The daily gazette., 1879-12-17

.u"' M" saNs 80 poSUVely. hoheft Stew |
art, the deiendants first witness, saws |
the defendant did not have to wait for a |
passing train, as Mccoy Describes, and |
That Mccoy and the plaintiff came down
the street with great rapidify.
On the Other hand the plaintiffs wit.
ness says that they drove in a slow trot.
stewart also says the horse did not
iilRhten at the car. In this testimony
the Chief Justice thought there was a
complete Discrepancy, which the jury
wonld have to reconcile an well as they
could He would remark that Mccoy
had a suit simi lar to the one being tried,
pending in CourtfOr damages sustained
on that occasion, aud also that al The
time of tbe accident he was returning
from convival party, at which he at
least took some part. Enoch Moore
states that he saw the track of the car
rage next morning, AMI "A difference
arises here bctwetn the testimony of that
witness and Stewart, the watchman. 1t
may be well 10 state, IN connection with
This, Stewart is an employee of the railroad
compahy, and If his L~otinOny had been
Inherent from what it was he might
have lost mis- place.
fhe defendant says that the plaintiff
ana h's companion were Negligent and
should be treated as persons in their
| sober sciises, auu who yet were negli.
give the aw upon contri butory negli-
gence, and descii bed ordinary care as
care commensurate with the.dangert to be
| encountered. The Court also on this
point SAID IL did not agree with the
plaintiff, that tile leaving Of the car on
the track was suffI cient to secure veis
dict Tor him, even If it could be shown
by the plaintiff ii that there was coniri bu-
tory negligence.
| Vha r.rnsM that haf roll.
as made by the defendant was next
taken up. McCoy stated that his h orse
was seven years old, perfectly gentle ,and
| not afraid of the cars, and yet Stewart
testifies that when the wagon came IN
sight the animal was at full run. If the
jury believes this, IL follows that the dri
yer nust have been urging the horse to
arun,a ,and eiIher reckless OF cons, quences
or exercised by liquor. III such is be-
iieved TO be the ;tse the plaintiff should
be held responsible. The defendant has
also shown that the pialntlif was in
Mealey's drinking saloon enjoying the
rattle, and staid vptil II 30 O'Clock. Nc
Coy says that he II, aid no more Than an
7 hour and halt, tut admits that he tool
part III the festivities. The evidence
shows that there were Thirty bottles of
champagne drank On that evening, and
10 made about "A quart TO the man. Now
y.
create "A very lively feeling ami would iu-
toXlcaie. Such an effect had the wine
upon the defendahts witnesses, and one
OF them drank no whskey. With re
gard IT, how IL uch wine the witnesses
drank there is. mo POSITIVE proof, but
Detective Lrgg testified that he saw
them drink four glasses, and the barr
keeper served theIn with wbiskey. Com
sidenng all this, If the plaintiff drove
| - al IA. 10 ha .hnulI ta nal lI ma nslh hl.
IL Mccoy drove, it is to be remembered
tlat Tow Dsend was good horseman,
d should have taken the lines, and Is
h. refOreeq qually as response Bile az though
he had been driving. And this responsi.
biEity does not diminish because the neu
were drunk, and NJ, alley testities thai
they were "well fixed" Drunken men
OF deny that they are under the
Mnuence Of liquor at all. And it mus
be remembered that great di iilieu'ty in tc
pe met with III aacertaining whether ;
man ~ drunk or sober.
1t the jury decide that the men wer,
untit 10 drive that the accident was tht
result OF reckless driving that no eau
, ! ton nor care was exercised, and that TIL,
, | accident would NOT have occurred ha,
care been taken, then II verdict shoult
be found in favor pf the defendant, eV'i
if the car was left Standing in the street
a and does not excuse man for reckless
2 driving on such u dangerous highway
p The idea advanced by the dtfendan
that The plainuti might have gone eithe
over Market street bridge or down Thir,
street will not avail, for he had perfec
right to choose any route, but the de
I t, nse can hold that the plaintiff did no
D exercise caution, and this Is a perfect,
b good point. In the matter of caution th'
S lury should remember that the defendan
n had central roadway across the stree
a for The accommodation of highwa.
. travel in addition to the one on the uortl
side of the street, and also specla
3 watchnan and lights, which even III
e plaintiffs chief witness admits wer
c therc. The walchlpan swears that he dl'
G his duty and there is evidence that ther
l. were quite IA number of lights In tn
# negb boThood. 7 he statement made b.
;, Mccoy, when he was recalled about til
two plank way $ should not be consider
= cd.
n With regard to the verdict, the CCuI
i exnlained that in MI cases where plaif
d tiff seeks to recover damages he mus
i show what the amount claimed il in do
J. lars and cents, and the jury Is not .
n count up the amohnt. In this case I'd
Il plainutf has given no amount, and doe
y not give any proof to the amount he SUI
= can allow him the nominal amount of 81
e cents damages, aui also money for III
II pain and anguish which he suffered !
II consequence of the accident. III IN
# proof does not warrant this the verdit
! may be found in the defendants favor.
- The case went I'd the jury at ! 80 o 'cloc
Is and at g. 20 returned verdict awardin
< the plalptiff damage to the amount {
l. so. with six cents nominal damages an
II the costs of the suit imposed upon III
In ARRIVING at verdict five ballOt
were taken with this result First g {
~ q: second, 8 to 4 third, 10 to 2 fourti
20 AT the conclusion of the charge Oh
D. Chief Tust,ce statea that the Court woul
or finally adjourn to next term on Frida
ID next.
le Court took a recess till 8 o'clock.
ID AFTERNOON SESSION.
+. Court reassembed at O'Clock.
y, Ryrnn Woodward Us Simeon Lore
al Jr.. Judgment for paintiff TO amount
a. naIaware State Fire ami Marine Ii
n srrance Company is. Wm. Il. Croasdal
10 continued with leave to amend, on nt
o. tion of Levi Bird, ESQ defend ants coul
Id sci. , r.,
surance Company Us Eoery Eren,ng Pu
at lishing Company conuhueu on ihotio
n of Mr.. Bird. defendants counsel.
s. Wben these two cases were called NJ
ri I,ird annlipd 10 have them continued e
It. the ground that he was noe IN ;eaoiue' "a AZ !