The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-02-06

Victim Claims 81 10000 Damages-Dcfend-
ants Attempt 10 shelter Themselves Under a
PENNSYLVANIA Law.
Before Judge Gilbert.
Camden c. Dixie ps. The Erie Rdilacdy C0nlpan1-
This was an action growing out OF the accident on
the Erie Railway, on the morning OF the 18th OF
April last, at Carr's Rock, locality only short
distance from Port Jervis, but in the State
OF Pennsylvania. The plaintiff in the action,
who passenger on the train at the time the &C
cident occurred, was wool merchant doing busi-
ness to the extent OF So year at Nos 46 and
As Barclay street. New York, under the firm name OF
Dixie & Brothers. He brought the suit to recover
the OF 81 1000 for injuries sustained at that
cident- He was put upon the stand and testified
that he was the time OF the accident thirty
years Of age, and prior to that event was never
absent from business single day on account of
sickness He entered the tram at Attica, Wyoming
county, N. ", on the afternoon OF the 14th OF
April, and at night took sleeping car,
which was the rear car OF the train. Lie had In his
charge young lady and little boy nine years of
age He went TO bed about ten o'clock and fell
asleep and was awakened by a sudden jerk Of the
car, when he ilyoluntariy grabbed hold OF the mat
be fully an hour that the car was reel
Ing along as II plunging down bank,
though in fact but . minute. When ut last it
reached the bottom, distance or about ninety
feet the was In total darkness. Not sound to
be heard, and he had no means OF knowing the dam
age done to himself or Others. His arm was still
around the mattress; he attempted to rise but could
not, as something bound his legs This gave him
no ALARM ana, In fact thinking he was uninjured he
was, as he testified the nappest person in the world
until he caught the smell OF fire. Recognizing at
once his danger, he tried to extrcate himself; tried
again and again, but without avail; the lady who
was accompanying finally came to his assistance,
drew him from his position, and finally by the help
OF his arms alone he dragged himself through con-
venient opening and escaped the burning car. He
lay upon the ground for couple Of hours and a
mattress for four hours more without shelter. The
same day he was put on board train and taken to
Jersey City, where tug chartered for the
purpose. lay in wait for him, and took him
to the foot or Montague street, Brooklyn,
thence to his home, 1873 Columbia street. Wien
he arrived home both Of his legs swollen to
size of his waist He was placed in bed on his
back, and for two months didn0t move SO much as
an inch from one side to the other, and during all
that time did not sleep to exceed 6teen minutes at
once. Lying thus he suffered the most excrucatng
pain, which never ceased for 10 moment His wife
put upon the stand and testified that his suffer
ing was SO intense that she could not endure being
IN the room with him. At night while occupying an
adjoining room his gr0anng5 were SO terrible that
her sleep was as broken as his. In fortnight his
hair, which was black at the time OF the accident,
had turned gray. At the end OF two months he
began to mend so that he could be moved without
absolute torture. In August le went to the cOun-
try, and two three weeks ago he went his store
for the first time His business was such as to re-
quIre him to be much upon his feet and to demand
frequent excursions to the country. He had ex-
pended $4,000 in DOCTORS lees. &c.
York Homeopathic Medical College, who attended
the plaintiff, testified that painliff's left leg was
Fractured three times below the knee and that the
upper fragment was crushed: the bones were lett
bare In some places; the shock 10 his nervous sys-
TEN was so great that he was for long time in an
extremely critical situation, that he had have
in o short time sloughed oil, leaving the
bone exposed for space OF six inches; the
bone set so that IL was restored to its natural
position: 1t would be long time before 1t would he
well and would never be as It was before; witness
charged him for his medical attendance 81, 500.
X. NJ VAIL the Coroner for Orange county, testl-
fed as 10 the appearance OF the fractured RAIL- which
ii was conceded by the defence was the occasion OF
the accident The rail was broken IA two places, he
SAID and one OF the fractures mad the appearance OF
being part an Old one; the road was IN bad con-
ditlon in that locality.
Erie Railway, was called for the plaintiff and an
attempt was made to get In as evidence a certain
report made O short Time before the accident oc.
CURED with reference to the condition OF the road.
but objection being made 1t was Withdrawn. He
said tnat the road was in fair condition at Carr's
Rock At the time OF the accident the ground under
part OF the rail- that gave way had thawed out but
under the opposite rail 1t was still frozen the Tac-
lures OF the rail- appeared like fresh ones; the dis
lance from the track to the potion OF the embark
ment was ninety feet, the angle Of the slope from
thirty-1ve to forty degrees.
With this testimony and the testimony OF one or
two witnesses going to show the extent and Sc
verify OF the injury sustained by the plaintn the
prosecution rested.
The first witness called for the defence was Jasper
b. Judd, the conductor OF the trainin question. tie
testified that he had been twenty%wo years on rail-
roads. and on the Erie seventeen he TOOK the train
at Elmira and run II 10 Port Jerv; II was running
at the time twenty TO twenty-five niles an hour and
the steam had been shut or half nile distant from
the accdent there was reverse oirve at the place
OF the accident; the grade was a little descending
coming this way.
The engineer and all the subordnates OF the gen.
era superintendent who had TO 60 with that par
tcuar part OF the road where the accident occurred
were called, but they gave addlt onal facts OF i-
portance In addition TO those areaiy given for the
road
been passed over by one OF the employees about an
hour before and was In good condition. and that
there was better iron on some portbns OF the track
With this testimony the defendants rested and
moved the Court should direct tie Jury That me
damages given, u any, should be United To- 70,
on the ground that the accident occurred IA the
state Of Pennsylvania, where there IL law, passed
the 4th OF April last year, limiting the amount or
damages for injury done to person entrustng him
self to common carrier to 5,00o and To $1,000 In
the event OF his death.
Judge Reynolds, for the defence, srgued that any
action for breach OF a contract " be performed
partly in one State and partly in mother must be
brought subject to the laws OF the state where the
breach occurred. II an assault ant battery should
take place In New JERSEY and an acton for damages
should be brought IN New York the law governing
the case would be the law Of New jersey.
The Court ruled that 1t was a masim OF law that
when man had q right TO sue upon particular
case no legislative acton affecting he remedy gov.
erned. The agreement was 10 cary the plalntn
safely to New York. The defendants we're corpora
ton under the laws Of New York. The fact that the
road passes through Pennsylvania sbut an incident
The license granted BY the State q pennsylvania
could not affect the question OF liability. IL being
New York corporation the laws Of lew YORK must
apply toit.
The case was then argued and IN, Court charged
the jury That the business Of the deendants was OF
the most dangerous characters and tie law demands
OF them vigilance proportlonate 70 the danger.
In the nrst place. they are 10 provide safe TRACK,
constructed upon the best mechanical principles
In the next place, roadworthy vehicles must De pro-
vded, having all the appliances fnown to tue
company at the time they are provided, 70 insure
safety In the third place. they muslemploy skilful
and competent agents. In the fourth place, they
are bound In all respects U exercise the
highest amount OF foresight and care The jury had
right the Court did not say II We their duty-to
inier rom the fact Of the accident that there was
some negligence. II there was no negligence the
company was not liable. The pishtif had legal
right TO compensation for injuries actually sustained,
lot what he had suffered, for any injury TO his con.
sttution, any Impairment Of his powrs or faculties
or the losses OF his business.
The Court was asked TO charge tina the amount OF
damages must be assessed subject to the law Of
pennsylvania, II any damages wer found. The
taken.
The case was then given to the jury who were a.
rected 10 bring In sealed verdict this morning
Mr.. jerks for plaintiff; Judge Reyn,ds for defend