The Wilmington daily Republican. (Wilmington, Del.) 1890-1902, 1896-12-15
NON.SUITS
AGAIN FILED
Two Were Made in The Ewing Case
Yesterday.
Or. JONES' CONTRADICTION.
Says the X-Ray Negative Showed
No Rupture of the Foot
LigamentS,

u
ability be a move by the array Of tho city
council for u new trial, which will for a
time at least prevent Mrs. Sidney Ewing
from recovering the money the july may
say will recompense her for tho injury re-
ceived. Should the verdict be for the city
it is also probable that counsel on the
other side will fight just as zealously for
| another trial.
Philemma Chandler, who was on tho
] stand when court recessed at the noon
| hour, was first ossexalnined by Mr
| Knowles. Ilo knew the plate was broken
| in October because he had passed that
| way during tho month"; The answer was
| accepted by the attorney. The witness
| could not say positively that the plates
were, separated during tho month OF
| October. Ho was positive that he had
| seen the plates separated twice upon
| which occasions he pushed the plates to-
| gether. He was not put under redirect
| examination.
Hallam b. Clements was another man
who had used Ninth street between
Orange and Shpley, but unlike all the
other witnesses in that ho had ridden
bicycle along tho side walk and across the
| gutter, which he said was in u dangerous
I condition, because Of q break in the plate,
which covered IT, When walking he had
frequently caught his heel between the
pletes, which during August were open
for space Of three inches.
The plaintiff having exhausted its sup
ply of witnesses as to the condition Of tho
gutter prior too, and since the accident,
proceeded to prove that the plate had been
over the gutter by the calling of J. II.
Pierce and John b. Woodward, the latter
declaring the gutter had been covered
since 1871.
Then Colonel NJ. Leach of the Board of
Education went on tho stand and testified
to visiting Mrs. Ewing at her home. and
noticing that she got about with consider
able difficulty. This was the last witness
for the plaintiff, and after the constitu-
tion of the city, city ordinances hearing on
the city's bounden duty to keep the streets
and sidewalks In good condition, Mr..
Hilles closed.
Mr.. Knowles, not proflting by his morn
ing experience, opened tho case of the de.
fense by moving for non-snit, taking the
ground that the plaintiff had not proven,
as he believed, that the accident had been
caused because Of the city's negligence;
that there had been no evidence to show
the existing condition Of The gutter for q
period of fifteen days previous to the time
of the accident; that there had been no
witness who had said the plates were sep
araLed for a period of fifteen days previous
to the date OF the accident; that the plain
tiff had failed to prove constructive notice
as to the condition Of the guGter. There
fore there WAS no fault whore there was no
knowledge, nor no negligence whore there
was no liability.
The motion fell however, Chief Justice
Lore, stating for the court that he did not
think the case was ono that could be non.
suited. The question as to whether the
city was negligent was one for the jury to
decide.
Not withstandlng this defeat, city So
licitor Harman, submitted another mo-
tion for non suit, by virtue Of the statute
found in Delaware law which eXempt5 the
city from all liability arising from defects
in sidewalks unless ID Is proven that the
city caused the defect.
The seemingly determined effort on the
part of the city to non-suit the action
caused Judge Cullen to speak against the
motion, hs informing tho city solicitor that
he could ask the courts charge on tho
matter and then If not satisfied he could
take writ Of error and have the question
argued before another court. Then Mr..
Harman resumed his sent, but no sooner
had ho done so than Mr.. Elliott arose and
asked tho court to allow tho jury to visit
the place which request was considered by
Mr. Hills as tho most remarkable one yet
proposed by tho defense because it had
been proven that the sidewalk had been
repaired since Mrs. Ewing was injured.
or course the court agreed with counsel
for the plaintiff.
KNOWLES BEFORE THE JURY.
Every effort to prevent the case from
going before the jury having failed, Mr..
Knowles won't before the body, opening
with the remark that 1t was useless to go
into the case to contradict so mething that
had not boon proven, nevertheless they
would, and with increased feeling that
Justice Is often abused when q case like
the one in progress can be brought into
court and an effort made to attach blame
and responsibility on tho city for an acci-
dent sad and unfortunate rs tn is, when
the city is not blamable for it.
He then stated that the defense would
prove that the city had never been inform
cd of the condition Of the sidewalk or gut
ter: that thore was no defect in the gutter
plate; that the testimony OF medical ex-
perts could not be relied upon and an acc-
dent such as Mrs. Ewing suffers from
could not be caused as had been stated
10 break down the plaintiffs testimony
regarding the dangerous condition of the
sidewalk Mr.. Elliott called City Engineer
Wilson who explained another chart of
the square and swore that there were lights
at the intersection Of Ninth, Orange and
Shipley streets. ::
This was far short of what the city bad
expected, and the effect of the TESTIMONY
was destroyed entirely when he told Mr..
Hilles that there wero trees and awnings
In tho square which might have mads the
portion Of the pavement where the gutter
was, dark. He then left the stand.
J. Nowlin Gawthrop, who was street
and sewer director during the year 1894,
testified that as such director he bad never
received information regarding the gutter,
nor was there any record IN the office Of
such.
9,The witness knew the plates were
NJ 10 tbnt hn ID
notice the condition until last Saturday.
Mr.. Elliott wanted to know If the break
was such that would cause an injury
similar to that which Mrs. Ewing suffer.
cd. but Mr. Hills believed it an expert
question. and as tho witness did not want
to pose as an expert In tho matter, he did
not answer the question. Mr.. Elliott did
not insist on an answer and the court
allowed tho witness to leave tho stand.
Francis McCloskoy, who was u street
commissioner during 1894, and during his
term OF Office had received numerous COM
plants about dangerous gutters and side.
walks, but had never resolved any com.
plant against the gutter In question.
The witness had frequently gone over ths
gutter plate, but had never seen any do.
feet 1t. The testimony was not altered
by Mr.. Hilles in cross examination.
Charles Baird. Henry F Duro and
Charles Whaun had passed the gutter
frequently, pryor to the timo of thu acct.
dent, but saw no defect In tho plate.
Dr.. J. j. Jones was called to contradict
the plaintiffs testimony regarding the
surgical phazo OF tha case. Ho said he |
heard the testimony Of the plaintiff, aud
thought 1t very imprudsnt thing tos
Mrs. Ewing not to GU! in d physician uu-
til three months after thu acc.isnt He
examined the limb with tho Xrny photo.
graph, and said that 1t showsl that the
leg was not out OF shape. He contradict.
ed DR.. Morgan, who said that there was q
sign Of roughress on the bone saying |
that no such thing existed, at loast the
photograph did not show 1t. He explain.
ed his testimony by the use Of bones of tho
leg and foot. Thore was no severe in.
nammaton or rupture Of the ligaments,
he said a, the X.ray did not show any.
The examination was still in progress
when the court adjourned.