Evening journal., 1893-06-12
HESSION JURY NOW OUT
Chief Justice Lore's Lengthy
and Able Charge.
CLEARLY IN FAVOR OF THE CITY


sioners Appointed to Take Divorce
Testimony.
The case Of owen j. Hession VS. the
mayor and City Council of Wilmington,
upon which so many cases hinge, went
TO the jury this morning after two
weeks trial in the Superior Court.
When court convened at 10 o'clock this
morning nearly every lawyer in the city
and many interested laymen were present
TO hear Chief Justice Lore deliver the
charge. He began few minutes after
court met and the delivery occupied
nearly haitian hour. He reviewed the
evidence and authorities and commented
thereon, his charge being clearly in tho
city's favor, as the follow ing closing
paragraphs will show;
The Question a New one.
1--WE understand that IL is admitted in
the case now on trial, by counsel on both
sides, that the question Is a new one and
never before broadly and fully presented
before the court. We do not feel that
the utterance in the Harrigan case
was intended to decide the broad
question now presented and do
not feel bound by the language there
used to the extent claimed II such,
however, should be its intent and scope
10 is inconsistent with and destructive of
the doctrine laid down in the cases Of
Clark VS.. the city Of Wilmington and
| McGarrity vs. the city Of Wilmington
and with the same doctrine announced
and approved in the Harrigan case IT,
self
Not Liable for Failure.
Therefore, we conclude that the de-
termination of the time and plans for
altering and enlarging sewers already
built, even when known 10 the city to be in
adequate is as much within the discretion
Of the department as the plans, time aud
place for the original building of sewers
and that no action has for the failure of
the city TO remedy such inadequacy even
after notice thereon, where the city has
acted In good faith and not willfully
and wantonly In such failure.
Gravity and Importance of the Case.
Much consideration has been given tC
this part of the case, because its gravity
and Importance far transcends the
amount involved in this particular case
and establishes a principle which might
make this department Of municipal gov
/
bearable burden.
The Benefit Of the Money.
ut Is one Of the incidents of municipa
as we'll as Of the other forms Of civlize,
D government, that the public good mus
D take precedence over that Of any on
individual That the one who suffer
( damage from such cause must get his onl,
reward in the benefit TO the many and II
the general good of the communii'
, in which he lives Ii is the penalty tina
he must pay for all other benefits con
ferred by such government ln all suci
cases he suffers a loss which the Law
fifty terms damnum absque injuria, =
injury without damages.
Can't Recover for Excessive Rainfall.
Therefore, in conclusion, gentlemen
II you believe from the testimony tina
! has been offered in this case that tn
r sewers, as constructed, were sufficient 4
carry of the water in ordinary rain
storms then your verdict should be TO
p the defendants for no principle Of Law
J is better settled than that II th
! fall of water be excessiy
OF phenomenal, any damage thu
. ensues therefrom cannot be charged 4
the city You have heard that the testl
p mony given as TO the extent Of th
p storm, the size of these sewers and thos
constructed elsewhere and upon thi
p testimony you must make up your yer
n dict.
4 No Damages for Inadequacy.
I If you are satisfied that the damag
resulted from defects in the plans or tn
nadequacy Of the sewer although know
TO the city, this being within the discr'
tion OF the department, your verdiC
=. should he for the defendant
If you believe the damage resulte
: from the extraordinary storm or fall {
. rain against which the city was nc
= reasonably bound to,provide, your verde
y should be for the defendant.
city Must Remove Obstructions.l
"But il you helieve that the damag
G resulted flom distractions in the sewe
. by reason OF sand stones and oth'
=. refuse which the city neglgently pc
mtted to be and remain in the sewe
or from the imperfect and unworkmaI
h like manner In which the work
.e building the sewers and connections WI
actually performed, your verdict shou
'e be for the plaintiff and for the amour
ie claimed, viz, S742 %, as there is l
r dispute upon the amount of damal
le done.
e. at is only necessary further TO sa
sr that, as the plaintiff claims the damal
's resulted from the negligence or defau
on the part of the city, the burden
proof is upon the plaintiff to show su'
negligence or default by a preponde
ance Of evidence to your satisfactio
ie If such negligence or default claimed
shown and the city seeks to relieve
ie self on the ground of an extraordina
r. storm, the burden of proof is then
n, the city to show to your like satisfacti'
IS that the storm was extraordinary
m phenomenal
IS. "If the evidence on any material iss
by of the case be contradictory, you mu
re reconcile it if you can if you cannot
iP reconcile It then you should be govern
of by the testimony Of those witnesses, wi
by their character, intelligence, trut
fulness and opportunities Of correct {
servation entities them to the create
credit
be The jury retired at 1926 o'clock
Cases of Matrimonial Infelicity.
of AS soon as the jury retired the gene
trial list WAS gone over Several cas-