The Express.
London, England, 1860-12-29 00:00:00

THE EXPRESS, lititURDA f EVENING, DECEMBER 29, 1860.

Rate Inttlfteaut.

bat, on the other hand, it was urged that the most
skilled workmeu could out prevent such imperfections.
Either the presence of air or of Some foreign matter would
steed in the way: Mr. Nitarnyth, speaking from his ex-
penewie in the maantacture of chain cable", said
that despite all that could be done defects in
the welding must constantly happen. But it was said the
defect must have manifested add before the accident.
Upoe that point the evidence was purely speculative, for no
one saw the tire. The plaintiffs affirmed that the crack
mast have been visible, and that the flaw gradually caused
the rupture. Now. between October preceding and the
month of Febroarythe engine in question travelled between
10,000 and 11,000 intim, while the wheels made between four
and tire million revolutions, supporting a weight of 4 tons
upon • hard iron rail. They had the positive evidence of
the man who tamed the tire upon the List occasion, that
there was no indication of • crack coining to the surface.
Had there been such • crack shavings of the metal must
have come off in the turning. The probabilities were all
one way. He must my, and he said it with great
pain, it was to him • matter of the greatest asto-
nishment how gentlemen of the highest eminence as
regazded scientific attainment", once they were embarked
in a canes, allowed their judgments to be warped.
And with the completed deliberation he was fumed to say
he had never met with so strong an inataace of that as was
afforded by the present case. To tell them that this wheel
could have gone on during four or five month.' while it made
four or live million revolutions,and the engine travelled some
10,000 or 11,000 miles, with a crack in it within one-eighth
to 1.16 th of an inch of the surface, was • most outrageous
attempt upon the minds of the l e and jury. And he
regretted that the more because the views of these gentle-
men were met by the positive evidence on oath of men who
saw the tire. But the second point connected with this
part of the subject was entitled to much more favourable
consideration. The plaintiffs said the flaw had given indi-
cations of its presence shortly before the accident. Upon
that point there was an entire conflict of opinion ; but if
by a reasonably careful examination of the flaw the de-
fendants could have discovered it they were responsible.
I o the next place, did the company continue to use this tire
after its substance had become attenuated below the proper
standard? If the defendants did not know of the flaw, the
jury must consider this question apart from the exist nee
of the flaw. Ind the defendants, by using the tire after its
proper substance was attenuated, bring into play the latent
defect" of the tire? If they did, then such negligence,
although not the immediate yet was the direct cause of the
mischief, and the defendants ought to be held responsible.
But was there negligence as regarded the reduction of the
tire? The evidence on the point was conflicting. The
plaintiffs might Dave laboured under the disadvantage of
not being able to procure practical evidence on the subject,
but with the exception of Mr. Bramwell's they had offered
none. On the other hand, witnesses had come forward on
behalf of the defendants who proved that the tire might
be run down to from lath inch to an inch without the
chance of accident. So much for practice against specu-
lative opinion. Here he would make this observation. It
was not because all persons engaged in a particular de-
partment chose to do that which was imprudent, that
when a disaster at but occurred those who sought compen.
Nation were to be told that only was done which was autho-
rised by univalve! practice. On the other hand, universal
practice, extending over an immense urea of experience,
supplied cogent reasons in favour of any particular comae of
conduct. Therefore it was for the jury to my what weight
should be attached to the practice on the leading railways,
as given in favour of the defendants, on the sub.ject of the
attecuation of the tire. As to the distortion of the tire,
that undoubtedly was of importance. The
the tire ought to have bean parallel, instead ottich the
flanges were thrown out. He believed it was admitted that the
tire'u unusually distorted; but, said the defendants, that was
of no importance, union the inner pert of the flanges was
made thereby to press too tightly upon the rails and im-
pinge upon them. But was the tire too much attenuated?
Mr. Bramwell agreed that if it were so, the eery effect
must be, not its breaking but its loosens. In that
walui.l.g.ot in between the tires, and the effect of the
ro • motion was that it got squeezed out through the
inters • Now the general argument on behalf of the
defendants was that highly capable men, fully sen-
sible of the responsibilities attaching to them, were
in the habit of examining the wheels, and they say they
maw no cracks and saw uo oil squeezing through. That
was a very strong argument. Again, it was affirmed
that there were cracks in the driving wheels, and that
the spokes were broken. Several gentlemen said
they saw the broken spokes. On the other hand, Mr.
Harrison, speaking for the company, said he saw no fault
in the wheels ; said then the company undertook to produce
the wheels. But, said the plaintiffs, the wheels produced
were not the wheels in use upon the occasion of the acci-
dent. In proof of that Sir Charles Fox said he actually
stuck his penknife into a crack, and Mr. Bramwell said he
rubbed his thumb all round one. The company's servants,
however, said that immediately after the accident the engine
bad been removed to Stratford, and there it had remained
ever since. No one could have tampered with it without
their knowledge. Moreover, they load only two *eta of
weeds formed as those were—that was, with a wide
tire and that upon neither 100 nor 101 were any
crack visible. It Was either, therefore, a ode
of the wildest hallucination or of the most seen-
dalous deception Captain Tyler certainty spoke as to
the existence of a crack, but his memory weenot strong
upon the subject. His lordship then proceeded to
the 'y with reaped to the alleged insufficiency chase
to
brake power. The train consisted of eight or ten carriages,
and there was but one brake van, end that was immediately
behind the tender. Now, it was pretty generally admitted
that a train of such dimensions ought to have two brake
vans, but whether, if there wee only one, it ought to be in
the trout or in the rear of the train depended upon circuni-
Ames. Wag there, then, oireligeooa in the company in their
omitting to have a second bake van ? But a more impor-
tant consideration remained. Although the absence of
sufficient brake power might not have caused the accident,
yet might not its presence have greatly mitigated
the digester? Were the jury of opinion that its
presence would have materially mitigated the con-
sequence of the accident? Upon that point they
bad been favoured with much speculative opinion,
but undoubtedly the question turned upon whether a sutb-
dent interval of time elapsed to allow of the brake power
being applied. Could the impetus of the train have been
materially retarded in • space of between 160 and 200 yards?
Colonel Gotland had tried experiments with two brake vans
and with a brake to ever carriage ; those experiments
therefore did not much relieve them. Moreover, in those
cases the guards were always on the lookout for orders, and
were ready to act on the instant. It was said, however,
from five to eight seconds must elapse before the brake
power could be got to act, and three or four more before it
could have an appreciable effect, and they had it from Col.
Clelland that it would take such a train six seconds to have
travelled over 160 yards. In conclusion, then, he would
submit the following questions to the jury :
L Was there negligence in the company es
the • of the tire, and that question subdivicl2ll.ll
under two Was the welding made by the company ?
Was it negligently made ?
2. Supposing the defects in the weldio; to be in-
visible, would they have become visible by a proper exami-
nation ?

COURT OF QUEEN'S BENOR.—Dw. 28.
Sitting, at Nisi Prins after Mkatadmas Term, in London.
(Before the Lord Chief Joanne and • Special Jury.)
STOKES AND mans P. TIE aIIaMCN COUNTIES RAILWAY

colleen.
At length this ease has came to an end, the jury ha
Th trial
cen verdt;it iallveololohew
ikchles: eveonuing.
e the usual
period of the sittings, so that the Christmas vacation of all
engaged upon it was most seriously affected.
It may be recollected the attic.a arose out of what is
known as the Tottenham accident on the Eastern Counties
railway, which occurred in the month of February last. As
the train which left lknibridge at seven o clock in the
morning got within between 160 and 400 wile of the Tot-
tenhem station, the tire of the our leading wheel broke,
and the result was that the train being driven off the
rails, the engine was in the first instance forced
upon the platform, and then, falling hock, the leading
earrtsges were completely crushed up between ii
and the behind earriagee, and seven persons wore
killed and a number of others more or leis severely
injured. In a first-clase cur*, which immediately fol-
lowed the brake-van was seated a Mr. Stokes, on behalf of
whose widow and children the present action is brought.
Mr. Stokes was a maltster at Stratford ; he earned between
7001. and SOUL a year, and was 53 years of age. The
carnage in which he travelled was completely doubled up,
and he himself was so dreadfully injured teat he died in two
hours afterwards. His executors now sue the company, to
recover damages under Lord Ciampbell's Act, for having by
their negligence calmed the death of their testator. As
before mentioned, subetentally the nine issues were raised
in the cue of Manlier lathe Mr ;been Counties Railway Coen-
pany, tried in the Court at laehemier, when a verdict went
for the plaintiff, with 2,0001. damages. Speaking generally,
the contention on the part of the plaintiffs wee, that the
breaking of the tire under the eirolundances stated
Decesearily exhibited negligence on the part of the corn-
piny; and, secondly, supposing the fracture did not
usenet to negligence, yet the esenpeny were responsible,
insenineli as the brake power attached to the train was in-
', sufficient.

The conned engaged were Mr. Edwin James, Q.C., Mr.
Huddleeton, Q.C., and Mr. H. *ills,' for the plaintiffs ;
Mr. Hovill, Q.C., Mr. Hesitant Hallantine, Mr. Hualiby,
sad Mr. Kaye, for the company.
In the course of Thursday, and when the defendants' evi-
dence was at length about to close, a discovery of consi-
derable importance wee made. One of the points urged
*gaunt the defendants was that the driving wheels of the
engine in use on the morning of the accident were in a most
dilapidated condition, and that there were cracks or flaws in
the spokes of one of the wheels. To meet the issue thus
collaterally raised,thedefenckuits produced outside the court
two wheek, which purported to be the driving wheels in
question, and these, when viewed by the jury, displayed no
evidence of the aforesaid cracks or flaws. Subsequently,
however, one of the plaintiffs'wituenies declared that one of
the wheels outside was marked 104, whereas the engine which
drove the train on the morning of the accident was marked
IW. To meet this charge the defendenta produced witnesses
who swore that the wheels outside were the wheels in u
that they had remained at the station ever since, and coil
not have been changed. Wheels were often taken off a
placed aside fur • long time, and it was quite possible that a
*heel marked 101 might have drawn engine 103 on the
morning of the accident. This incident caused a good deal
of surprise, and protracted the age of the trial some
time. Aloof the jurors having pro to the statics this
morning in company with two sesta/ars, reported that he
could not discover say driving wheel. marked lea with dawn
or cracks on it, such ea bad been spokes to.
After to immense mass of evidenos had bees brought for
ward on the side of the defendants,
Mr. Hovill addressed the jury in a speech al between 'we
and three hours,

Mr. James followed this mooing, occupying between ODD
leer and • half and two hours on behalf of the plaintiffs.
The Lord Chief Justice then cherged the jury to the fol•
lowing effect :—lt was unneoessary for him, said his lord.
ehip, after the unremitting attention which the jury
had paid to the case, to point out its enormous importune.
He should, however, beg of them to consider it as
though
it was sow presented to a jury for the first time. Te
action ma brought by the representative of the deceased
Mr. Stokes, on the ground that by the siglignace of their
somata, the company had caused his death. The nein.
game charged might be divided undertwoheada :—let, vela-
nye to the brieking of the tire which was defective owing
to the default of the company, or which baying
bonne defective without that default, wee kept
ase under circtunstancee which trade the orimpany
liable for the oenseqamoces. While, 2ndly, the plaintiffs
affirmed that no matter how the accident was
oocasimed, it was the duty of the company to have P"v
sufficient break power either to have altogether previent
the consequences which followed, or in • great degree to
mitigate their severity. The break power as the morn-
ing in question was both insufficient in quan-
tity, whilst such as it was, it was improperly
distributed. Now it was indisputable that the
accident through which Mr. Stokes lost his life arose front
the giving way of the tire of the near leading wheel of the
elegise. The question, therefen, which the jury would in
the first place have to determine, was, whether the briskly
of the tire resulted from any negligence of the defendeate
for which they could be made responsible. net part of
the subject resolved itself under several branehm In the
fret place, it was said that there was a defect in the weld-
ing of the tire, which was attributable to the company ;
secondly, that though there might have been • conionital
defect in the iron itself, fur which the defendant' were no.
responsible. yet, both as regarded the longitudinal flaw and
the transverse flaw, from the tire having been in content
mer such appearances had tees created as to make the
defects in question visible to careful examination. Either,
then, there was nob sufficient examination, or if there
was, there wee • negligent disregard of the weenie'
which it conveyed. But, then, mourning that neither the
longitudinal flaw nor the imperfect welding was visible,
there reuiained • most serious consideration. The plain-
tiffs charged that the company by using the tire until it
wee worn down to a degree of attenuation inconsistent
with safety had thus brought out the latent defects in the
tire. Now, here again, they were able to start with an in-
disputable conclusion—namely, that the longitudinal flaw
had milking whatever to do with causing the accident.
Only one witness held au opinion to the contrary, but sub-
sequently more scientific evidence established that it was
the giving way of the iron at the welding which led to the
break down. At the same time It was urged that if the
existence of the longitudinal flaw were known the use of
the tire oughtito have been discontinued ; while the °mis-
sies to notice it ',applied strong evidence that the wheel
hei sever been carefully examined. Now, were there ex-
tonal indications of the /mistime al the flaw? There wee
no
positive evidence that there were. All the ',video's
lapse the point was speculative, for no one saw
the flaw before the accident. The witnesses, however,
held that the flaw must have been visible, for two or three
reams. They said, for example, that when the tiro broke,
the parte adjacent to the flaw must have bslgsd out. Well,
the the was produced, and where wee the bulging! How
wens they to ascertain? it was asked of the witnesses, who
replied, certainly not by the eye. Well, if that were so,
was an adhered engine-roan to be charged with negligence
vela filled to discover that which was not virible to the
naked eye ? Bat, said the witnesses, there being an original
defect in the manufacture of the iron, laminations were ap-
parent on iii surface instead of the particles adhering
closely together. In reformat to that the jury were re-
minded what hail Leen the wear and tear of the wheel, and
what must follow from its coming in contact with rough
materials at crossings and other spots. It behoved the
company to deal with the case as practical men.
They onset expect from the company all the skill
and care which prudent nice would exercise for the
refection of the public—but then the jury must carry
that principle into practical working as reasonable men.
What was possible to microscopic science, what WY possible
to the keen searching view of professional engineers who
west into a ease as witnesses, either to attack or defend—
wee cm thing, bat it could not be expected to be the buni-
ons of railway managers to take down scientific witnesses
to ascertain the existence of flaws not visible to the
asked eye. He would ask them then, looking at the frig.
meats of the broken tire, where could they ascertain the
slightest indioatioe of • bulge upon it—or whether the
laminations upon it were such se to inchoate the existence
of • Mtge flaw? So much then for the large flaw. Next as
to the transverse flaw. In the first place it was said the
company welded this iron themselves, or at any rate, said
the pleintiffs, the company from the moment of the mai-
den& were baled to exculpate themselves from every poseible
imputation, and therefore if any portico of the ati
proved defective, they were bound to show the origin
career of each portion. Well, if that were so,lse was bound to
say they bad been wasting six days, for it was early admitted
that the company kept nu books by
_which the history of
Aso wheels could be traced. Nor bed they kept any bookie
of the Mad until within • recent period, when they did so in
• with the requirements of the Board of Trade.
But e could not adopt that view of the plaintiffs ; at the
same tiute that be admitted it was a circumstance for the
jury to take into consideration. It 'might well be that a
conipsay using articles the history of which was unknown
to them, was bound to be more careful and diligent to show
that the article. in question were in proper working
condition. However, it was said that, be that as it might be,
the company had welded the tire, and that for their negli-
gence in that they were responsible. Thatinvolvedtwo ques-
tions ; first, wa, the tire welded by the company ? secondly,
WIN there negligence in Oswald*? As to whether the acci-
dents of the kiwi could be prevented by the most care-
ful applicatiou of skill and attention they had no
infortuatiou. His impression was that both the
jury and the judge hail been unfairly treated, with
respect to the point which had hese as it were
sprang
upon then at the last moment. Well, did the irompanyl
this particular tire themselves? All that the evidence
amounted to was, that during the last thirteen or fourteen
years the conipany was In the habit of welding some of its
tires; but whether they did so with reference to this par-
ticular tite the jury were left completely in the dark. On
the other hand, there mu some evidence that they did not
weld these obi wheels. for the tires which the company
purchased sod welded were not i.f the same dimensions se
these. Upon the second point, excepting that Mr.
Sinclair said they were uninformed, Sir Charles Fox
certainly ineidenially threw out that by blocking
the defective welding might have been remedied ;

3. Was there negligence on the part of the company with
respect to the longitudinal flaw?
4. Wan there negligence in caging the tire after it bad be-
come too thin, and that irrespective of the flaws?
5. Was there negligence in not providing sufficient brake
power for the train ; and if no, would • eufficient brake
power have prevented or materially mitigated the aceident?
His lordship's charge having occupied two hours and a
quarter in its delivery,
At four o'clock the jury retired. At a quarter to five
they returned into court with n verdict for the company
upon all point., save as regarded the sufficiency of the broke
power. Respecting that they were of opinion there ought
to Lave been a brake van both in tract and rear of such •
train ; but at the same time they did not consider that the
application of even such power would have materially
mitigated the accident.

INSOLVENT DEBTORS 00IIRT.—Dore. 28.
(Before Mr. Coinmissiooer Nichols.)

This insolvent, who had been lessee and manager of the
Sheffield Theatre, and also a paekingosee-maker, Bath.street,
Nesrgate.sureet, was opposed by Mr. Dicker aarten, on the
part of the detaining creditor, Mr. Farwig, and a French
artificial florist, named Clogue, opposed in person. Mr.
Sargood supported.
k min the insolvent's examination it appeared that he had
taken the theatre at Sheffield for 12 months, at WO/. a year
rental, and had paid 400/. lie considered he had lost 500/.,
including the debts he owed and inserted in his schedule on
account of the speculation. The opposing creditor, Mr.
Farwig, was the holder of his acceptance for 2 if., which he
had given to Mr. Broome, of the Crowe and Cushion Public-
house in Russell-street, And to whom he owed about 70/. for
money advanced and goods supplied. Be bad become se-
curity to the brewers and distillers of Broome when be took
the public house. The bill in question was drawn by Cap.
taia Eloghill, and had not been paid, and had been gives to
' Mr. Farwig for a debt due by Broome.
The only other evidence called on the part of the ingot.
vent was the attorney's clerk, who proved that Mr. Farwig
took the bill for • debt due by Broome. The drawer, Cap-
tain Hughill, bad been sued, but was not to be found.
It appeared that the insolvent had sustained a loss of
2971. bY the bankruptcy of Mr. Charles Dillon, who had
been leases of the Lyceum Theatre.
The other complainant had supplied artificial flowers to
161. to Mr. Dillon. and could not get his mosey. When
Mr. Dillon was in the Court of Bankruptcy he went to
oppose, and the insolvent said he would pay Lim, and gave
him a bill which had not been paid.
Mr. Siugood cited the 202nd section of the Bankrupt
Consolidation Act to show that a bill given to buy off an
opposition was void.
!dr. Commissioner Nichols held that the complainant
could not oppose.
The party said be had been told so, but came to show
up the insolvent for the benefit of the public.
Mr. Bicker (7nartcn contended that the bill held by Mr.
Farwig was .111 a. ....mmodation affair.
Mr. tiargood urged that the evidence showed it was a
bona fide transaction.

Mr. Commissioner Nichols held that the insolvent was
entitled to his discharge, but directed Mr. Clark (Nichols
and Clark), hie attorney, to produce some evidence oti Fri.
day ia connexion with a bill of sale.
The heal was enlarged.