Wilmington daily commercial., 1874-12-08

and observing and obeying orders, signs, and
signals from the commander of the tug and the
whole tow, and SO managing his vessel or barge
as to keep 1t IN the course or track OF the tug
and to and exercise due care, skill and dllli-
gence to avoid collision or doing injury TO the
property of others.
Under this rule the defendants are not cone
mon carriers and therefore not held accountable
for the extraordinary degree of care and dir
gence which the law of common carriers I'M
poses upon them but they are held to the same
rule of responsibility as ordinary baees for hlre
are. They are answerabe for loss or injury |
occasioned by the want of ordinary care, skill |
and diligence. Ordinary bailees may stipulate
for different degree Of responsibility from that |
to which they would be held liable IN tho absence
of an express agreement or contract. They may |
bind themselves by the law Of common carriers, |
that is, for the safe transportation and delivery
of goods al all epents, and ON the other hand they
may contract for any exemption from liabsllty
less than the law OF principal and agent subjects
them to-
Now gentlemen, having announced to you the
law applicable to this case, must say to you
that the defendants being the owners OF the
steam tug S.caHotc, commanded by Capt. SMITH
ers, and under our ruling the principal, and the
owners Of the several barges for the time being
and for the purposes of transportation on the
occasion in question the agents and snbordi-
mates of and under the control and direction OF
the tugs commander, they are liable to the
plaintiffs for any loss they sustained by reason
of the collision between one of the
barges she had in tow and the sloop
| Helen, provided the collision was occa-
| stoned by negligence and want OF ordinary
care, skill and diligence ON the part of fhe com
mander or captain of the steam tug SirdltOir then
| having the bafges In tow, or on the part OF any
| persons whose duty 1t was TO steer the barges
| unless there waH contrbutve negligence on the
| part OF the sloop's commander, and this brings
me to that branch Of the defense set up and re-
| lied upon upon by the defendants. They con
| tend that there wac contributive negligence aud
| want Of ordinary care, skill and diligence on the
part of the captain OF the sloop, and that there
| fore they are not responsible for the conse-
| quences of the collision though there may have
| been negligence and want OF Ordinary care,
| skill and diligence on their part Such, gentle
men ie the law, and II you should be sat
| lshed that there was culpable negligence
| and want of ordinary care, skill and diligence
| on the part of the commander of the sloop, the
| defendants not liable for the loss and injury
sustained by the plaintiffs by reason of the col
lison, whether the coiliding would or would not
have happened had there been no such contrib
| utive negligence or want of care and diligence
on the part of the sloops commander. Both
parties are held to an equal degree OF care and
diligence, aud to entitle one to recover damag-
es for an injury and loss he must be blameleHs.
and the other the defaulting and culpable party
The law does not measure the amount or extent
OF the contributiye negligence for II would often
be difficult and perhaps impossible to ascertain
whether the disaster would or wouldnot have hap
pened had there been no contrlDutiye negi-
gence. II therefore thele be any, ,exonerates the
other party from liability.
/ have now said to you all TINT is necessary
that should say. have given you the opinion
of the court upon the law the facts are for you
to deal with. 1t ia not our province, and there
fore have expressed no opinion III reference 70
J them further than was necessary for the pur-
| pose of making myself understood in the an
nouncement or the law.
have now performed my duty to the best oi
I my ability. and if have erred there is remad,
t for the aggrieved party. our Judgment can b'
reviewed by higher tribunal, and should b'
very happy to be corrected if l am not right.
! II now becomes your duty TO perform th'
e responsible part in the case which has devolye'
upon you ; and You Will now take the case ant
give it full and careful consideration, and upol
the law AZ you have 1t from the court and tin
eyidencelgiyen you by the witnesses make mp you
l verdict ar in your best Judgment you shall be-
q lieye TO be just and right, and as the law am
e evidence not only justfiea bnt requires and !
there should be error in yonr finding let 1t be u
& the Judgment and not OF the heart.
At the conclusion of the charge the bailitf wa
r sworn and the jury retired.
i The next case taken up was John Mines VI
d O. Il j. Pyle, Garmisheer OF Richard Johnson
d attachment ia plea AHiid Bond Bird fo
l. the plaintiff Lore for defendants. The histor
y of this case il as follows In 1872 Mines recov
sr cred judgment against johnson in the ST
B. perior Court On the last day OF March, lsit
ID Mines, finding Johnson in the employ OF G.
j. Pyle, attached his wages in thor hand
3 Messrs. Pyle responded to all they the
L. owed Johnson. The next day c. ~
e, Pyle made an agreement with Johnso
L. to henceforth prepay him his wage
lie johnson refusing to remain any oth'
- terms. Shortly after this agreement Mines Ina
NJ another attachment isaued and G. ]. Pyle II
Of sponded that they had mo goods" of Richas
nd Johnsons. The plaintiff sought to mpeach Il
O. transaction with fraud and sought to make q.
J. Pyle repay all the money they had paid JOIN
or son under the agreement. The defence co
r tended that fraud must be proved by the plail
IL tiff and not presumed, and that @. ~ j. Pyle
en- agreement was valid one. The Court 80 he
he and jury found for the defendant.
IL The next case tried was that OF James Brow
It's os :Pnsey q Rice Action on the case +.
ur Bradford Jr, for plaintiff Benz. Nieds for d
he fendent This is an action brought to reeoy
'es for the use of an engine belonging to the pal
TO tiff by the defendants last winter and also dal
ages for alleged injuries. On trial.
ess Judge Wootten, just before adjournment a
nal nounced that ON tomorrow (Tuesday) evenin
10y after O'Clock the liquor licences, would be
by ken up.
els Court adjourned until tomorrow.
al, -----