The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1889-02-26


Mountain Railroad Company, found for
the plaintiff, awarding him $1,000. Fol-
lowing is
THE JUDGES CHARGE.
n. s Grant vs. Iron Mountain Railroad.
The plaintiff has sued the defendant
three times SINCE September, 1887, when
il began to construct its road on Sixth
street. lie claims that he has been
damaged $4,000 10y building and oper-
ating this road in front OF his property
on Sixth street, and substantially the
declaration itemizes it rs follows
/. That his ingress and egrcss to his
property has been impaired.
.. That his lot Is below the grade OF the
street, rs made by defendants and the
cost Of raising and putting his house ON
proper grade.
3. Flooding and standing water on lot
under house.
4. Change of grade wrongiuly made.
o. For non-uscr or partial non.user OF
the premises while defendant was con.
strucling and completing its road on Sixth
street.
@. Diminished rent or rental value.
:. Loss OF business.
&. Injury from excessive use OF street by
switching or moving Of regular trains aud
running at more than six miles per hour.
.. And has committed a nuisance by its
excessive, improper aud unauthorized uso
of Sixth street
Defendant claims on the other hand.
that II had charter from the State to
build a railroad in Tennessee, and to use
the streets of Memphis.
That the Taxing District designated the
street IL should use aud the extent to
which il should use II.
That the Taxing District fixed the grade
OF the street and required It 10 conform
thereto. by building up the street to the
grade rs fixed by II, before defendant were
allowed TO lay its track.
That II has used the street In the usual
and ordinary way, and rs limited by its
charter. aud only rs demanded by the NO.
ccssitics OF the road.
That the Ingrcs and cgrcss TO his lot
has been impaired by The grades fixed by
the city required TO be- made.
That, personally. II had nothing 10 10
with putting the dirt cNcavatod on 90 this
plaintih's lot, aud hc cannot recover from
them.
The law imposes upon every person who !
inyokcs its aid IN rcdressng the wrongs |
and injuries which lac claims TO have SUI |
icred NJ the hands OF another, that lao
must establish by proof which satisfies the
jury.
That the wrongs and injuries Of which
lac complains were done by the person
whom hc Sues
And also the money value Of such
wrongs aud injuries.
This is called the burden Of proof, and |
the evidence ia plaintiffs favor must NJ. |
ways prcpondrrutc on every material |
point before the jury are authorized 10 |
give him q verdict.
II the evidence is In cquipoisc 20 that
You are unable to say whether the pfcpon.
dcrancc Is la favor Of plaintiff Grant or
defendant railroad, then you must find
Tor defendant
80. too, " II prcponder,cs In favor Of |
defendant, you must find Tor defendant
II, ON the other hand, II pcpondcmtcs |
In favor Of plaintiff, hc il entitled 10 % |
verdict
Prplndcmncc ~ evidence does not
mean tho greatest number 81 witnesses
icsiiying 10 any given point, but such
evidence as from the witnesses detailing
same, their knowledge aud acquainlanccX
with lhr questions IN controversy, LkIelr
means Of information anu upIyoftuniie-
for knowledge upon neutrality-suspicious.. sats-
fcs You ls =. .snat The ficls ol this case
s. to what are the material points upon /
which the testimony must urcpoudvrato la !
favor Vt plaintiff before be- eau recover, !
they arr those.
l. lie must show that these defendants
have injured him.
.. The amount Of the injury Tor hc
eau only recover the amount the proof
satisfies YOU be- has brcn injured
The law applicable 10 this ease aud
which b. 90 control YOU in your cpnsidrra.
ton Of IL. b. given you iu this charge hy
the Court. You are the Judges ut the
weight you will give TO the evidence
under the rule, herein given YOU.
In weighing the testimony you should
look 81 the interest any witness may have
directly ~ indirectly in the insult nj the
suit and say what effect, d any. such I'M
teftst would have in blasting bis testimony.
You should al.p look 10 the manner cx.
hib.iri ou the stand 10y thr witness lcsii- |
iyina
The readiness with which the questions
of one counsel arr answered and jhc hest.
fancy of reluctance With which hc answers
the questions OF opposing counsel. so to
whore u witness makes contradictory stntc-
mcnis oi material facts or b Coutudictrd
hy other Wiinr,as. All these rules should
be- observed in Weighing nnd trying 10 at
rive at truth Of ease.
The drci Rad boz evidence hy plaintiff.
under which hr claims utl' Goo lDI Ht south.
east corner ul Sixth aud Carolina streets.
begins ut "a point uu south sdr cot turil.un
rvri. no Intersection with east lime ul
Brcch street; b then runs east, then south
'ohriu then west tu thu east line uf sixth
y eireuJ then north with lid east line o.
thc beginning This description gives him
no icJ Boo iho sHIl uI thr s.r'F'
llr hls che right tp thu ifHo anI unob.
Firucird usr of thr stree. iHr nHs.s aud
cares io Dds promises and turulht tp pass
over anl along % as auy other citizen.
The legislature hu fully protected the
public iu Boz right % u,r thr s.r1Hi., high.
Wuys 1r alloys ul the Nri pus c.lirs aul
towns ed thc state. us VOL Bs country
iUalt. against The Improper uIy thereof hy
railroads. hy ihu provisions which DO bus
repaired tU bo embodied in ,hr charter uf
cy.n corporation drNunF 90 upeutcu ruii /
BOO thil state. ltisHs follow. "lho line
ur Track ui thp road shall b. sl constructed |
isuui tu interfere with tuu |
U' ihc public along ihr HIGHWAYS. country
roads, sirccls aud alloy. ui cities. towns
ami VILLAGES. so Hs tn allow carts. WAGONS
NuI other vehicles conveniently aui safely /
iu pas 1yDro under ihc liur Ul tack. and
fp H Uut to interrupt travelling uu foot ur
h1r hack. or in vehicles u. luy kind.
loom iIn necessary aud proper uss ui the
!" q j..