Wilmington daily gazette., 1874-05-22
New Castle County Court
THE CASE OF LYMAN VS. THE P, W.
& B, R. r. co.

EIGHTH DAYS sESSION--MR BAYARDs > ARCU- "
MENT ON THE MOTION FOR NON SUIT u
MIR. BIRD COMMENCES HIS ARGUMENT IN q
OPPOSITION q
(RepOrted for the Gdzette.) A
NEW CASTLE, DEL, May 81, 1874. il
Court opened this morning at the usual hour,
Judges Gllpin, Houston aud Wooten on tha I
bench. :
Mr.. Bayarl one Of the Railroad counsel con- /
tinued his argument in favor OF non-sult OF the
plaintiff, on the following grounds: |,
lst The plaintiff has failed to show the injury
was occlsioned without fault on her own part or /;
of those persons with whom she was in the car {
risge at the time; and that the injury was not oc
casioned by the act Of the plaintiff or Of those
persons with whom she was travelling.
2I. That to entitle the plaintiff to recover in
this action the negligence Of the defendant
must not only be aihrmatiyely proven but it
must be shown to be an unmirsi case, in which
the plaintiff i, oholiy free from contribution and
the defendant pholiy 10 blame.
:, 81. That by the Plaintiffs own evidence, I'M
contradictod the negligence Of the plaintiff is
} selfeyident and palpable, and this fact net be-
ing in doubt the Court must apply the law which |
) iorbids recovery in such cases. |
j 4th. That negligence on the part OF the plan |
IN cannot be qualified or relieved By negligence
ON the part OF the defendant
u 9th. That the state of facts established 10y the
plaintiffs evidence exhibits an absence OF that
a prudence and precaution in crossing railroad
:, track at night, Of that care diligence and fore
sight in proportion 10 The ddnger to be drotded
NJ which the law requires which considerations of
Of public right and public SAFETY require which the
y safety ot the innocent passengers upon the trains
requires, which the legal right OF the defendants
TO use and occupy their own track at all times
IN aud hours without interruption requires and
Ir there fore no recovery can be had in this action
,,' ,o 9Th. That by tho state of facts established
~ ~ by the plaintiffs evidence the plaintiff neccS-
h' sarily could by the exercise of common pre-
~ cautlon-of a0pping iO0htHg and itsteRIng-
no have aScertaned that the tram was approach
hg ing in time TO avoid the collision and not hay
"a ing done so. is not free from fault and cannot
~ recover.
ke 7th. That the degree of deligence and pre-
'h' caution required by law of the plaintiff il
crossing the railroad track was not qualified ol
lessened by the fact that the train was behlnt
ny time.
IN levlng or supposing the train had passed-an'
pm her action upon that erroneous belief in driv
er- ing upon the railroad track having caused o
contributed to the injury, she cannot rtcoVe
oh' in this action.
ro-I 9th. That the mere fact of the train being
I've behind time is not evidence of negligence o
'hs the part OF the defendant.
'hs 10th. The collision having taken place o
eu' the railway track of tho defendant the oHus
ing proof Is on the plaintiff to rebut the preSump
uOn of negligence on her own part and prov
negligence on the part OF the defendant an
tral having failed a5 to both she cannot lrecovel
srly nth. That there is proof of negligenc
udl' on the part of the defendant and therefor
lee the plaintiff cannot recover.
me- MIR. Bayard reviewed the testimony at son
rch, length and cited numerous cases in Ne
ners York Pennsylvania and Massachusetts repor
nor to show that the plaintiff had not exercise
one the caution demanded by law in not stoPpi1
}. to listen for the train. The very fact OF Il
;, oi stopping he claimed debarred the plaint
si,i o'i1 from recovering and entitled the Railroi
Ill Company to a non-sut.
'eia, Att Is p NJ. Mr.. Bayard closed his arg
an anu ment and Court adjourned until r. M,
Fe. AFTERNOON SESSION.
and The conrt met at the appointed hour al
was Mr.. Bird commenced his argument for t
and plaintiffs. After reviewing the testimony
lame proceeded to examine the eases cited by /
dom counsel who proceeded him and denied til
isted any of them held opinions predicated upoI
gave State of facts similar to the one under cons
anu Grafton. lie claimed there was no case IL
'h- went the length of compelling man to ST
i'' and look for u train at a crossing wher
clear view for two miles could be seen II,
the road. He then cited extensively fir
MANY law cases to prove that q slight deg
of negligence on the part of one person v
cE - not excuse the liability of another party grt
ly negligent.
lie denied any contribution on the par
nicer the plaintiff towards the injury and CLAIM
arket that it was due to the company5 own neg
how in not having headlight and signalling.
obia. Bird continued until 81 when he was int
d tho rupted by the adjournment of Court until
pting morrow morning II. Z.