The Portland daily press., 1891-05-28

Il lTuQk IOF 90 years. mTs DOQu6y was MS en-
i gineer Tor 10 years. he was hrstclass
man, ranking with the best. He corrobor-
ated Mr.. Martins testimony about the Grand
| Trunk signals.
| Sampson Plummer. yard master Of the
Boston q Maine ct the Union Station, testi-
ned TO the good character and reliability OF
Mr.. Bonney.
William Merritt, superintendent of the
| Western Division Of the Boston & Maine.
| The order to Mr.. Bonney on the morning Of
the accident was sent from his office. Under
those orders the conductor had full charge
| Of the train or engine. Had known Mr..
| Bonney for fourteen years. Good service
| and no fanlt to find with his work. Thirty
| or forty miles would not be too high speed
| for wild engine In a case like this.
Gilman l.. Bracket. Peaks Island, yard
master on the Boston & Maine, testified to
the good character and reliability OF Mr..
| Bonney.
| 81 Ogdensburg, testified the same.
Charles Philbrick, locomotive foreman on
the Boston 81 Maine. had known Mr.. Bon
ney for IA years. His standing was first
class up to the time Of the accident.
The testimony for the defence closed here.
| Judge Symonds began the argument for the
defense at the opening OF the court In the
afternoon. He said he was not counsel for
the Boston & Maine; he had no authority to
represent them and he did not propose to
argue the civil liability Of that corporatio n;
In fact he had pointed out and put in testi-
mony facts which tended to show their liza
bility In civil damages for this accident
the absence-as he claimed-of the blue flag
at Scarboro crossing. He only represented
his client, Mr.. B0nney, and the issue before
the jury was whether upon the evidence,
considered as 1t should be In criminal case,
the conclusion Of guilt results clearly and be-
yond reasonable doubt or whether when
the facts are properly examined and inter-
preted they are consistent with the theory
OF innocence.
To fix upon feloniOus charge against this
respondent rather than the misdemeanor
provided for In the statutes, he thought
harsh on the part of the state; to leave out
the principal, the man who, by the rules Of
the road and by all the evidence In the case,
was In charge OF the engine and had the au-
thority to control 1t and indict only the sub
ordinate, was a severe feature in a criminal
prosecution like this. By the printed rules
and all the testimony. BOnney,
as to. the time OF starting, the
ping, was subject to the control Of the CON
ductor. Tuttle himself gives him the order
and starts him off. de gives this old man
no caution that he Is following slow traiu
when he has been accustomed to follow an
express train. Is a man acting under the di-
rection and with the approval Of his princk
pal, In his presence, to be held alone crimi-
nally responsible? Tuttle was there with
nothing to do except to exercise his super
VlSiOu, WJll6 DOuubY ndu Lu6 engine WITH
all the little details Of running 1t on his
mind. Wasn't It the duty Of the conductor.
with nothing to take up his mind or atten-
tioD, to have something In mind about the
time and speed?
Assuming that the law will be given the
jury as contended for by the county attor-
ney, that the negligent omission OF a known
duty resulting In the death of another, when
proved, is sufficient to establish the crime Of
manslaughter, the question Is was Bonney at
49, Al
means when 1t allows 1t to be the basis OF
manslaughter? Suppose 1t Is true that negli-
genee In the law always means an absence Of
ordinary care. There Is no such thing as
perfect caie no such thing as absolute care.
Men are not perfect. The law does not
establish negligence the want OF or
diDary care must be proved to the
satisfaction Of the Jury beyond
doubt sSsds sS true G that men ~
| forgetfulness? that they may drift away
| from the present facts OF the situation and
become unconscious of them? Wouldn't it
be violation OF the common sentiments of
| humanity to say that unconscious negligence
may make man guilty of a high criminal
offence when at the very time of such uncOn-
seriousness he Is trying to do his duty the
best he can? How these. four men. each
with his life at stake, seeing that train go
out ahead Of them could go out there as they
did and say nothing about 1t, and think
nothing about 1t, Is unexplainable. There
are circumstances that tend to explain 1t on
the part Of Bonney, but not the others. But
there Is the uncontroverted fact; they did it.
How can the jury say they We're not In the
exercise of ordinary care? To my mind 1t
shows the fatality-the concurrence Of cir
cumstances which would not happen once in
ten thousand times-resulting by the Oper-
alton Of natural law, In this accident. There
was not a conscious negligence on the part
OF any one OF them. Ihe unconsciousness
OF B0nney was not his own act, II was not
his own fault. but 1t came upon him by the
natural operation Of his mind. A man can
not in that way drift into crime; there must
be some criminal intent, some reckless dis
regard Of the rights Of others.
After short recess County Attorney Rob-
ins0n closed for the government.
He called the attention of the jury to the
satisfaction every person engaged In the
administration Of the law must feel that the
trainers OF our system OF government In
their wisdom divided the responsibilities OF
the making and execution Of the laws. He
called their attention TO the fact that man
slaughter instead Of always being the felOni-
Gus charge, the high crime spoken Of BY the
counsel for the defense, Is also the nghtest
misdemeanor and may be punished by a fine
of one cent. 1t depends upon the facts OF
each particular case. The law contemplated
this when 1t gave such wide range to the
penalty. But With the penalty the jury have
nothing to do; they are simply to say wheth-
of such negligence as will subject him to any
penalty, however small. To do more than
that Is to usurp the function and the prov
ince of the judge.
As to the argument that a man ought not
to be held criminally liable for forgetfulness,
the unconscious drifting away Of his mind
from its surroundings he inStanced the senti-
mel who 1t may be, worn out by marching
and duty, Is caught asleep at his post; whose
mind not only unc0nsciously but against his
will 1riftQd frOm hiq surroundings. Dut
who, by the inexorable law OF public policy
and the rights Of others Is condemned TO die.
| The telegraph operator who, by forgetting 10
send his despatch, hurls a train to destrue-
| ti0D, isn't he to be held criminally response
BILE? These prosecutions are not carried on
aud penalties inflicted simply to punish the
defendants alone, but for the safety and pro-
lection of the public. What safety would
the public enjoy II the men who handle
| these dangerous agencies, like steam and, In
these latter days, electricity, could relieve
themselves frem criminal liability by setting
| up forgetfulness? Society, to protect itself,
must have such law as the government con-
| tends for, and must enforce 1t.
Mr.. BOnney started out with the full
| knowledge that COusens's train was just
| ahead of him; he took note Of the weather,
| the condition OF the atmosphere and the rail,
and all the external circumstances, for he
| has related them here. tie was In the pos
| session of his faculties, surrounded by unus-
| ual conditions it Is true, but those unusual
conditions. instead Of excuslng him, i'm
posed upon him an additional rea-
son for caution and for keeping his
senses about him. When he found himself
| unable to see the smoke Of the train ahead
| he should have proceeded with greater eau
ton at least he should have consulted his
watch which he says he did not do, TO see
that he was not getting upon the other
| trains time. Suppose he had seen the blue
| flag. 1t would have given him no inform
| alton that he had not already in his posses
sion. The blue hag did not compel him to
wait, but only to proceed with caution, and
| Mr.. Williams, the agent, says the rules re-
| qure him to do that anyway in fog, and TO
have his engine under such control that an
| accident cannot happen.
| Whatever may be the theory about who
| was entitled to the control cf the engine,
Tuttle or Bonney, the fact Is uncontroverted
that Bonney assumed the control and did
control It, without interference, and he Is
| responsible.
| MIR. Robinson closed at half past fye anu ana
court adjourned until morning when 'u"eo
Bonney will charge the jury.