
    Clayton H. Ellis v. Annie L. Camper.
    
      (October 19, 1937.)
    Layton, C. J., and Harrington, J., sitting.
    
      James M. Tunnell for plaintiff.
    
      Charles L. Terry, Jr., for defendant.
    Superior Court for Sussex County.
    Action on the Case for Negligence, No. 41,
    February Term, 1937.
   The declaration did not refer to the statute providing for the erection of stop signs at certain intersecting highways, Section 5638 of the Code of 1935, but it did allege that there was a stop sign on the Bowers Beach road; that it was the duty of the defendant to stop at that sign before driving on the main highway; that she had failed to do so and had, therefore, driven into the side of the plaintiff’s automobile, causing him certain injuries and damages.

In support of this allegation, the plaintiff’s evidence showed that there was a stop sign on the Bowers Beach road, near its intersection with the main highway leading from Dover to Milford. It, also, tended to show that the defendant had failed to stop at that sign and that the plaintiff’s injuries and damages were caused thereby. The defendant, on the other hand, produced evidence that tended to show that the plaintiff’s injuries and damages were caused in whole or in part by his own negligence.

In considering and discussing with counsel the instructions to be given to the jury, Layton, C. J., called attention to the fact that no count in the declaration was based on Section 5638 of the Revised Code of 1935, Section 100 of the Motor Vehicle Act, and stated that by reason of that fact the Court could not charge on that statute or on negligence per se.  