Wilmington daily gazette., 1874-05-23

ner il deserved
The opinion of the Court was delivered by
Judge Gilpin, substantially, az follows; 1t is {
with great reluctance that tho Court inter- !
feres to prevent n case from going TO a jury (
on its merits. We prefer to have the jury i
try the case ami to charge the jury TO their {
proper duty. 1: IL our duty, howev er, W hen q
called upon to say whether case when pre-
scented by piantiH,in the absence OF proof
by.a defe1dent, is pripid fdcie such as to
entitle to a verdict. Where a case made
out by plaintiff is such that In law he could
not recover, 1t Is the duty of tho Court
where n non-suit Is asked. to award one
and hold tho case from the jury. We do
not propose to go into very elaborate re-
view OF the testimony, and shall therefore
he very brief in stating the principles. This
| is not tho case OF a plaintiff who Is q passen-
ger who sustained III injury. In the case
OF injury to q passenger, tine defendant must
show us0 Of tho utmost diligence and eau
ton to prevent an accident. An extra
b ui den is thrown on the defendant in that
case and think 1t IL a proper responsibility |
The rule with regard to travellers 10 very |
different. Tney stand on equal terms and |
arc both bound to use ordinary caution. |
The Railroad, to no greater extent than the |
traveller. Both are put. upon a diligent |
use OF their faculties. In this case according |
to tho statement of two OF the parties, Mrs
Lyman with them, lett Wilmington about |
6 p. NJ, to go to j. K. Lynam's. They did
, not travel rapidly; 1t was dark; the horse
was SfDODtu snoui Tue TOdu5 llOZ6n anu tb6y
went on in slow trot, and at : O'Clock ar
/ rived at the junction OF the Newport pike
with the lane. When they had passed dow n
two-thrds of the lane, two curtains down
0 and one up on each side, and the front seat
e pusked back, and they sitting In the line OF
: the lowered curtains one or more OF them
J, leaned forward and looked up and down the
i railroad track, and remarked about u light
n in cousin Dars house. This was two-thirds
y down towards the Railroad aud some hum
IN n IL, ,1ffA III
- at a trot. There il no evidenc3 that they
/ look ell out after and We are bound to pre-
IT sumo they did not. They kept on until
e they got ON the track and were struck Such
are the facts. 1t " manifest they relied
principally upon seeing the headlight. 1t
20 was usual for them TO SEQ ono, and itI alb
10 sence led them TO tho conclusion that no
y train was near.
o. 1t would be dangerous ruls to announce that
persons should regulate their conduct according to
AZ the time tables of the road. 1t would be equally
dangerous to say that people should place any re
lance upon the absence or presence OF headlight.
Ii there had been headlight that night, ii is true
IL the accident might have been avoided but there
ss are other circumstances which might SHOW the
II. danger without depending upon seeng the head
". light.
lgI In our Judgment as there is no statute in thi:
state requiring Railroad companies to carry
headlight in front of the engine; it is not per S,
ES negligence to omit so to do although it might Dt
OF imprudent Assuming however that the Railroad
ty was guilty OF negligeuces Still the question IT
tie mains is this plaintiff entitled to recover They
h, looked out when some hundreds of ieet from the
lg ltniroadanddd not look outalerwards 1t wascolC
IA and dark, with hIrozengrouudth the noiseofthehorsc
m, hoofs deadcned their hearing and they were als
n mul ID up Did the defendant use caution?I4et IN
citethe general rule OF lawsas drawn from hume
,el ous body of cases.
nd One who is insured by another cannot recovc
or in law or equity lihy any acts of himself or agen
d. ho contributed to the injury by doing that whic
"A. helped to produce the injurious act. Did tn
plaintiff in this case by any act OF omission OF CON
m mission contribute to the complained injury5
-, she did, IN opinion she is not entitled 10
re- er. To recover her action must be without tau
- If she contributed in any degree sho cannot II
cover. Did she consider the circumstances
- RemenlleT this is considerable distanc
~" oil the railroad. Suppose she had got owe
% that distance to the TRACK where there wa
iil' ample room to stand. and had looked ou
lor would they not have display ed more eau
1t ton than by looking out al the other pom
the alone. II they had paused at the mouth {
yer the lane but far an instant there woul
liz have been 10 collision. What were the di,
the tstes OF prudence and common sense, on
van dark night, approaching railroad trac
the ."oy - sa;aan, -, 10y zoe iau P"use Pn,
i'o could not have avoided seeing the cars pGs
They would have shot past thagI la Nv
yer seconds time. Can tais Caaft say that a
OLE though they failed Ia use this precautiol
my YET tO6y uStu NIL pr6tdullun. III Is
sea- vain lo tell uS tnat tue east wind ca rfie
the away tho noise Of the train thundarir
ross along at the rate OF % miles an hour.
"A was the rattling of their parrlaae that pr
T.. vented them from nearing IT, tan we So
.e now, that IN view OF these facts. VI which stat
a a,eT undsputad, that this plaiatiu has leg
'na- right to FeoovoTy We think not, and grs
the motion for n non-suit.
ing, Mr.. Bird declined to receive ii non -su
ute and tho Judge instructed the Jury to retul
u verdict for the defendant. The plsi at
will take the case up to the Coast of Erro
and Appeals, on writ CT error.
ior The Court then took up the case of Ma
McCann vs.. fho Eastern Shore Steam bo
ant Company. John O'Byrne, ESD, and q.
Silver, ESQ, for plaintiff, and Geo. .. Go
on don, Esq, for defendant.
vas After the jury was drawn Mr.. q syrse orler
the case by stating the iaets intend to be prov,
ieal In August 1877 the Shields Library chart,
'''h ed the steamer Sac from the Eeaston Shore Coz
hIv pany 10 20 TO Cape May. On August 10Th I
1000 excursion started with 400 or 500 people a
afely reached its destination. In the aflerno
and they started back the return; just as ths7 ";
lay, entering the mouth of the creek come Of I
'rth Company's servants removed the door from
der the guard 10 order TO make ready to put
the yaag piauk through when they reached the wha
rssS Iaonia Who SOW, Iben, do this rsn,oosr.tej
7ors @ ia - ~ A. =; -. L;o.
During the early part Of the ro.ning, Jo
McCann passenger On thai boat while walk
past that open space slipped, fell through a
was drowned. The widow Mary hcCann briI
the her action 10 recover damages, claiming the gr
tnis sest negligence to have occurred on the part
,s'a w the defendant.
haon James McManus sworn-was ca boat ii
and day, saw McCann there, saw the boat m
nm a take away, the door fSom under the guard +