The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1895-11-08
NEW TRIAL IS REFUSED
lOpiaion Of Jadgc Archibald in Famous
IN Hand 1rcspass Suit.
THAT NOTABLE CASE REVIEWED
Judge Unable to Find Anything That lie
Thinks Would Warrant Him in Allow.
ing tho Plaintiff Another Trial.
Extracts from the opinion.

tflui IN Che notable tfcRliiSS suit VI Dr'
d. u. Hand, of this city. against the
Central Pennsylvania Telephone COM
pany DR.. Hand sued to recover dam
ages for injuries alleged to have been
sustained on September 6, 1889, at West
Lackawanna and Ninth street. He
was driving up the avenue and at
Ninth street his horse stepped on a
wire lying on the ground. The animal
received an electric shock, was killed
and fell to the ground.
DR.. Hand left the carriage and tried
to raise the animal by taking hold OF
the bride. He claimed to have received
u shock OF electricity that made him
very sick at the time and caused him
to vomit. From the shock, he alleged,
that he was permanently injured, one
of his arms partially paraiyzed. 1t was
maintained that the company was neg
ligent, because it's telephone wires
should have been guarded to avoid
possible contact with a trolley wire or
any part of the system connected there
with; because the wire. which fell, was
eaten through by rust; because the
company had notice that the wire was
down and had sufficient time before the
accident occurred in which to have re-
paired 1t.
The case took eleven days to try.
Judge Archibald was on the bench.
Mayor Everett Warren and Attorney
Candor. of WiliamspOrt, defended the
company's interest, and the plaintiff
was represented by Attorneys s. h.
Price, c. X. Pitcher, and j. Elliott
Ross. There were a large number of
medical and electrical experts called
upon to testify by the 'plaintiff and de-
fendant, among them being Prof.
Thomas p. Lockvo~' of Boston. rec
ognized as one of the most competent
experts on electricity in the United
States.
The jury agreed upon verdict on
Tuesday evening, June 19. last year. at
o'clock in the evening; it was read in
court the next morning. The jury
found for the defendant company.
The attorneys for DR.. Hand took
steps Immediately for a new trial and
a rule was granted to show cause why
a new trial should not be allowed. The
case came up at the following argu-
ment court, and the opinion of Judge
Archibald was not handed down until
yesterday. 1t Is a voluminOus docu-
ment and with the quotations of law
and authorities eliminated, Is as fol-
lows:
The principal questions raised at the
trial and discussed at the argument for a
new trial are grouped under these heads
l. AS to the evidence rejected. 2. AS tC
the degree of care generally required ol
the defendant company. g. AS to their al.
legged negligence with regard to the fall OF
the wire which caused the accident. 4. As
to the charge of the court and the an
swers to law points.
What tho Verdict Meant.
Had the jury found that the company
was negligent, they must have found a
verdict at least for the value of the horse
however they may have been impressed
with regard to the alleged injuries of the
plaintiff personally The general verdict
in favor of the defendant which was rem
dered can only, therefore. be Interpreted
as a finding that no negligence on the part
of the company was shown, and this elimi-
mates from the case all errors that may
have been committed In the rejection OF
evidence going merely to the question OF
the injuries to DR.. Hand himself.
Judge Archibald goes on to speak of the
rejected testimony Of Drs. Wehlau and
DOlan and other witnesses. The opinion
sets. forth that the court Is not concerned
with what the trolley company, whose
wires are charged with a dangerous cur
rent of electricity, find 1t their duty to do
to guard those wires from contact with
others. The case cannot be looked at from
this standpoint. If 1t has been found
necessary by telephone or telegraph COM
panies, whose wires and currents are
similar, to put up guard wires to protect
of street railways 1t would have been
relevant on the part Of the plaintiff to
show It.
The plaintiff proposed to show that a
not specified ir the offer. This left it too
indefinite tc ''missable. The earnest
contention ntiff's counsel at the
trial wa" defendant company, be-
GAYS" .dngerOuS character OF elec-
tric .",s was bound to use not simply
ordinary, but extraordinary care in the
construction and maintenance of its sys-
TEN. This rule was not adopted in the in
structions given to the jury; on the con-
trary, they were told that the degree re-
quired was only that of ordinary care. A
number of authorities and questions OF
law are next cited by Judge Archibald.
Principal Ground for Complaint.
One of the principal grounds for present
complaint was that the question of the
company's negligence in not maintaining
way was Withdrawn from the jury. While
it Is true that the evidence showed that
this wire was badly rusted, 1t was not
shown that 1t was either originally faulty
or that it had remained in place so long
that the company ought to have known OF
its defective condition and removed it.
As was said In the charge to the jury
the plaintiffs case was destitute Of any
thing by which to Judge of whether the
company in this respect had fulfilled it's
Is
Is to be proven, not assumed. The de-
fendant company can only be convicted
of negligence In case they knew or ought
to have known that the wire was In such a
defective condition that 1t should have
been taken down. That 1t was half way
rusted through does not necessarily prove
it. Professor Lockwood testified that,
while the rust undoubtedly affected the
would be also reduced by the same process
and Herewith the strain upon the wire it.
self. And even Mr.. Fern, the plaintiff s
own witness, admitted that without n Sc
we're shakingit might have stood for years.
That the wire broke when subjected to
the pressure of the electric light wires
which fell on Chestnut street during the
storm, establishes nothing.
This might happen to new wire as well
as an old one, and neither can be expected
suming for the sake Of argument. that
rusted as 1t was, the wire was In a condi-
tion to require removal, there was moth
ing In the trial to show, even with that
have known 1t. No actual knowledge is
shown; the plaintiff only said that 1t was
the company's duty to know the insecure
condition OF the wire and remedy It.. All
wires In their liability to rust are not
alike. nor can 1t be determined how long in
general wire Of this character can be
expected to last or how soon to become de-
fective and bad. Without something Of
this kind there is absolutely nothing upon
which to say that the company were
negligent in not knowing Of its condition
and removing It,
Matter Of Argument.
1t Is said that Inspector would have dis
closed the defect. but this is more q mat
ter of argument than of proof. Upon this
also the plaintiffs case IS barren of any,
thing tangible. 1t was not shown in what
manner or how often wires of this charac-
ter should be examined much less is it
shown that such examination on the part
of the company was wanting. On the
contrary, William Neary, one of the line
men and inspectors, said that he passed
this place to and from his home on an
average once or twice day, that he al
ways took note Of the wires as he went
BY, and that II they were out of order he
would have noticed them. II this was not
sufficient inspection. plaintiff should have
-,t,ou,p Without evidpnpa n tho nom