Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1889-05-23

testimony with respect to the ringing Of
the bell was merely negative testimony,
viz: that the witnesses did not hear or
did not notice the ringing of the bell,
while the defendants Witnesses gEye
affirmative testimony TINT the bell
was ring, IL is the duty Of the Jury
to treat the question OF signal aa an
affirmative fact.
On this point Mr.. Massey spoke until
o'clock, when court adjourned until
2,S0 O'Clock in the afternoon.
Argument occupied the session OF the
superior court Monday afternoon and q
large erowd assembled to hear the attor-
rietta v. Parvis VS.. the p, w. Il B. r. II.
Company. The court room was full,
while the space In and around the bar
was crowded to its utmost capacity. The
reporters' table, In miserably poor loca.
ton under the best circumstances, was
surrounded by gang OF coping auditors
Until the acribea had to seek other and
more comfortable locations.
MIR. Massey finished his argument for
the defendant Of $50 O'Clock and Senator
Gray followed him on the same aide.
Albert Constable, Esq, finished for the
plaintiff and spoke until O'Clock, when
court adjourned until 10 O'Clock Tuesday
morning.
The crowd In attendance during the
afternoon was mainly attracted by D
curiosity to hear MIR. Constable. II was
his flrst appearance In the courts of tnis
county in the trial Of an important case,
bat his fame az q great railroad lawyer
extends over the entire Peninsula. His
argument was eagerly listened to. II was
clear, direct and closely argumentative.
He stood back from the table in front of
the jury box, almost in the centre of the
bar. His gestures were few, but striking,
the chief movement being rapid,
sinuous motion Of the hand from
right to left, while held in an
almost horizontal position, much after
the movement of the magician in explain
ing some "now- you-seo- it-and- now. you
don't"-aot. His voice Ia even toned and
clear, seldom rising to high pitch, but
distinct and we'll modulated. His Analysis
Of the evidence was very searching
marked az times by cutting comments and
scathing sarcasm. But the final verdict
was, that although Mr.. Constable's nrgu-
ment was well, worth listening to, II was
no better than many that have been heard
from members Of the New Castle county
bar.
The case of Mrs. Henrietta v. Parvis
vs. the p, W. & 8. II. Il. Co., went to
the jury Tuesday morning. MIR. Constable,
Of plaintiffs counsel, ended his foroible
argument at TO- so O'Clock, and then the
Jury was charged by ,Chiet Justice
Oomegys. With respect TO the conflict
ing testimony about the ringing of the
bell as the train approached the crossing,
the charge left 1t as question OF fact to
be determined by the Jury. 1t was held
that the ruling OF the court in the case
OF Patterson vs.. the p, W. a. r. II. K.
Company, at the May term, 1870, prop
erly was applicable to this case. This
ruling was that the exercise af due care
and diligence on the part OF railroad
companies In the running Of trains across
public highways must be taken TO mean
all the care. and diligence that the cir
cumstanoes Of the place require. The
more dangerous the crossing, the greater
the care and diligence that should be
employed TO guard against accident. The
traveller is also bound 10 use ordinary care
and diligence 10 avoid accident while
crossing the railroad track, and this care
and diligence must be In proportion to the
danger to be avoided. The question fer
the Jury was whether DIR. Parvis came to
his death through lack of care and dit
gence on the part Of the defendant. II 80
the plaintiff Is entitled 70 recover; other
wise she Is not.
At 11.25 O'Clock the Jury retired and
was still out when the noon recess was
taken. At IL. 40 O'Clock the Jury sent q
I a. L. A. H.. III A..
have dinner and the court granted the
request.
It was announced by Levi O. Bird,
Esq, counsel for PLAINTIFF In Anderson &
Son and Margaret A. Flanagan va. the
mayor and Council OF Wilmington, that
both cases woald be continued until next
term.
Another action for damages against the
p, W. u 3. Il. r. Company, brOugh. by
George b. Stewart, was commenced at
the afternoon session of court. The
Hon. Charles B. Lore and Albert Con-
stable, Esq., again appeared as counsel
for the plaintiff, and the defendant COM
phny was represented by Senator George
Gray.
Stewart, the plaintiff, was employed by
the company IS a timer In the railroad
shops in Tits city. On june 2lst, 1886,
he was working on tho top Of o passenger
car in the repair shops at the foot OF
| Fourth street when the car was moved
along tho tracks without notice to him,
80 he claims. As the car moved he was
caught against atringer running across
the building and his hip crushed and
fractured, the injuries affecting him per-
mauently. Damages are laid az $40, 900.
The plaintiff Stewart, young man
about 25 years Of age, was called to the
stand and told his story OF the accident,
detailing his sufsriugs while confined to
bed. He insisted that he received no
warning when the car was moved while
he was working on the roof. DIR. j. A.
Draper, who attended Stewart, described
the injuries. The patient, he said, lay
in bed week before the fracture of the
socket OF the hip was revealed, and after
wards he was kept on fracture bed 10
weeks before he was able to get up. as
q result OF the accident he will be lame
for life. The plaintiffs mother also
testified TO bis prolonged suffering.
Further testimony In this line was
given by Thomas o. Dill, David Ourlett
and Sarah A. Sem. Benjamin +. Tibbett
testified that the car on which Stewart
was injured was moved by order Of James
Mcdowell, foreman OF the car shop truck
gang. kalph W. Pyle testified that
Mcdowell was not eoompetent or careful
man, and on several occasions was under
the influence Of liquor while attending to
bis work. He had frequently heard Il.
O. Lungren ''jarring mp" Mcdowell for
his oarelessness. At 8. 80 o'clock the case
was adjourned until 10 O'Clock yesterday
morning, the early adjournment being
due to the fact of Mr.. Constable being
somewhat indisposed.
THE JUDY DISAGREED,
When oourt took a recess, the Parvis