Evening journal., 1894-02-01

superior to that Of other users
and must not be unnecessarily interfered
with or obstructed
"rhese cars, although belonging to a
private corporation, are used for public
convenience, carrying many passengers,
and meeting, largely, the growing de-
mand for rapid transit in city life.
I'm using this highway, all parties
are bound TO exercise reasonable care and
diligence, 10 prevent accidents and col
lisons. Such care must be In proper
tion. to the danger accompanying the
particular use in each case.
1T is the duty of the company TO put
and keep their cars and roadway In good
condition; to provide competent and
careful motormen and servants and TO see
that they use reasonable care In operat
ing the cars TO avoid danger; that they
run at reasonable rates of speed; and
that they slow up or stop II need be
where danger is imminent.
There is like duty on the part of
| people otherwise using such highway TO
stop, and II need be TO turn out Of the
tracks of the cars in the presence Of
danger; inRsmuch as being free
to move at pleasure, they have
the use Of every part OF the
highway, while the cars can only use
their fixed tracks. You would readily
perceive II this were not so, that travel
/ in electric cars would be at the mercy Of
every person who saw fit to place him
self on the tracks, and rapid and con.
venient transit of passengers thereby
would be at an end
Both parties, therefore, were right
fully on Delaware avenue on that fate
full day.
I'VE are, therefore, confronted with
the crucial question: Did the accident
and death of Robert s. Maxwell result
from the negligence of the defendant
companyl
If the defendant company was guilty
Of no negligence, your verdict should be
for the defendant. II you believe, how
ever. from the evidence, that the de-
fendant WIS guilty Of negligence. but
that the deceased, Robert S. Maxwell, was
guilty of the negligence that was the
proximate cause Of the accident and
death. then he contributed to the acci.
dent and the plaintiff, his administrator,
cannot recover.
"This is now the settled law in this
state. Jones VS.. Belt and Ford VS..
Charles Warner Company.
Where there has been mutual negli-
gence, and the negligence of each party
was the proximate cause of the injury
noiaction whatever can be sustained, foul
American and English Encyslopedia
of Law, page 16,-Praw VS.. Vermont
Central Railroad Company, four Vermont
4S7 and other cases.
IF, however, you believe from the
evidence, that the defendant company
| hnf nrl
liRence was the proximate caus,
Of the accident and death; in thai
case. although the deceased might hav,
been guilty Of some negligence, it woulC
not be cOntributory negligence, and thl
plaintiff would be entitled TO recover
for T. is now well settled That thl
plaintiff may recover damages for en- in.
Jury caused by the defendants negli
gence, notwithstanding the plaintiff
own negligence exposed him to the risl
of injury, IL such injury was proxi
mately caused by tue defendants failure
( after becoming aware Of the plaintiff
danger, TO use ordinary care for the puI
I pose of avoiding injurysto him. (Sher
man & Redfeld on Negligence; Sec 8
and cases cited)
Gentlemen, this whole question of neg.
ligence is for your determination unde
the law as the court has above laid 4
down. You are to say whether ther
was negligence on either or both sides
and what was the effect thereof in caus
ing the death Of the deceased.
"In determining this question o
, negligence you are to take into consider
alton the day, the place, the actors
their conduct, surroundings aud all tn
circumstances connected with the sa
tragedy, and after careful and thor
ough review, to say where the blame,
any, lay.
: 'Inasmueh as the plaintiff claim
, damages. because of the alleged negl
gence Of the defendant, the burden O
proof is on the plaintiff to show sue
, negligence to your satisfaction by pre-
p0nderance of the evidence.
in reaching your verdict in this case
i you must be governed only by th
= evidence No declarations or statement
: not supported by that evidence
4 and no information from an
other source should be considered by 20
= for one moment.
a There is great conflict of testlmon
= in this case on nearly every materi'
\ point. In considering conflicting test
4 mony, the rule is, that you must recor
, Gle IL II you can III you cannot reconcll
= It, then you should give credit to, an
= be governed by that testimony. which
= your Judgment is most worthy Of belle
y Taking into consideration the intelli
, gence, apparent truthfulness, bis
or impartislity of the witness
his manner and conduct upo
1, the stand, and his opportunity Of gettin
y correct information. When this is dom
, the weight of the evidence in your bel
~ Judgment must control your verdict.
- SHOULD your verdict be for the plant
= = if, the measure of damages is such
- - sum as the deceased would probably hay
" earned in his business during life, az
which would have gone to his next
4 kin; taking into consideration the age
= the deceased, his ability, disposition
h labor, and habits Of living and expend
- ture
y 'If you find for the defendant, yoi
20 verdict should simply be, for the d
fendant.
1t took him twelve minutes to deliv
n the charge At 1918 o'clock BAili
"a Raney was sworn, and conducted Il
\. Jurors to the grand Eiury room in {
~ northwest corner of the second flo