Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1893-06-15
HESNTON InRY HING.
No Possible Chance Tor a Verdict Say the
Twelve Men Good and True.

owen d. flesSloll vs., tne Mayor anu Nutlll-
Gil Of Wilmington was concluded III the
superior court Wednesday morning. In
the afternoon Mr.. Bird, Of counsel for the
plaintiff began arguing to the court and
Jury. His argument lasted until 4.3O
Q clock when L, q. Bradford commenced
his summing up for the city. lie was
arguing when court adjourned at 80
O'clock until 10 clock Thursday morning.
In the superior court, Thursday after
noon, Levi c. Bird concluded his argument
to the court on points Of law in the Hes.
sion damage suit and Judge Ball opened
for the plaintiff and addressed the jury,
alleging negligence on the part OF the city
in the bursting of Shipley run sewer, July
10Th, 1891. He concluded at 80 O'Clock.
Mr.. Nandegrift then began addressing the
jury OH behalf of the city. lie was fol-
lowed by Mr.. Bradford who was talking
at the noon adjournment.
There was a large attendance of the bar
Monday morning, ali anxious to hear the
charge to the jury IN the case Of owen j.
Hcssion VS.. The Mayor and Council of
Wilmington, action for damages by reason
of the bursting of Shipley run sewer on
the night Of July 10Th, ls0l.
Chief justice Lore delivered the charge.
in the course of which he reviewed the
case from the outset, and spoke Of the To-
cation OF Shipley run and the Norris run
sewers, built by the engineers Of the city,
us Il result of Il heavy rain fall OH the
night Of July 18th. lSDl, when the water
backed up and flooded the streets and
premises Of the plaintiff. The charge
then proceeded
"rhe plaintiff claims that the damage
resulted from the negligence of the city III
permitting the sewer and inles thereto, to
be INSTRUCTED and because the city built
the two sewers iii such Il manner that the
common outlet, was nanifestly Inadequate
TO vent the water conveyed to it, The
plaintiff also claimed that the city
| neglected to remedy the defects after
| police had been given, and that the city
| had knowledge OF these defects for more
than 10 Years prior to the damage com
planned of.
"The defendant, on the other hand,
claimed that the damage arose from an
extraordinary rainfall against which it
/ was not bound to provides that the sewers
were built upon plans approved by the
| duly constituted authorities, under quasi
| judicial or discretionary power vested in
| city, and that for any damage resulting
from any default or inadoquacy i'll the
| plan aud size of sewer, or failure to en-
large same, no action will be against the
| city unless that discretion was exercised,
/ wilfully or wantonly.
In speaking of the law governing the
case. Chief Justice Lore said the Street and
| sewer department HIS u ulSCItllOlIiIS
| power or duty in carrying out plans touch
ing the city streets, and for any error OF
Judgment in such plans the city is not
liable, Gases cited Clark IS. the city of
Wilmington. s Harrington, 243 McCarrty
VS.. the city of Wilmington, , Houston, j3O,
| and others.l
If the evidence shows to the jury's salts
faction, that on the 18th day OF July, 1891
the said sewers were INSTRUCTED TO such an
extent that the water could not vent, but
was damned up and forced back upon the
premises of llrssion, thereby causing the
damage complained of, the city is liable
and the plaintiff is entitled to recover. In
concluding the Chief Justice said
Gentlemen, if you believe from the
testimony that has been offered iii this
case that the sewers, rs constructed, Were
sufficient to carry off the water in ordinary
rain storms, then your verdict should be
for the defendant. for no principle in Law
Is better settled than that If the fall oi
water be excessive or phenomenal amy
damage that cnsues thereirom cannot bt
charged to the city. You have heard thu
testimony given AS to the extent of tht
storm, the size Of these sewers and thosi
constructed elsewhere, and upon this testi
mOny must make up your verdict II Nol
are satisfied that the damage resulted from
the defects in the plan or the inadequacy
of the sewer, although known to the city
|
partment, your verdict must DO for the dc
PENDANT.
IF you hnlieve the damage resulted
from the extraordinary storm or fall q
rain, against which the city was no
reasonably bound to provide, your VerdiG
should be for the defendant.
"But if you believe the dcmage resultei
from distractions in the sewer, by reason
of sand and other refuse. which the cit.
ncgligently allowed to be and remain ii
the sewer. or from the imperfect and un
! wOrkmanlike manner in which the worI
. Of building the sewers and connection
was actually performed, your verdia
should be for the plaintiff and the amoun
claimed, STl225, as there is no disput
upon the amount of the damage done.
! 1T is only necessary further to say. tina
i as the plaintiff claims the damage resulte
from the negligence or default on the pal
: of the city the burden of proof is upon til
! plaintiff to show such negligence or dt
fault BY preponderence of evidence t
your satisfaction. If such negligence q
default is shown and the city seeks to r,
r lieye itself on the ground OF an extr,
ordinary storm, the burden is then ON til
city to show to your like satisfaction tn,
the storm was extraordinary or PHI
: nomenal.
: III the evidence on any material issu
= of the case be contradictory you nu!
|
= reconcile il then you should be governc
'. by the testimony Of those witnesses VIII
= by their character, intelligence, truthful
2 ness and opportunities of correct observe
;, ton entitle them to greatest credit.
Z The delivery of the charge ocCupie
y about half an hour, at the conclusion
!, which the jury retired.
y The case of William II, Sewel VS. Pu
nelps executor was begun Monday murl
! ing and was III progress when court took
I recess at noon.
y In the superior court Monday altG
y noon, the case of William IL. Sewell v
"a Joseph Purncll, executor of Beujami
a Purnell, was concluded and verdict rel
q dered for the plaintiff. Philip O. Chllrcl
IL man appeared for Sewell and Benjami
y Nields for the executor under the will
= Sewell sued for wages as a nurse fro
>, October LIST 1883, to May 18th, 1850 Al
~ swore that Purnell agreed to give him 50
% week for nursing him. The claim VI
$3.50, The jury awarded Sewell Si25. &c
Nields asked for an arrest of Judgment.
The jury in the damage suit OF owen
II Hession VS.. the Mayor and Council of Il
l. city of Wilmington, failed to reach VI
diet and We're ON Tuesday discharged
Ie the court The jury retired AT 1880 o'clo,
as Monday morning and remained out /
Il night. II was generally expected that Il
s. jury would hang"
e. A l3.15 o'clock Tuesday the Jury sent
RS word that they could not possibly agr
ir and asked the court to again read to the
rs the concluding part of the charge Of Il
it Chief Justice. This the court declined
IS do. The Chief Justice told the baiiIf
al bring the jury in, and when Bailiff Ran
did so the foreman was asked whether
TO not the jury had agreed upon verde
i He replied there was no possible chance
" of the jury's agreeing. Several other jur
Is, men expressed the same belief. The iu
IT. was then discharged, IL was learned fro