Daily Republican., 1879-12-13


feadnnt Makes u Motion for u
New Trial.
Specially Reported for the RErUpLIcAs.
New CASTLE. Dec. II.
Court met this moraing at 1890,
Judges Comegys, Woottsn and Houston
on the bench.
The case Of Sylvester Townsend vs..
P. W. K b. Bailroad Company, was re-
sumed.
Jno White being called stated that he
had occasion to cross Fourth street in
the evening the street was toyn up rs
described on Church street side there
was small passage way; there was .
freight car standing out from the fr,ight
yard !; there was a carriage way Il or
| is feet over which walked there was
another small passage way near this
way there was lsmpo lumber pile ,
there is a gas lamp on the corner and
one on the other side Of the road.
Frank Townsend crossed the road at
7 o'clock aud also between ten and elev-
en-; early in the evening there was this
car; it was there at IL clock; the track
on the town side Of the carriage way
was dug out to depth of ten to twelve
inches, there was no guard or protection
TO keep carriages from going in l
consider 1t dangerous.
Here a discussion ensued between
the counsel on the relevancy OF the
question that provoked this answer.
The court supported Mr.. Gordon aud
advised the counsel for the plaintiff to
stick to the production of facts.
Examination continued; city didn't
do the work; an member Of City
Council; was member OF the street
committee; the work could have been
done in two or three days;took railroad
company three weeks to finish it; had
occasion TO call the attention OF the
Street COMMITTEES to the dangerous con-
dition Of the street there.
Cross-examined: Am brother Of
the plaintiff; there are three city lamps
in the vicinity; lived about a mile
from the crossing.
Redirect: Saw my brother next
morning; he was rather a bloodv
looking man; he was confined TO his
house ten days or two weeks.
Cross.examined: Saw my brother
about ten o'clock; he couldn't wash
his wounds; he said they hurt him; he
was sitting in the parlor.
John w. Woodbury., sworn:--Have
charge of the shifting department.;
didn't know that the car was there;
said If the car was there it was put
there by man named Scully; did say
it was put there for the purpose OF
making up trains; the railroad com
pany did the work Of tearing up the
road.
Cross ss-examinel-Of my own person.
al knowledge don't know whether the
car was there or not.
Elisha II. Hoagland, sworn: Was
Street Commissioner when the acci-
dent occurred; the work on the street
was done by the railroad company
with the consent of the city.
Douglass Mccoy recalled: After ac-
cidept Mr.. Townsend apd'l went down
Fourth street and turned towards Third
street. As We were about to cross the
bridge Mr.. Townsend thought that as
he was bleeding freely be had better
90 back and SO we went up Third street
towards the city.
Mr.. Lore offered in evidence the Or
dinances of the city of WILMINGTON. He
also read the provision which stated
that should any car Of the railroad CON-
pany be allowed to obstruct any street
of the city for period Of over ten min
utes the company shall be fined thirty
dollars.
The defendent closed and Mr.. Gordon
made q motion for nOn-suit on two
grounds, first because damages sought
To be recovered, upon the showing OF
the plaintiff are consequential in their
nature and not recoverable at common
law except they be warranted, and that
the defendant according to their show
ing, engaged in the exercise of its law
full rights in the discharge of duties, i'm
posed upon i. by the state Of Delaw are,
and secondly, because this accident, as
shown, was occasioned by the combined
fault and negligence Of the plaintiff and
his companion Douglass Mccoy.
The counsel is speaking in favor oil
the motion. He cited as parallel cases
the erection of shanties and the placing
of Instructions at the Court House.
This has to be done. These are evils
we must submit too. He referred to
the good the railroad company had
done the State, lifting it from obscurity
to position which the citizens should
be proud of.
fsuch trivial charges were to be
brought and sustained by the court the
company had better take up its tracks
and let the State go back to its obscuri.
ty and insignificant past.