Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1894-06-21
M4r couRr rs ENpEp.
Concluding business Transacted saturday
Morning MIR. salisbury Asks for II New
Trial in the Mills Damage Case

w
noon Mr.. salisbury called number Of
witnesses for the defence in the damage
suit OF Mills vs. the Wilmington City
Railway Co. Captain Charles II. Smith
testified that he wac superintendent Of
the railway company at the time Of the
accident. Mills came to the office OF the
company and he took him to see doc
tor, who dressed the wound. His
trousers were torn, but he did not com
plain much about the injury.
The defence finished its testimony in
the Mills case Thursday morning by
calling Civil Engineer George \. Comfy
to the stand. He testified 10 the size and
location of the trees at Shellpot Park
and gave additional evidence in relation
10 the surroundings Of that point. The
defence then rested.
Mr.. Hilles recalled the plaintiff to the
stand. He said he never did anything
TO keep the wound in the leg irritated,
but on the other hand tried 10 cure il.
On cross.eXamination the witness
said he told DR.. Draper not to crock
his leg" during the examination in the
court room. Mrs. Warburton testified
that while Mills was stopping al her
husbands house everything was done
for his injuries. He did nothing to keep
the wound irritated. The plaintiff here
closed its case.
Mr.. Hilles then began arguing to the
jury on the law in the case, and was
talking when court took recess until
$50 O'clock.
VERDICT RENDERED.
The argument in the Mills damage case
was finished ia the superior court Thurs
day afternoon. Mr. Salisbury got through
soon after court reconvened for the day.
and then Mr.. Hilles began his summing
up for the plaintiff. When court ad-
iourned the case was ready for the charge
of tue court.
As soon as court convened Chief Justice
Lore delivered the charge stating that this
is an action brought TO recover damages
for injury to the plaintiffs leg on Septem.
Der 1902, the defendant company being
engaged in blasting rock in the bed OF the
Wilmington and Philadelphia turnpike
road, highway of this county, near
Shellpot. The plaintiff claims that he was
injured by the negligence OF the company;
that the blasting was dangerous and being
done i'll Il most irequented highway; no
proper warning was gwen of the blast or
care aiken to prevent accident.
The defendant claims that it was law
fully engaged in blasting rock for the plr-
charter and the turnpike company; that
| all reasonable care was exercised and that
| the accident was caused by the contributaTy
negligence OF the plaintiff.
In determining this CASE the court
! said, you must assume the defendant was
engaged in blasting lawfully and rightfuily
| at the time and place named as no proof
has been offered to the contrary. But as.
| summing they were there lawfully the
| question still remains, did the negligence
/ OF the company cause the injury COM
| planned of. Persons ON highway have
| right to its use without molestatiOn or
| hindeTance with the Limitation that such
use is subject to reasonable interruption
| for PURPOSES of construction and repair"
Tie court held that if the defendant
| company failed TO see that travellers OH the
highway were fully warned and removed
from danger the company was guilty of
negligence and the plaintiff is entitled TO
recover. If ON the other hand he was
properly warned and disregarded the same
he was guilty of contrbutary negligence
and cannot recover. The plaintiffs right
to recover depends upon proof of the
negligence of the defendant company.
The burden of proof is on the plaintiff.
In conclusion the court said "lf you
find for the plaintiff your verdict should
be for such sum Of money as in your
Judgment would be d reasonable COM
!
of earnings and permanent injury sus-
tanned by him according to the proof
made in the case" The jury retired al
l0.l5 o'clock.
At 1856 o'clock the jury returned ia
court with verdict for the plaintiff fol
$3.50.
The concluding business of the May
term of the superior court was trans
acted Saturday morning when all matters
were finally disposed Of.
Soon after court opened Willard
Salisbury made motion for new
trial in the damage case of Benjamin
Mills VS.. the Wilmington City Railway
Co. The jury came in Friday with
verdict OF $3.50 for the plaintiff Mr..
salisbury cited the following reasons
for new trial:
/. Because the jury gave verdic
against the evidence.
2. Because the jury gave verdic
) against the weight Of the evidence.
3. Because the verdict was against the
law as applied to the evidence, us laid
I down by the court,
9 4. Because the court charged the jur,
| that il was the duty of the defendant K
! see that the plaintiff was removed from
! danger before firing the blast, and that i
. the defendant failed to do so and tn,
/ plaintiff was injured, the defendant wa
: guilty OF negligence and the plaintiff wa
entitled TO recover.
1 8. Because the jury disregarded the in
. structions OF the court that they shoult
. be satisfied of the negligence of the de
: PENDANT by preponderance of proof o
t else that their verdict should be for tn
4 defendant.
j 6. That the court charged the Jury in til
Z following words: The plaintiff y
was struck on the right leg by a piece o
rock which from said blasting (meannl
blasting being done by the detendanD wa
q hurled against his right leg near the knee
!. causing the injuries Of which he com
4 plains which charge of the court was
u conclusion of facts which should hay
a been left to the jury and was against tn
r weight of the evidence and against the con
IS tention of the defence.
i Z. Because the proof that the plaintiff
left a place of safety and was iniure,
4 through his own negligence was over
: whelming and practically uncontroverted
.. Because the jury in giving their yer
! diet against the evidence were manifesto
G influenced by Partially, prejudice, passioi
y or some undue bias.
IS .. Because the verdict is against tn
! weight of the evidence on each and al
II points material and necessary to suppor
tine plaintiffs case and on many withou
g evidence.
q Mr.. Hilles, who represented the plain
- tiff, was handed copy of the reason
: for appeal by Mr.. Salisbury 1t wa
then agreed by counsel that the argu
ment for new trial should be set 10
IT September 10th, the first day of the mex
II term.
;. In the divorce case of Mary L. John
1t son vs.. John johnson, p. l.. Cooper, Jr
/ asked that the award of COMMISSIONS
/, Macallisier, which favored the grantin
d of the decree, be Withdrawn on III