Middletown transcript., 1874-05-30
NEW CASTLE COUNTY COURT.
THE CASE OF LYMAN VS.. THE p, W. g. B. R
R. COMPANY.

AhE OAch VT Nos AHE W. q D. ~
R. COMPANY.
Court opened on Thursday morning at
the usual hour, Judges Gilpin, Houston
and Wooten on the bench.
Mr.. Bayard. one Of the Railroad coun-
sci. continued his argument in favor Of q
non-suit of the plaintiff. on the following
grounds:
1st. The plaintiff has failed to show the
injury was occasioned without fault on her
own part or Of those persons with whom
she was in the carriage at the time; and
that the injury was not occasioned by the
act Of the plaintiff or of those persons with
whom she was travelling.
I'd. That to entitle the plaintiff to re-
cover in this action the negligence Of the
defendant must NOT only be proven but it
must be shown to be an unmired case, in
which the plaintiff is pholly free from con-
tribution and the defendant wholly to
blame.
Sd. That by the plaintiffs own evil
denc, uncontradioted, the negligence of
the plaintiff is self-evident and palpable,
and this fact not being ia doubt the Court
must apply the law which forbids a re-
covery in such cases.
4th. That negligence on the part of
plaintiff cannot be qualified or relieved by
negligence on the part of the defendant
9Th. That the state of facts established
by the plaintiffs evidence exhibits an
absence of that prudence and precaution
in crossing railroad track at night, of
that care, diligence foresight in proportion
to the danger to be aeoided which the law
requires, which considerations of public
right and public safety require, which the
safety of the innocent passengers upon the
trains requires, which the legal right of
the defendants to use and occupy their
own track at all times, and hours without
interruption requires and therefore no re-
covery can be had in this action.
9th That by the state of facts establish
ed by the plaintiffs evidence the plaintiff
necessarily could by the exercise Of com
mon precauton-of stopping, loohing and
lisiening-have ascertained that the train
was approaching in time to avoid the col
lision, and not having done SO, is not free
from fault and cannot recover.
7th. That the degree of diligence and
precaution required by law of the plaintiff
in crossing the railroad track was not
qualified or lesseued by the fact that the
train was behind time.
8th That the mistake of the plaintiff
in believing or supposing the train had
passed-and her action upon that erron-
eous belief n driving upon the railroad
track having caused or contributed to the
injury, she cannot recover in this action.
9th That the mere fact of the train be-
ing behind time is not evidence of negli.
gence on the part of the defendant.
10th. The collision having taken place
on the railway track of the defendant the
onus Of proqf is on the plaintiff to rebut
the presumption of negligence on her own
part and proge negligence on the part Of
the defendant and having failed as to both
she cannot recover.
11th. That there is no proof of ncgli-
gence on the part of the defendant and
therefore the plaintiff cannot recover
Mr.. Bayard reviewed the testimony at
some length and cited numerous cases in
New York, Pennsylvania and Massachu-
sctts reports to show that the plaintiff had
not exercised the caution demanded by
law in not stopping to listen for the train.
The very fact Of not stopping he claimed
debarred the plaintiff from recovering and
entitled the Railroad Company to non-
suit.
At LIS p NJ, Mr.. Bayard closed his
argument and Court adjourned until 3 p.
M.
AFTERNOON SESSION.
The court met at the appointed hour
and Mr.. Bird commenced his argument
for the plaintiffs. After reviewing the
testimony be proceeded to examine the
cases cited by the counsel who proceeded
him and denied that any of them held
opinions predicatad upon State of facts
similar to the one under consideration
He claimed there was no case that went
the length of compelling a man to stop
and look for train at a crossing where a
clear view for two miles could be seen
from the road He then cited extensively
from many law cases to prove that slight
degree of negligence on the part of one
person will not excuse the liability Of an
other party grossly negligent.
He denied any contribution on the part
of the plaintiff towards the injury and
claimed that it was due to the company's
own neglect in not having headlight and
signalling. Mr.. Bird continued until 81
when he was interrupted by the adjourn.
ment of Court until Friday morning.
FRIDAY.
After the general calling of the jury
Mr.. Bird proceeded with his argument
citing numerous cases which be contended
not only established the principle; ht
claimed that only ordinary precautiou wa'
necessary, but that the company wa
bound to neglect no signal and that h'
was not compelled to presume danger.
After speaking at some length he clos
ed by exhorting the Court not. in thu
first case in which this question has come
for adjudication in this State. to say the
plaintiff in his suit shall be thrown out o
Court because they did not stop and lister
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