Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1894-02-08

SUIT oil MaNwGiIS ADMINISTRATOR VS., the
Wilmington City Railway Company for
$4,000 damages. The argument in the
case was finished yesterday week,
and as the Jury did not care to remain
ont on the case yesterday week,
they asked to be discharged until next
morning, which request was granted.
The charge of the court required just 12
minutes. The full text of the charge is
us follows:
GoRticBicH of The jury: This is an action
OH the case brought by John Maxwell.
administrator of Robert $. Maxwell, de-
ceased, against the Wilmington City Rail-
way Company, to recover damages for the
death OF the said decedent; caused as il is
alleged by the negligence Of the defendant
company.
On the 2lst day of October, 1892, on
what was known as Columbian Jubilee
Day, between L. O'Clock midday and
O'Clock in the afternoon, Robert $. Max
well, the deceased, who was member of
the order of knights of the Golden Eagle,
was riding his young mare easterly on
Delaware avenue in this city, with two
companions TO join in the parade of that
day. Between Clayton and Rodney streets
the mare he was riding was struck bv
electric car No. Al, which, propelled by
electricity, was passing westerly OH the
track OF the defendant company, laid on
the said avenue. By the collision the
mare was knocked down and pushed
ahead of the car. The rider was thrown
under the trucks of the car, dragged some
distance and killed.
The plaintiff claims that the accident
and death resulted from the negligence of
the defendant company. That at the time
of the accident, car No. Al, with defective
brakes, draped in flags aud bunting, was
descending the grade on Delaware avenue,
at an unreasonable and dangerous speed;
with no apparent effort on the part of the
lnotorman to stop the car; nOtwithstand-
ing an apparently frightened and ungov-
ernable horse was in full view upon the
track before him.
The defendant on the other hand denies
all liability and AYERS, first, that it was in
no wise negligent, but made every effort to
prevent the accident. That its car No. Al
and its railway tracks were both in good
order. Its motorman vigilant and efficient.
Second, that even if there was negligence
on the part of the company, that there was
cOntributory negligence OH the part of the
deceased, in that he was riding spirited
nervous and unbroEen young mare, and
that he voluntarily crossed with her in
front of an approaching car, from safe
position to Il dangerous one, from the
south TO the north side of Delaware
avenue.
This case has excited unusual interest,
and has been conducted on both sides
with signal ability and marked pro-
fessional courtesy. The trial has consumed
nine days; but as it is the first case in this
State involving the rights and liabilities of
electric railways on our public streets, we
think the time consumed and your pa
tient hearing wisely rendered.
In compliance with the PRAYERS of coun-
sci on both sides. all of which we have
considered and tried to meet in this charge,
the court will now endeayor to lay down
the law governing the case as clearly as it
may.
Delaware avenue, along which the tracks
of the defendant company run. is public
highway OF this city. The defendant COIN
pany has u right to use the avenue for the
operation of its electric railway. in com
mon with travellers, who may elect to use
II, on foot, on horseback, in vehicles
drawn by horses or otherwise. Every part
of this highway may be rightfully used
by the public. The electric cars can use
only q part Of il as they move only in
fixed lines over their tracks. Within these
lines the right of the company is superior
TO that of other users and must not be
unnecessarily interfered with or OBJ.
structed.
These cars, although belonging to a pri.
vate Incorporation are used for public convey.
ance, carrying many passengers, and meet.
ing largely, the growing demand for rapid
transit i'll city life.
In using this highway, all parties are
bound TO exercise reasonable care and dill.
gence, to prevent accidents and collisions
euch care must be in proportion 10 the
danger accompanying the particular use in
each case.
II isthe duty of the company to put and
keep their cars and roadway in good con,
oltioni to provide competent and careful
motormen and servants, and to see thai
they use reasonable care in operating the
cars to avoid danger, that they run al
reasonable rates of speed; and that they
slow up or stop if need be where danger /.
imminent.
There is like duty on the part of peopl,
otherwise using such highway TO stop, anf
il need be to turn out OF the tracks OF the
cars in the presence of danger; inasmuch
rs being Tree to move at pleasure, they
nave the use of every part Of the highway
while the cars can only use their fixed
tracks. You will readily perceive if this
were not so, that travel in electric car.
would be at the mercy of every person
who saw fit to place himself on the tracks
and rapid and convenient transit of pas
sengers thereby would be at an end.
Both parties, therefore, we're rightfully
onlDelaware avenue OH that Hateful day.
We are, therefore. confronted with til,
crucial question in this case--did the acci
dent and death of Robert S. Maxwell re
suit from the negligence of the defendant
company?
II the defendant company was guilty Of
no negligence, your verdict should be TO
the defendant. IL You believe, however
from the evidence, that the defendant WA
guilty of negligence, but that the deceased
Robert \. Maxwell, was guilty of the negli
gence that was the prOximate cause of thu
accident and death, then he contributes
TO the accident and the plaintiff, his ad
ministrator, cannot recover.
If, however, you believe from the eyi
dence, that the defendant company wa
negligent, and that such negligence wa
the proximate cause of the accident ant
death; in that case, although the decease,
might have been guilty of some negligence
which was remote and not proXimatn. i
would not be contrbutory negligence. am
the plaintiff would be entitled to recover
for it is now well settled that the plaintiff
may recover damages for an injury cause,
by the defendants negligence. notwith
standing the plaintiff own negligence ex
posed him To the risk of injury, If sucl
injury was Woximately caused BY the dc
fendants failure after becoming aware o
the plaintiffs danger, to use ordinary car
Tor the purpose OF avoiding injury to him.
tshearman d Redfeld on Negligence; Sci
10 aud cases cited.)
This is now the settled law in this STATE
Ioues VS.. Belt and Ford VS.. Chas. Warne
Go.
Where there has been mutual negl
gence and the negligence of each part
WAS the proximate cause of the injury
no action whatever can be sustained
American and English Encyclopedia q
law, page l6-Praw VS.. Vermont Centra
Railroad Company, Vermont, 4s7 an
other cases
Gentlemen, this whole question Of negl
gence is for your determination under tn
law as the court has above laid il down
NaII a..l.ntl...n tha.. ...u..-