The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1895-04-09
MR.. SMITHS SENSATION
1t Made Its Appearance Again in
Common Pleas Court.
METHOD or DRAWING JURORS
Present System Is Contrary TO Law. Mr.
Smith Says-Jury Finally Secured but
Did Not Have to PASS in Case.
as u NOnsuit Was Granted.

OF the Dauphin county courts, came UP
from Harrisburg yesterday AFTERNOON
to assist the local judges in trying cases
on this weeks common pleas trial list.
He was assigned to court room No. 2,
and the case of Thomas Kennedy
against the Delaware. Lackawanna
and Western Railroad company called
for trial before him.
The jury to try the case was drawn
In the main court room, and when
Deputy Prothonotary Myron Kasson
began to call the names of the jurors
Attorney Cornelius Smith sprang one
of his little sensations by objecting.
He said that the law specifically states
that disinterested person shall draw
the names of the Jurors and as they are
announced the prothonotary or his rep
resentative shall record the names
Judge Archibald, without passing
upon the merits of the point raised, di-
rected Court Messenger M. +. Mean
drew to draw the names of the jurors
from the box and Mr.. Kasson recorded
them.
Mr.. Smith was alone in conducting
the case for the plaintiff and
the defendant company was rep
resented by ex-Judge w. II. Jes-
sup, Attorney Il. n. willard and Attor-
ney NJ |. Corbett. Mr.. Kennedy was
put on the stand and testified that on
May 20, 1893, while walking over the
cover of tank of hot water in the
boiler room at the Pyne colliery of the
Delaware. Lackawann and Western
company the covering gave way and he
fell into the tank, which contained be-
tween three and four feet of scalding
fluid.
After Results OF Burns.
He was badly burned from the hips
downward and his arms to the elbows
were also scalded and denuded of skin
Since he recovered from the effects of
burns he has been unable to walk much
on account of the blistering of his feet,
and he suffers greatly from an itching
sensation about the legs. The results
of the burns are permanent and he suf-
fers much pain and annoyance, he says,
from their effects.
During the time he was confined to
his bed he suffered indescribable pain,
which at times was so acute as to rem
der him unconscious
DIR. j. j. Carroll, of the West Side.
testified that the burns Mr.. Kennedy
sustained We're serious and painful. lie
treated him for them from May until
September, 1893, paying him two or
three visits a day during that time.
Mrs. Thomas kennedy, wife of the
plaintiff, testified that bills amounting
to $500 had been contracted in paying
for medical services medicine and
nursing. Several other witnesses were
called to give evidences to the nature
of the plaintiffs burns. John Moore, q
carpenter. was called to testify to the
life of pine boards placed over steaming
water such as were the boards covering
the tank into which Kennedy fell. The
boards had been over the tank seven
years. Mr.. Moore said that the boards
under such circumstances would not be
safe after three years use.
Application for a Nonsnit.
The plaintiff rested with the testi-
mony of Mr.. Moore, reserving the right
to call later witness who was in Car
bondale yesterday afternoon.
Ex-Judge Jessup then asked the court
to grant compulsory nonsuit on the
ground that negligence on the part of
the defendant company had not been
shown; that the plaintiff was outside
of the scope of the service he was en-
ployed to perform when he was burned;
that he was guilty of contributory neg
ligence in going upon the covering of
this tank, knowing as he did that the
boards had been laid there for seven
years and might be unsafe.
Attorney Smith opposed the motion
for a nonsuit. He said the company
was compelled to provide safe place
to work in all its connections. This
tank into which Kennedy fell was so
dangerous, in Mr. Smiths opinion, that,
according to the mine laws, it ought
not only have been safely covered but
guarded as WELL
Judge Simonton refused to endorse
Mr. Smiths line of reasoning and
granted a nonsuit for the reason that
Kennedy had no occasion in the per-
formance of duties assigned to him to
go on the cover of the tank, the break
ing of which resulted in the burns he
sustained.
An Insurance Case.
After the list of Jurors was called
yesterday morning upon the opening of
the third week of the March term Of
common pleas court, the case of James
w. Welsh, executor, against the Dwell
ing House Insurance company was put
on trial before Judge Archibald in the
main court room.
On Dec. 80, 1891, Mary Welsh, the
owner and occupant, of house at S3S
Crown avenue, this city. had it in
sured, together with furniture and out
buildings, in the defendant company
for $1,000. The policy was to run from
Jan. 3, 1892, to Jan. g. 1895. On May 8.
1892 Mary Welsh died, leaving James
Welsh, her son, as her executor. The
property insured was destroyed by fire
on April 3, 1893. and the executor, after
making proofs of the destruction of the
building and contents, asked the insur-
ance company to make payment of the
loss This was not done and suit was
begun by Mr.. Welsh as executor. Ex-
Senator NJ L. Mcdonald and ex-Dis-
trict Attorney John p. Kelly appeared
for Mr.. Welsh yesterday, and ex-Con-
gresham Lemuel Amerman and Attor-
ney A. e. Lesser, of Lewisburg, for the
defendant company.
Proofs We're Admitted.
After the case was opened to the jury
James Welsh was called to the stand