New Orleans daily crescent. [volume] ([New Orleans, La.]) 1851-1866, 1866-10-22
ynter.estan9 Railroad Accident Case IN New
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This was an action brought in behalf Of Moses
Drayton. minor, by his father, against the East
Broadway, Dry Dock and Battery Railroad Com
pany. for damages alleged to have been sustained
by the plaintiff through the negligence of the de-
PENDANTS. .
The facts OF tie case, as stated by counsel and
fully sustained by the witnesses for the plaintiff
are as follows
Onthe afternoon Of February Is, 1865, the PLAIN
tiff lad of II years. entered one ofthe cars q the
defendants on Park-row, to ride to his residence
near SCANNED street: On the passage up town the
lad vacated his seat u favor OF an aged gentleman
| who entered the car, and stoodup the remainder
/ of the trip, the car being most of the way, as
i usual crowded with passengers. When within
4 about block of his residence, as the conductor
i was passing through the car to coleetthe fares,
younq Drayton asked the conductor to lot HIM out
at Scanned street. To this request the conductor
strepIied Won are smart enough to get oub your
,Eseif without stepping the car Acting upon ,als
hint, which the boy construed INTO q Eelnsal l9
Estop the car and having waited Till tine car mad
passed his residence nearly block without any
A motion being made by the conduetort 10 stop, me
q lad went to the front platform and Jumped on.
The car was in rapid motion at the time, ana ~
VI inmpinn to the paYement the lad broke his leg IN
two places The conductor then stopped the car,
and as he went to pick the boy up the latter SAID
& Now you see what you have done by not stop
4 ping when wanted you to-
/
u he left with one leg shorter than the other, and
q the physician testified thatuceration was liable te
take place at any time around the injured parts o.
4 the limb. The damages are laid at SIC, 900.
II The testimony for the plaintiff being all IN coun
sAllfor the defendants, eX-Recorder JAS. L. Smith
moved to dismiss the complaint on the ground ina
tile boy was himself in FAULT in attempting toJumf
from the car while it was in motion, and wa
Fl therefore not entitled to recover. In support
this motion he made lengthy argument, citin9
\ numerous eases, old and new, claiming thatlf wa
well-settled law of this State that where paEt,
]. Eciajning damages for injuries sustained hy ~
J, negligence Of another was himself guilty OF negll
gence in the slightest degree he was not enttle
2 to recover. He even went 50 far as to say that
!. the defendants were to employ as conductor
man totally unfit for the position reckless man
d man who had no regard ion human lie whatever
ana this conductor weregtobe guilty of the gross
est negligence Insulting in the death or INJURY OF
!. passenger said passenger would have no right
IA action against the railroad company, pfoVtdeai
9 could be shown that the passenger mad c0ntrlpp
!. ted by his own negligence, however small N m
slightest degree toward the accident. lie furtne
claimed that it was the duty OF the Judge 9efoF
L whom such an action might be brought, and wa
y made imperative upon him, to dismiss the CON
plant and not permit the case to go to the jury
In other words, the jury should not be allowet
upon the state of the facts here presented 10 "a
whether the plaintid'w guilty OF any negilgenc
or NOT, but that question should be determined p
t the court in favor Of the defendants and nonsu
7 Judge Jones said lie had already ruled in sim
d lar case that had come before him in accordanc
!, with the doctrine laid down by the defendant
e counsel and, althaughtbat case Was now pendin
I, on appeal before the general term OF me eour
2 Until it was decided against him he should fet
& bound to adhere to his own ruling.
!. The case before the general term has been a
I Igued and d messenger was dispatched TO ieaf
4 whether decision had yet been rendered. I'D
4 messenger brought back the information that 4
q decision had yet been made, and the judge aceor
Z ingly refused to allow the case TO go TO the Jur
Il and dismissed the complaint.