Delaware Republican. (Wilmington, Del.) 1843-1874, 1874-05-28

lHE LYMAN CAsE.-Tbe opinion OF the
Court was delivered by Judge Gipin substan-
TALLY as follows:
1t is with great reluctance always that the
Court lnterferes to prevent case from going
to the jury on its merits. We prefer to have
the jury try the case and TO charge the jury a.
70 their proper duty. II is our duty, however
when called upon, to say whether case when
presented by plaintiff, in the absence of proof
by defendant is primd fdcie such as TO enttle
to verdict; where case made out by plain
| til is such In law he could not ecoyer, 1t is
the duty ofthe Court, where a non-suit Is ask
ed to award one and hold the case from the ju-
ry.
we DO not p oppose to 60 into a very elaborate
review OF the testimony, and | shall therefore
be brief in stating the principles. This 10 not
the case OF a plaintiff who is passenger who
sustained an injury. In the case of injury to
passenger, the defendant must show use Of the
utmost diligence and caution to prevent acct
dent. An extra burden is thrown on the de-
fendant in that case and think it is proper
| responsibility. The rule with regard 10 travel.
| ers is very different.
They stand on equal terms and are both
| bound to use ordinary cauton-the railroad to
no greater extent than the traveller. Both are
put upon diligent use of their faculties. In
this case, according to the statement of two of
the parties, Mrs. Lyman with them left VII
l y II.
| They did not travel rapidly. TWAS dark, the
horse smooth shod, the roads frozen, aud they
went on a slow trot and at O'Clock, arrived
at the junction of the Newport pike with the
| lane. When they had assed down two tlurds
OF the lane, two curtains down and one up OH
each side, aud the front seat pushed back, aud
| they sitting in line of the lowered curtains, one
or more Of them leaned forward and looked up
and down the railroad and remar 6ed about the
light in cousin Dal's house. This was two.
thirds down the railroadrand some hundreds OF
feet distant. They kept right on at q troi
there Is no evidence that they looked out after
and we are bound TO presume they did not
they Kept On until they go: on the
track aud were struck. such are the facts -
1t Is manifest they relied principally upon see
ing the headlight il was usual for them 10 re,
one, and its absence led them to the conclu
sion that no train was near, IL Is also nearly a.
manifest that the light they thought they saw
NCousn DAfs was the lantern IN front of the
| locomotive We know trains are liable TO acci
dents, but they must make their trips train:
run other than passenger trains and that by DAY
or night, as best suits their convent, nce. Il
would be dangerous rule to annonce that per.
SOUS should regulate their conduct according
10 the time tables Of the road.
1t would be as dangerous to say that people
should place any reliance upon the absence Of
presence Of headlight If there had been /
ttIsSi nv ,iivIu dc vtIeI v1Irtul-
stances winch show the dangerousness o
reylhg upon the headlight. Iu our Judgment
as there Is no statue in this State teouirins rail
road companies to carry a headlight in front n
'he engine, II is not per Se negligence to omi
50 70 90, although it might be mprudent. As
snhIne, however, that the railroad was guilt,
OF Negligence, still the question remains. /,
TINS plhlntih entitled TO recover? They looked
OUT "hen some son hundreds of feet from the rail
road, ana did not look ont afterwards. 1t wa
~ anu uaik, WIN frozen ground, the nols,
OF horse hoofs deadened their hearing and Tho,
were also muitisd up. Did the defendant usi
caution Let HE cite the general rul4
OF law, as drawn from a numerous body a
cases. N'
one VINO Is injured by another cannot re
cover Ia law or equity, ifDy acts of himself o
A., ne eontriouiedto the injurv by donl
Ina. whicn helped 10 produce the injurious act
~; o ene pia'htln III this case by any act Of omis
SION or commission, contribute to the complain
eu HJury If she did; in our opinion she /:
hot entitled to recover. To recover her acton
uust De without fault If she contributed il
. any uesrfe she cannot recover. Did she con
, sluei the circumstances? Remember she il
! cOhsluefaole distance OH the railroad. Suppos
I sue MAJ got over that distance to the trac
49, lhere was ample room TO stand, and ha,
ooheu out, would they not have displaye
more caution than by looking out at the othe
point alone II they had paused It the moutl
o. the lane but for one instant, then there woul,
+ uase oeen no collision. What were the dictate
Plu"enee ana common senseon dark nigh
approaching railroad they intended 10 cross
II tiey hai paused would the accident h av
occurred ire They could not have ayoided see
ing lhe cars pass had they stoned as Tie,
would have shot past them in two seconds Inn
IAN thls Court say that although they failed /,
use !hs pfecaution, yet they used all due pre-
.aution' IL Is IN vain to tell us that the cas-
"lhu carried away the noise OF the train thun
SeiihS along at the rate Of twenty miles a.
I nour' IL was the rattling Of the carriage tina
WeSenIed them from hearing It, Can we saw
now, mat IN view Of these facts, which stan,
3 uhuisputed' that this plaintiff has legal rigi
; 70 recover? We think not, and grant The mo
y ton for nor-sult '''' '''' 'No
t M BIRD declined 10 receive non suit. an
the Judge Instructed the Jury to return a w.,
Lict ior the defendant. The plaintiff will tax
lhe case up to the Court of Errors and Apneai
: on witt 10 error. '"' - Pr 81