The morning news. [volume] (Savannah, Ga.) 1887-1900, 1890-02-28
THE SMITH CASE HorLY FOUGHT.
A Sharp Legal Fight in Progress in
IN the City Court.

A Sharp Legal Fight in Progress in
in the City Court.
When the city court took a recess last
night the trial Of the Smith damage suit
against the Savannah, Florida and West
ern Railway Company had not yet bean
concluded. The testimony is all in, and W.
S. Chisholm, Jr., and Hon. F. G. du Bignon
have argued the case for the railway COM
pany, and Hon. p w. Meldrim will close
for the plaintiff this morning.
When the trial of the case was resumed
yesterday morning j. w. Wilkinson was
called in rebuttal by the plaintiff. He
testified that he saw a scratch on the ladder
OF the box car on the sidetrack, and that
there is a slight curve at New Branford
where the accident occurred. NJ. Peavey,
a carpenter, testified TO the same effect.
A e. Smith, the plaintiff, was recalled,
and testified that he was travelling at the
time OF the accident on 1,000-mlle ticket
purchased at Townsville, Ca, aud that he
has knowledge as merchant that goods are
shipped direct from Savannah to New Bran
ford by the Savannah, Florida ami Western
railway. From the position he occupied in
the seat Mrs. Haddock, he testified, could
not have seen his arm, which was not out of
the window, nor had he said that it was in
referring to the accident shortly after his
arm was broken.
James K. Ward, a mechanic of New
Branford, testified for the plaintiff that he
had measured the width of the track on
which the train was moving at the time OF
the accident, and the distance from rail to
rail is 4 feet 9 inches, the width of the pas
senger car 9 feet, and the projection of the
coach on each side 2 feet u inches; that
the ladder on the box car which bore the
marks of having been scraped, projected
inches; that the train in going forward
would careen more than when backing,
and that is why there was no collision in
backing; that the rail of the truck on
which the train was moving is three inches
lower than the outer rail-
In cross-rebuttal, Capt. R. A. Ivey said
that the inside rail is only an inch lower
than the outer rail, and the plaintiff having
sought to show that Ivey was an interested
witness, by reason of transporting freight
on his steamboat, the witness testified that
he is a common carrier and carries freight
for the public, and is not in the employ of
the Savannah, Florida and Western Rail-
way Company.
Engineer Cross of the train was recalled.
and he denied that the careenlng of train
will be greater at the point of accident
when the train is going forward than when
going backward. The collision, it is claimed,
occurred when the train was going for
ward.
Mr. duBignon spoke for two hours after
the noon recess. He cited rulings dd lib
ttunl that the plaintiff who contributes to
an accident by his negligence cannot re-
cover, and ne held that the case must be
determined under the laws of Florida,
where the accident occurred, and cited
decisions of the supreme court Of Florida>to
show that where plaintiff had contributed
only in part to an accident on a railway
he cannot recover, though the defendant
railway company has been guilty
of gross negligence. The case cited was
of the Louisville and Nashville road, at
night, WITHOUT signal light, and wood
piled upon the tender so that lookout
could not see an obstruction on the track.
backed over and killed a man who was on
the track; that the widow sued, got YER
dict in the circuit court, which was reversed
by the supreme court, which, while it criti-
cised the gross negligence of the railroad
company, held that the deceased was guilty
of contributing negligence, and his widow
could not recover.
The counsel for the plaintiff having put
Mr.. duBignon on notice that he will, in his
argument for Mr.. Smith, argue that wit
nesses for the defendant who are in its en-
ploy are interested witnesses, and, there
fore, to be impeached as to the admission of
Smith that he had his arm out of the win
dow, Mr.. duBignon ingeniously said that
he would accept the proposition and ignore
the testimony of Kent, Olmstead, and Cross
for defendant, and that under that logic
Smith is also an interested witness, and his
testimony must also be rejected, which
leaves but one disinterested witness, Mrs
Haddock, the passenger who swears that
Smith had his arm out of the car window
when it was broken.
The case is one of the most closely con-
tested damage suits known to the court, and
there were quite large number of inter-
ested spectators in the court room.