The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-05-25
THE LAW 0oUxTS.

causing Death Hetty DOwnie child OF tender
year, talready noticed his honor the Judge in charging
the jury said that to entitle the plaintiff to recover in
TINS action ~ ntt appear mat tho death OF the chld
was oceasoned by the cpable negligence OF the defend
ants and this fact must be clearly and distinctly made
OUT IL II was the result Of inevitable accidontf It
TOOK place solely through cupabc negligence on the part
OF the child or tit produced by mutual negligence
that IS neg rncc on the part OF the child ~ we'll as on
the part OF the SCENTS OF the companythen in either OF
those ccs the verdict must be for the defendant and
IN respect to psrys responsibility for negligencehat
II to say the duty he Ia uader exercise and
t,onhe law Makes no distinction between the case OF
enid and That Of grown person, il being the duty II
thoe entrusted with the Ci children to that they
are not len to their guidance in situations where
the exercise Of those qualities essential to the preser
Walton OF life or limb In the Of mutual concur
ring negligence the law does not the relative do
gree for the purpose of determining which tho
parties i most in fault But il party Is negligent him.
self he has right of action against the other party
ns the acts of that other party amount to what in law
that indicates wifu design to do mischief or cul
pablc Indifference to results consequences which may
be regarded as equivalent to tho same thing very
strong appeal has been made to your feelings in this case
gentlemen Indeed IL is not to be expected that you
could listen to the details Of this unhappy accdeno
the manner Of the death of this young and interesting
chld-wthout strong sympathy for her bereaved pa
rent but that sympathy would be greatly out of place
YOU allowed 1t to get the better Of your your
Judgment, in determining the questions about DO SUBJ
United TO YOU You sit here to do Justice to inquire
calmly into the facts of this and when you have
certaaed them to dispose of the rights Of these parties in
accordance with the rules laid down to yourues which
are the fruit of patient investigation and long experience
do substantial justice to all parties The cal difficulty in
this case gentlemen arises from the conflict between the
witnesses as to the manner IN which the accident occurred
This has been made the matter for much comment by
COUNSEL but does not follow because witnesses differ
TINT there has been side the other intention
al pcrversion OF the truth II il matter Of familiar
perience in courts of justice that witnesses who the
same transaction differ materially and yet differ honest
ly In the account of what occurred And In case like
the present the runnngver Of child in the street by
pubc vehicle the thing takes place rapidly that the
impressions Of those who witness the incident must be
more or less imperfect and contrarety of statement is
not to be regarded remarkable Indeed if number Of
witnesses under such circumstances, agree in
CURED IL would be much remarkable and far
suspicious When incident occurs with great rapdi
N the accuracy Of witness account of it depends upon
the position he occupied the opportunity he had for
full and perfect observation; in some degree upon
his temperament whether he is cool and collected in
moments Of excitement, or the revcrscand upon the
these respects, that difference will be manifest in
any account Of transaction, when detailed by number
Of witnesses and such is the fact in the present
None Of the witnesses have been mpeached and there
was not hing in the manner Of giving the testimony TO
state what was untrue The entire crcdiblity Of all Of
them may fairly be presumed. The real inquiry is to
their respective accuracy The essential matters In
which the principal witnesses Of the plaintiff and defend
ant differ, to the rate of speed at which the
car was travelling, the alleged inattcntion of the
accident occurred If the three principal witnesses
tho part of the plaintiff correct, the
car vas driven at ratio OF speed and with an nasssnon
denied by the driver-by the person who standing
next to hmby the conductors of the large and of the
small and by several Of the passengers who in this
matter it is fair to presume disinterested the
witnesses for the plaintiff Knapp of the plaintiffs
passenger accustomed to go daily upon the route says
that 1t going slower than usual Here is material
conflict between the two witnesses But Knapps general
accuracy certainly shaken by the fact that he describes
the car having single break to which he attributes
the drivers inability to stop it. while is shown by the
superintendent and several other witnesses that it had
q
Again Oakley and Haley say that the not only
going fast but that the drivers head turned to-
wards broadway, and away from the horses That
when he Oakley called to prevent the chiid's being
run over. the driver TUNED his head, and looked
another witness and the account they give of the
in which the accident occurred and in which they
correct would show that the driver not natentve
to his duty and that the accident owing to the in
cautious conduct Of the child in crossing ut the time
was the result OF an accident against which human
foresight the part of the driver. could provide The
plaintiffs witnesses say that, the coming up
Centre street the child attempted the crossing
Walker street and had got way between the side
walk and the track when perccivng the coming up
he attempted to run dagonaly the witness
described it, in slantng direction towards the north
east corner Of Walker street the opposite side but
overaken 10y the before she could clear the track
thrown down. and crushed beneath the wheels. Now,
the account given by the defendants witnesses is
very different. They say that the small
passed the child suddenly emerged from behind II,
being in the act of crossing with her head down and
partly q when, before it possible, she ran
against the leading horse her feet caught in the lead bar
or truce che was whred round and brought under the
wheels, which passed over her The driver says that he
looking in the direction of his horses and that
moment he her he caught his rein and whp in one
hand and instantly tried to put down the break with
the assistance of Forester with the other that he
TO use his own language kind of bewildered" by the
snddenness of the thing Crane the passenger says he
saw 4 half dozen children by the walk that he
first caught glimpse of the child. and when he
her shc had struck the horses that the passing of
the small the appearance of the child and
lision appeared to take place simultaneously almost at
the same instant Now if this account be correct the
driver was certainly not ut fault and the accident
either inevitable attributable to h ncautious act
Of the child in attempting to run across. 1t is FOR
you to say, gentlemen which Of the two classes
OF witnesses you will rely upon. The principal
witnesses for the defendants were upon the ears
those of the plaintiff were in the street You will
judge from their respective positions which Of the two
were most likely to have precisely what occurred 1t
requires peculiar faculty much experience and habit
lance between two given points but when attem
made to judge Of the distance between two objects both
OF which were in this instance in notion and when wit
ncsscs under such circumstances attempt to speak
this of the number Of feet and that after great
lapse Of time little or value to be attached to such
an estimate 1t has been argued here, gentlemen that
If the account gvon by the defendants be
the true and that 1t not in the power of the
driver 10 avoid the collision still that the defendants
responsible for the result from having large
through the streets Of crowded city, instead of small
onc-the one being more manageable than the other.
that Is capable OF being stopped readily All that
can say upon uat point is gentlemen. that permission
has been given to the company to the through
the CITY without any limitations as to the size OF the
The act is therefore lawful and il in the exercise it,
inevitable accidents the Company not response
be Tho liability to accident is incident to every mode
OF travelling In this general the driving of any
vehicle through city is dangerous to those who
passing or crossing the public thoroughiare and per-
haps this mode of travelling il more dangerous than any
other as the vehicle is cumbrous cannot be
the track on which moves be instantly checked
stopped. like ordinary vehicles but this is con
sideration to be addressed to the municipal au.
thoritics that give this permission. In the case that
has been read to you horse startled by steam
whistle, burst blood vessel and it held that the
proprietor of the railroad not liable for the loss Of
the animal The death of the creature doubtless
thus occasoned by what incident to this peculiar
mode OF travelling; but the runningof the cars in this
way was authorized by law, and the company not
sponsbo though the effect Of in particular instances
was productive ofDjury to others The remaining ques
ton In this case Is OF damages The action Is brought
under peculiar statute giving action to the next Of
kin when death is caused by the negligence of another
The damages in any event is limited to 50 OO0 and tho
statute has declared what the measure Of damages shalt
be The next of kin may record in such compen-
saton for the pecuDiary ury resulting from the death
Az in cr h,,ala IF futh ar ,uxn