Evening journal., 1896-01-06
IT HAS GONE TOTHE JURY
Plaintiff Wilkins On the
Anxious Bench.
ELOQUENT ARGUMENT BY KNOWLES


the City soiioltor-wnkins Looked at
Hts watch to SEQ what Time tho 40
cldent Occurred.
The closing seen In the damage suit Of
William d. wilkins va. the Mayor and
Council OF Wilmington began at 1Ol
o'clock this morninp Mr. Sanborn, who
Is associated with Nj Bird for the plain
tin, made presentation Of the plaintiffs
prayers TO the court They we're In eject
that the city was responsibls for the con.
dition OF the public streets. Ia order TO
be excused BY reason OF storm, Il must
show beyond doubt that the storm waf
Of such extraordinary character that
human agencies could not guard against
irs destructive effects, and 20 far enough
TO cOnnect 10 with the accident
City Solicitor HArnan put Ia the
prayers for the defendant.
'ln case Of any part o. or place In,
street rsquiring repair. the city is
expected to use only an ordlnarf and
reasonable amount OF diligence aud
celebrity evan lees being required OF It
than from An individual
"A city 10 not an insurer OF the safety
OF its public streets, but ita whole duty
reasonable care to KEGS the streets safe
for ordinary use
Even though the city did leave the
pipe unclossd. yet II there was an inter
venlRg aud independent agency such as
this torrent of rain tthat caused the
sinksge around the manholo without
which independent agency sinkage
would not have occurred, then the pipe
was the remote cause OF the slnkage, and
the city Is not liable.
III the slnksge or cavity In that point
Of tha street was At the time so guarded
by barriers and danger lights that they
were visible to persons travelling along
the streets, and by looking the party
might have seen them then he was
guilty OF contribrtory negliFencs n he
drove into the hole 40 marked, and he
cannot recover.
Even though the defendant were ever
20 guilty OF negligence, yet n the
plaintiff himself were guilty Of negliK-
encs OF want Of ordinary care, howovsr
slight which contributed to the happen
ing Of the injury, then he cannot
recover
"In order t. prove negligence to
establish llsbility it Is absolutely
necessary to producs strong evidence to
the slfset that either sctual or construc
tive notice was given to the oity. aud
that constructive notice should not be
applied whore the defect has bsan very
short continuance as municipal corpora
tlons are held only TO reasonable care and
diligenos IN search for highway defects
aud particularly where they are concealed
by darkness.
The burden Of proof is up,n tho
plaintiff 10 convince the jury Of the
liability Of the defendant for the alleged
injury beyond q reasonable doubt. or At
least By a prepondersncs OF evidence
and n such a doubt exists ia the minds
OF the jurors, their verdict should bs for
the defendant
Mr Ssnborn weat to the Jury, and,
after reviewing the testimony in an able
manner, asked the jurors TO render
verdict for s. 600 in favor Of the plsin
tlff
Horace G. Knowles, associate counsel
for the defendant, then bsgan an abb
argument for the city. HIS speech vould
have done credit to one OF ths Oldest
members o. tins bar he held the elossst
attention Of every one IN tbs court room
while he went over the testimony IN a
convincing aud, at the sane tine, inter
points was reference to the testimony OF
Wilkins. which was that aa soon AZ he
got up from the horse'e body, 10 looked
to see what iims il was
He argued that the pipe below ground
WAS properly closed aud that the sinkage
was the result Of the heavy rainstorm
Toe city. had no constructive notice
OF the cavity. l. iled ia the cavity as
soon as It knew Of It's existence Mr..
Bird. he said. was one OF those men 90
fortunsts and blessed with orRtory that
evidence, to him was Of secondary
importanca-in fact. Hso-
ond Denonsthenes and Ohonte
He appealed 90 the Jurors
to say to him that his eloquent argument
and ingenious twisting Of evidence were
lnadequsts TO the preHont emergency
He closed his ninety minute address at
70. 40 and bis eloquence end argument
wtro fsyorsblyscs amented upon BY some
of the leading members Of the bar
Nc Hsrman succeeded him aud argued
before the jury until the noon recess was
taken.
Mr. Bird will close this afternoon.
On application Of Lswis o Vandsgri II,
of c5ansel for tbs Dlaiatlf the tlms for
the fling Of pleas 10 ths rspltvln case Of
tha e. + Kcrwin Manufacturing Com
pGny VS. Joseph p Truxton. sheriff OF
Sussex county, Was continued
until Saturday, January IS The
action TO recover from tbs
sheriff SO 600 worth OF cans. part Of the
assets OF Morrow and Coulbourn, OF
Seaford John n. Richardson and Brad
ford, Vandegrlit and Byrne, represent
he Ksrwin Company and Charles
Richards. Charles M Cullen ana vii
liam IA. Boyce the sheriff.
Henry K Bringhurst. Jr.. for the
defendant, asked for and obtained a ruls
to show cause Why the judgment In the
case Of James Hayes vs. Bonz Adkins, In
Magistrate Sutton's ONCE, should not be
vacated on the ground that he had
not received legal notice OF the suit aud
that be owed nothing to the plsiDtif,
who was represented by 7. Bayard
Heisel The rule was made returnable
on Wednesday
ADan Day In Court.
In Municipal Court to day Frank Jones'
colored, charged with assaulting Howard
i Dha al