid for a mare and a rake, at a public vendue of certain property of the plaintiff, together with lawful interest and protest charges. The defense was partial failure of consideration, and damages sustained, by way of recoupment, the contention being that the mare was warranted to be sound or no sale, while in fact she was foundered at the time of sale, and damages were sustained in excess of plaintiff's demand. The facts appear in the charge of the court. WOOLLEY, J. (charging the jury). This action was instituted by the plaintiff against the defendants upon a promissory note, made by the latter to the order of the former, whereby the plaintiff seeks to recover from the defendants the sum of $259.92, the prinIcipal of the obligation, with lawful interest thereon from the 5th day of October, A. D. 1912, together with the sum of $1.71 protest charges. The plaintiff proves that the note was given in payment of the purchase price of a mare and a rake, sold by the plaintiff and purchased of her by the defendants at and the face of the note being the interest added; that the note was protested and the sum demanded remains unpaid. The defendants admit the purchase of the mare and rake at the prices stated, and that the note was given in payment therefor, but for defense avail themselves of the terms of a statute of this state, chapter 588, volume 20, Laws of Delaware, which provides "that want or failure in whole or in part of the consideration of bills and notes for the payment of money may be shown as a defense total or partial," when, as in this case, the action is between the original parties thereto, and in proof of a total failure of the consideration of the note, maintain, that the mare was sold by the plaintiff under an express warranty of her soundness, that at the time of the sale and for a period theretofore and until thereafter returned, the mare was unsound, which condition was discovered by them shortly if not immediately after receiving her, that they promptly acquainted the plaintiff with the condition of the mare, by notifying the plaintiff in person the day after the sale and twice later by informing her son, who it is claimed had at the vendue announced the mare to be sound, and as the mother's agent represented her in the transaction, that the mare was sick, and after caring for and doctoring the mare from the date of purchase until the 30th day of March following, working her as it is claimed, but two times during this interval, they returned her to the plaintiff. Upon this representation of facts the defendants maintain there is a total failure of the consideration for the note, in that the contract of sale was vitiated by a breach of the plaintiff's alleged warranty of the soundness of the mare and that by way of recoupment, the defendant sustained damages in the manner testified to and to an amount in excess of the total of the plaintiff's demand against them upon the note, for money laid out and expended in the care of the mare, the cost of her keep, medical at tendance, medicines, etc. In reply, the plaintiff maintains that in the sale of the mare, neither she nor any one with her authority warranted the mare to be sound; but if it should be found that by expression or implication, such a warranty may be attributed to her, then in fact the mare was sound at the time of the sale and consequently she committed no breach of warranty as claimed by the defendants. [1] The plaintiff maintains that under the statute which permits the maker of a note to show a partial or total failure of consideration of the note, when sued upon, the maker of the note may not include and embrace |