weapon, malice is presumed, in the absence of Where a killing was done with a deadly evidence to the contrary; and accused has the burden of showing the contrary. sideration of all the evidence, you are satis- [6. HOMICIDE (§ 146*)- MURDER - MALICE— fied beyond a reasonable doubt that James BURDEN OF PROOF. H. S. Gam intentionally or purposely pointed a gun at or towards Edward Gam, your verdict should be guilty; but if there has been proved anything that raises in your minds a reasonable doubt that the defendant so pointed the gun, or that he intended to so point it, then the defendant is entitled to the benefit of that doubt, and your verdict should be not guilty. But this doubt must not be a mere fanciful, vague, or speculative doubt, but a reasonable, substantial doubt, arising from the evidence and remaining in your minds after a careful consideration of the testimony-such a doubt as reasonable, fair-minded, and conscientious men would entertain under all the facts and circumstances of the case. Verdict, not guilty. STATE v. MIELE. (Court of Oyer and Terminer of Delaware. New Castle. Oct. 1, 1909.) 1. HOMICIDE (§ 22*)—"MURDER OF THE FIRST DEGREE." "Murder of the first degree" is committed when the killing is done with express malice aforethought; that is, with a sedate, deliberate mind, and formed design to kill. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 35-38; Dec. Dig. § 22.5 [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 269; Dec. Dig. § 146.* For other definitions, see Words and Phrases, "Manslaughter" is committed when one person unlawfully kills another without malice; and to reduce the crime to manslaughter the provocation must be so great as to produce such a transport of passion as to render the person for the time being deaf to the voice of reason. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 52; Dec. Dig. §§ 31, 43.* For other definitions, see Words and Phrases, vol. 5, pp. 4338-4342; vol. 8, p. 7715.] 9. HOMICIDE (§ 119*)-SELF-DEFENSE. A slight assault will not excuse or justify the killing of the assailant with a deadly weapon, and in repelling an assault no more force may be used than is necessary for the purpose, and where the person assailed uses in his defense greater force than is necessary he becomes the aggressor. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 172-174; Dec. Dig. § 119.*] For other definitions, see Words and Phrases, vol. 5, pp. 4637-4641; vol. 8, p. 7727.] 2. HOMICIDE (§ 23*)—"MURDER OF THE SEC-10. OND DEGREE." "Murder of the second degree" is committed when the killing is done with implied malice, where there is no deliberate mind or formed design to take life or to perpetrate a crime punishable with death, but where the killing is without justification or excuse, and without sufficient provocation to reduce the offense to manslaughter. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 35-40; Dec. Dig. § 23.* For other definitions, see Words and Phrases, vol. 5, pp. 4641, 4642; vol. 8, p. 7727.] 3. HOMICIDE (§ 23*)-MURDER OF THE SECOND DEGREE EVIDENCE. Where a killing was committed under the influence of a wicked and depraved heart, or with cruel and wicked indifference to human life, the law will imply malice, and make the killing murder of the second degree. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 35-40; Dec. Dig. § 23.*] HOMICIDE (§ 151*)—SELF-DEFENSE—Bur DEN OF PROOF. The burden of establishing self-defense rests on accused. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 276-278; Dec. Dig. § 151.*] 11. HOMICIDE (8 118*)-SELF-DEFENSE-DUTY TO RETREAT. though the attack was of such a character as Where decedent first attacked accused, belief that he was in danger of death or great to create in the mind of accused a reasonable bodily harm, accused must retreat, where that can be done with safety, or he must use other reasonable means within his power to avoid killing decedent. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 168-171; Dec. Dig. § 118.*] 12. HOMICIDE (§ 116*)-SELF-DEFENSE. Where one is attacked, and from the character thereof he has reasonable cause to be 4. CRIMINAL LAW (§ 24*) - MALICE - EVI-lieve, and does believe, that he is in imminent DENCE. Malice is implied by law from every cruel act committed by one person against another, however sudden the act may be, as the law considers that he who does a cruel act voluntarily does it maliciously. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 26, 27; Dec. Dig. § 24.*] 5. HOMICIDE (§ 11*)-MALICE EVIDENCE. Malice is an essential element of murder, and must be proved, like any other material element of the charge. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 15, 16; Dec. Dig. § 11.*] danger of death or great bodily harm, and he has no other reasonable means of avoiding death or great bodily harm than to kill assailant, the killing is a justifiable act of self defense. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 164-167; Dec. Dig. § 116.*] 13. HOMICIDE (§ 116*)-SELF-DEFENSE. To justify one in killing another, it is not sufficient that he at the time believed himself to be in danger of death or great bodily harm; but the circumstances must have been such in the judgment of the jury as to justify a reasonable man in such belief, and, further, that there was no reasonable way of escaping from such dan- | claims that he committed the act in the necger, except by slaying assailant. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. § 116.*] 14. HOMICIDE (§ 113*)-SELF-DEFENSE. Where accused committed the first assault on decedent, and then withdrew from the combat, and retreated with the honest intent to escape, and was pursued and unlawfully as saulted by decedent, the latter became the aggressor, and accused had the right in self-defense to use the force necessary under the circumstances to repel the attack and protect himself. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 151, 152; Dec. Dig. § 113.*] 15. CRIMINAL LAW (§ 381*)-PROOF OF GOOD CHARACTER EFFECT. The good character of accused, when proved, must be taken in connection with all the evidence, and must be given such weight under the circumstances as in the judgment of the jury it is entitled to. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 846; Dec. Dig. § 381.*] 16. CRIMINAL LAW (§ 742*)-WEIGHT OF TESTIMONY-CONFLICTING EVIDENCE. Where there is a conflict in the testimony, the jury must reconcile the conflict, if they can; and, if they cannot, they should accept such testimony as they consider under the circumstances most worthy of belief, having regard to the intelligence of the witnesses, their interest or bias, and their opportunity of observing the things respecting which they testified. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1719-1721; Dec. Dig. § 88 742.*] essary and lawful defense of his person. He contends that he was pursued, struck, knocked down, and kicked in the head by several persons, and that when he arose he was in such a mental condition, caused by such beating and kicking, that he was incapable of thinking intelligently at the time Walker was cut, or of discerning who were attacking him. It is not necessary for us to explain to you at length what constitutes murder of the first degree, because, although indicted for such crime, the Attorney General has stated to you that he does not ask for a verdict of guilty of murder of the first degree. We will say, however, in order that you may the more clearly understand what constitutes murder of the second degree, that murder of the first degree is committed where the killing is done with express malice aforethought-with a sedate, deliberate mind and formed design to kill. The state does contend that the prisoner is guilty of murder of the second degree, and it becomes our duty to instruct you with more particularity in respect to such crime. Murder of the second degree is where the killing is done with implied malice. Implied malice is an inference or conclusion of the law from the facts found by the jury. Murder of the second degree is where there was no deliberate mind or formed design to take In a criminal case accused is presumed to life or to perpetrate a crime punishable with be innocent until his guilt is proved beyond a "reasonable doubt," and where, after consid-death, but where the killing nevertheless was ering all the evidence, the jury should enter- done without justification or excuse, and tain a reasonable doubt, they should acquit him; without provocation, or without sufficient but such doubt must not be a mere fanciful. vague, or speculative doubt, but a substantial doubt, after a consideration of all the evidence, and such a doubt as reasonable, fair-minded men would entertain under the circumstances. 17. CRIMINAL LAW (§ 561*)-"REASONABLE DOUBT." [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1267; Dec. Dig. § 561.* For other definitions, see Words and Phrases, vol. 7, pp. 5958-5972; vol. 8, p. 7779.] Michael Miele was indicted and tried for murder. Verdict of guilty of murder in the second degree. Argued before PENNEWILL, C. J., and CONRAD and WOOLLEY, JJ. Andrew C. Gray, Atty. Gen., and Josiah O. Wolcott, Deputy Atty. Gen., for the State. J. Frank Ball, for defendant. PENNEWILL, C. J. (charging the jury). Michael Miele, the prisoner at the bar, is charged in this indictment with murder of the first degree; it being alleged that he did, on the 14th of July, 1909, kill one Vincent H. Walker, in this city, by cutting or stabbing him with a knife, inflicting thereby a mortal wound, from which the said Walker died. It is not denied by the defendant that he inflicted the blow or wound which caused the death of Vincent H. Walker, but he provocation to reduce the offense to manslaughter. And where the circumstances surrounding the case show that the killing was committed under the influence of a wicked and depraved heart, or with cruel and wicked indifference to human life, the law implies malice and makes the offense murder of the second degree. act committed by one person against another, Malice is implied by law from every cruel however sudden the act may be; for the law considers that he who does a cruel act voluntarily does it maliciously. Malice is an essential element of the crime charged in this indictment, and it must be proved, just as any other material element of the charge. Without malice there can be no murder. When the killing is shown to have been done with a deadly weapon, malice is presumed, in the absence of evidence to the contrary, and the burden of showing the contrary is on the accused; for the usual and probable consequences of the act are presumed in law to have been intended by the person using the deadly weapon. A deadly weapon is such a weapon as is likely to produce death, when used by one person against another; such, for example, as a knife, or a piece of wood, of sufficient size to cause | cumstances of the case as disclosed by the death to one who may be struck by it. And witnesses. In order to justify or excuse the if death is produced by the use of a deadly weapon, great must be the provocation to reduce the killing from murder to manslaughter. Manslaughter is usually committed where one in a sudden affray, in the heat of blood, or in a transport of passion, without malice, inflicts a mortal wound, without time for reflection, or for the passions to cool. It is where one person unlawfully kills another without malice. In order to reduce the crime to manslaughter, the provocation must be very great-so great as to produce such a transport of passion as to render the person for the time being deaf to the voice of reaWhile murder proceeds from a wicked and depraved heart and is characterized by malice, manslaughter results, not from malice, but from unpremeditated and unreflecting passion. We have been asked by counsel for the prisoner to charge you in respect to the law of self-defense. We will say that a slight assault will not excuse or justify the killing of the assailant with a deadly weapon. The burden of establishing self-defense to the satisfaction of the jury rests upon the accused. In repelling or resisting an assault, no more force may be used than is necessary for the purpose, and if the person assailed use in his defense greater force than is necessary he becomes the aggressor. accused in striking the fatal blow, it is not sufficient that he at the time believed himself to be in danger of death or great bodily harm at the hands of the deceased; but the circumstances must have been such, in the judgment of the jury, as to justify a reasonable man in such belief, and, further, that there was no reasonable way of avoiding or escaping from such danger except by slaying the assailant. Even though you should be satisfied that the prisoner committed the first assault, if you should further believe that he withdrew from the combat and retreated, with the honest intent to escape, and was pursued and unlawfully assaulted, then his assailants became the aggressors, and the prisoner had the right in self-defense to use so much force as was necessary under the circumstances to repel the attack upon him and protect himself. If you are satisfied that the prisoner, after being so attacked and knocked down, arose and, drawing a knife, inflicted the fatal blow upon Walker, when he knew, or should have known, that Walker was not one of the persons who had assaulted him, or if it was not necessary in order to save his life or protect himself from great bodily harm that he should strike the fatal blow, his act was an unlawful one. If you beWalker, was in such a condition, caused by lieve that the prisoner, at the time he cut that he was incapable of thinking intelbeing beaten and kicked about the head, If the deceased first attacked the accused, even though the attack was of such a char-ligently, or of discerning, who the attacking acter as to create in the mind of the cused a reasonable belief that he was in danger of death or great bodily harm, it was his duty to retreat, if he could safely do so, or to use such other reasonable means as were within his power to avoid killing his assailant. No one may take the life of another, even in self-defense, unless there is no other available means of escape from death or great bodily harm. If one is attacked, and from the character of such attack he had reasonable cause to believe, and did believe, that he was in imminent danger of death or great bodily harm, and he had no other reasonable means of avoiding or preventing death or great bodily harm, then the killing of the deceased would be a justifiable act of self-defense. If, on the other hand, the attack was of a trifling character, and manifested no purpose or intention on the part of the assailant to inflict any serious injury, the repelling of such attack by the use of a weapon likely to produce death would not be an act of justifiable self-defense. In ascertaining whether the accused was in any danger of injury at the hands of the deceased when he struck the mortal blow, and, if in such danger, whether he took the proper precautions to avoid such danger, tion in reaching a verdict in the case. parties were, you should consider such condi The good character of an accused person, when proved, is to be taken in connection with all the other evidence, and is to be given such weight, under all the facts and circumstances of the case, as in the judgment of the jury it is entitled to. Where there is conflict in the testimony, it is the duty of the jury to reconcile such conflict, if they can. If they cannot, they should accept such testimony as they consider under all the circumstances is most worthy of their credit and belief, having regard to the ignorance or intelligence of the witnesses, their interest or bias, and the opportunity which they had of observing and knowing the things respecting which they testified. In order to convict the prisoner it is incumbent upon the state to prove beyond a reasonable doubt every material ingredient of the crime charged. In every criminal case the accused is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. If, after carefully and conscientiously considering and weighing all the evidence in the case, you should entertain a reasonable doubt of the guilt of the prisoner, you should REQUIRED. verdict should be not guilty. But such a 15. STREET RAILROADS (§ 98*)-OPERATION-INdoubt must not be a mere fanciful, vague, JURIES-CONTRIBUTORY NEGLIGENCE CARE or speculative doubt, but a reasonable, substantial doubt, remaining in your minds after a careful consideration of all of the evidence, and such a doubt as reasonable, fairminded, and conscientious men would entertain under all the facts and circumstances as proved in the case. One whose vision is obstructed on approaching a street car crossing must avail himself of his knowledge of the locality, and look for approaching cars in time to avoid collision, and is negligent if he does not do so. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 204-208; Dec. Dig. § 98.*] 6. STREET RAILROADS (§ 102*)-OPERATIONINJURIES-ACTIONS-PROXIMATE CAUSE. If you are satisfied that the prisoner stabbed the deceased in necessary and lawful self-defense, as we have defined it to you, your verdict should be not guilty. If, how-negligence, it is not liable. ever, you are satisfied that the prisoner killed the deceased unlawfully, but without malice, your verdict should be guilty of manslaughter. But if you believe that the prisoner killed the deceased maliciously, without justification or excuse, and without sufficient provocation to reduce the offense to manslaughter, your verdict should be guilty of murder of the second degree. If intestate's death by being struck by a street car was not the result of the company's [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 186, 194, 203; Dec. Dig. § 102.*1 Verdict, guilty of murder of the second degree. 7. NEGLIGENCE (§ 121*)-BURDEN OF PROOF. 8. NEGLIGENCE (§ 134*)-ACTIONS-SUFFICIEN- Plaintiff must prove negligence to the jury's satisfaction by preponderance of evidence. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 267-273; Dec. Dig. § 134.*] LENKEWICZ v. WILMINGTON CITY RY. 9. NEGLIGENCE (§ 122*)-PRESUMPTIONS-CON CO. (Superior Court of Delaware. New Castle. March 13, 1908.) 1. STREET RAILROADS (§§ 81, 98*)-OPERATION -RIGHT TO USE STREETS. The public, as well as a street railroad company, has the right to use the streets; but, in using them, each is bound to exercise reasonable care to prevent accidents. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 172-177, 204-208; Dec. Dig. §§ 81, 98.*] 2. STREET RAILROADS (§ 81*) CARE REQUIRED. OPERATION— The employés in charge of street cars must use reasonable care to see that the cars move at a reasonable speed, and slow up, or stop, if necessary, where danger of collision is imminent, and could, by exercising reasonable care, be seen in time to prevent it. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 172-177; Dec. Dig. § 81.*] 3. STREET RAILROADS (§ 81*)- OPERATION — CARE REQUIRED-CROSSING WARNINGS. Street car employés must give proper warning of the car's approach at a public highway crossing. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 172-177; Dec. Dig. § 81.*] 4. STREET RAILROADS (§§ 81, 98*)-OPERATION -CARE REQUIRED-MUTUAL DUTIES OF COM- A street railroad company and pedestrians are both required to exercise reasonable care in the use of streets, and the rights of each must be exercised so as not to unreasonably interfere with the rights of the other, a greater degree of care by both being required as the danger increases; and both the motorman and the pedestrian approaching the car must use their senses of sight and hearing, and exercise such reasonable caution as ordinarily prudent persons in like circumstances would exercise to prevent accidents. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 172-177, 204-208; Dec. Dig. $$ 81, 98.*] TRIBUTORY NEGLIGENCE. There is no presumption of contributory negligence. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 221-223, 226-234; Dec. Dig. § 122.*] 10. STREET RAILROADS (§ 112*)- INJURIES NEGLIGENCE-PRESUMPTIONS. No presumption of the company's negligence arises from the mere fact that one is struck by a street car. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 227; Dec. Dig. § 112.*] 11. NEGLIGENCE (§ 136*)-ACTIONS-JURY QUESTION. Whether negligence exists in a given case is for the jury. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] 12. NEGLIGENCE (§ 1*)-DEFINITION. "Negligence" is the want of such care as a reasonably prudent person would exercise under similar circumstances. [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. STREET RAILROADS (8 81*)-OPERATION"ORDINARY CARE." The "ordinary care" required in the operation of electric street cars imports all the care and discretion which the place of the danger and the occasion requires, and such care increases or diminishes as the danger of accident increases or diminishes in the operation of the cars. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 172-177; Dec. Dig. § 81.* For other definitions, see Words and Phrases, vol. 6, pp. 5029-5042; vol. 8, pp. 7739, 7740.j 14. STREET RAILROADS (§ 101*) - CONTRIBUTORY NEGLIGENCE-EFFECT. If intestate's own negligence was the proximate cause of his death by being struck by a street car, or proximately contributed thereto, | tance beyond Stroud street; that the cars of his administrator cannot recover therefor. [Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 101.*] 15. STREET RAILROADS (§ 103*) - CONTRIBUTORY NEGLIGENCE-LAST CHANCE DOCTRINE. If intestate's death was proximately caused by a street car company's negligent failure to use ordinary care to prevent injuring him after be coming aware of his danger, the company would be liable, though intestate was also negligent; his negligence not being such contributory negligence as bars recovery. the defendant company pass each other on the avenue going in opposite directions; also that Waclaw Lenkewicz was a passenger on an outbound car of the defendant company, and that he got off the car near Stroud street, and, passing in the rear of the car, he attempted to cross the inbound track of the company, whereon another car of the defendant company was approaching in the opposite direction, when he was thrown and [Ed. Note. For other cases, see Street Rail-violently hurled upon the street and beneath roads, Cent. Dig. § 219; Dec. Dig. § 103.*] 16. STREET RAILROADS (§ 114*)-INJURIES TO PEDESTRIANS-WEIGHT OF EVIDENCE-CON TRIBUTORY NEGLIGENCE. In an action against a street car company for intestate's death by being struck by a car, the company must prove contributory negligence, proximately causing the injury, to the jury's satisfaction, by a preponderance of the evidence, in order to escape liability. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 114.*] 17. STREET RAILROADS (§ 93*) - INJURIESNEGLIGENCE. If the motorman saw, or by ordinary care could have seen, a pedestrian on the track in time to stop the car and prevent striking him, the company will be liable for his failure to do so; but if the pedestrian suddenly approached the car, and the motorman used all care to prevent injuring him, but could not stop in time after discovering the danger, the company will not be liable. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*] 18. EVIDENCE (§ 586*)-WEIGHT. As a rule, direct or positive evidence of a fact is entitled to greater weight than evidence of a negative character. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2432-2435; Dec. Dig. § 586.*] the inbound car, whereby he received such injuries that he died the same day. Verdict for plaintiff. Argued before SPRUANCE and BOYCE, JJ. Philip Q. Churchman and Philip L. Garrett, for plaintiff. Walter H. Hayes and Andrew C. Gray, for defendant. BOYCE, J. (charging the jury). Andrew Lenkewicz, the father and administrator of Waclaw Lenkewicz, deceased, seeks by this action to recover from the Wilmington City Railway Company damages for the death of his son, which he alleges was occasioned by the negligence of the defendant company on the 5th day of June, A. D. 1906, in operating one of its electric cars on Maryland avenue, near Stroud street, in this city. The declaration filed by the plaintiff contains nine counts. By these counts it is charged in substance that the defendant company negligently and carelessly ran one of its cars (1) at an improper, high, dangerous, and unlawful rate of speed; (2) without giving any warning by gong, bell, or otherwise; (3) without 19. TRIAL (§§ 139, 140*) - JURY QUESTION-due and proper care in the use, management, WEIGHT AND CREDIBILITY. The jury are the sole judges of the credibility of witnesses and weight of the testimony. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 332-341; Dec. Dig. §§ 139, 140.*] 20. EVIDENCE (§ 598*)-WEIGHT OF EVIDENCE. The verdict in a civil action should be for the party in whose favor the evidence prepon derates. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 598.*] 21. DEATH (§ 95*)-MEASURE OF DAMAGES. In a death action by the administrator against a street car company, the measure of damages would be such sum as decedent would probably have earned during his life, and which would have gone to his next of kin, taking into consideration his age, ability, and disposition to labor, and his habits of life and expenditure. [Ed. Note.-For other cases, see Death, Cent. Dig. §§ 108, 109, 111-115; Dec. Dig. § 95.*] and control of the car, so as to avoid running into the deceased while attempting to cross the inbound track of the defendant company on Maryland avenue. It is conceded that the defendant company has double tracks on said Maryland avenue to and a short distance beyond Stroud street, and that the cars of the defendant company pass each other on the avenue going in opposite directions. It is also conceded that Waclaw Lenkewicz was a passenger on an outbound car of the defendant company, and that he got off the car near Stroud street, and, passing in the rear of the car, he attempted to cross the inbound track of the Company, whereon another car of the defendant company was approaching in the opposite direction, when he was thrown and violentAction by Andrew Lenkewicz, administra- ly hurled upon the street, and beneath the tor of Waclaw Lenkewicz, deceased, against inbound car, whereby he received such inthe Wilmington City Railway Company, to juries that he died the same day. The derecover damages for the death of his son, fendant denies that either it, or its servants alleged to have been occasioned through the in charge of the car, were guilty of any negnegligence of the defendant company-it be- ligence or wrongdoing from which the ining conceded that the defendant company juries complained of were inflicted, but, on had double tracks on Maryland avenue, in the contrary, insists that its servants were, the city of Wilmington, to and a short dis-at the time of the accident, in the exercise of |