Delaware gazette and state journal., 1896-01-09

bdAN blidb lndb diuDunbNa w Hlbip bhdl
a severe storm, ii was more like a |
cloud-burst He never knew so great /
a volume in SO short a time.
Prof. William ii. Bishop, who oc-
cupies the chair of agriculture at Della
ware College and is the meteorologist |
of the Experiment Station, was called |
to tho stand. He had taken meteoro-
logical observations at the station and
received reports from five other sta
tions in the State. Mr.. Harman asked
him what the average rainfall was.
Mr.. Bird objected again, but the ques
tion was allowed Prof Bishop stated
that the rainfall was not far from 40
inches year. or one-balf an inch a
day, or four hundredths of an inch an
hour. A storm of thirty-two hun
dredths of inch in six minutes would
be very extraordinary storm.
John Matthews, coiored, had worked
at mixing mortar. He testified that
the lights were burning the morning
after the accident. In reply to Mr..
Knowles Matthews stated that Wick
ems, the plaintiff, cane to his house
and asked him concerhing the hole. lIe
told Wilckens that il was four or five
inches deep. Matthews declared to him
that they had lights5 there and asked
him If he didn't see them. To this
Wilckons replied, Yes and said the
light was burning all right.
In reply to Mr.. Bird the witness
denied that he told Wilckens that he
saw the place where the horse fell into
the hole. He said toEBir Bird that il
horse had struck tho hole it would
have knocked the light down.
Engineer Hatton was recalled He
stated that six cangisges could go
abreast on Pennsylvania avenue be-
tween the manhole apd the northerly
side of the street That space ia
wider than Shipley, Orange, Tatnall,
West, Washington, Jefferson or Madison
streets. After hearing Hatton, the de-
fence rested.
Mr.. Bird called William S. Moore to
the stand. Moore said he acted as
deputy sheriff and Summoned John
| Lemon as a witness. He said that
Wilckens, the plaintiff, was with him.
| He read the summons to Lemon, and
Lemon said that there were no light or
barriers at the scene of the accident.
Mr.. Knowles asked Moore why
Wilckens went along. He said that
Wilckens was helping him find the wit
nesses.
Wilckens himself was then recalled,
and he corroborated Moore's testi-
mony as to what Lemon said. Wilckens
declared that Matthews told him that
he saw the place where the horse went
into the hole.
Both sides rested.
j. Frank Ball announced the settle
ment of the case of CRY vs.. the
Charles Warner Co., which has already
been made public. Court adjourned
| ,,OfiI IN ,inI,olr Mnn6ay NOR
At the opening of court Monday
morning A. e. Sanborn, of counsel
for tho plaintiff, presented prayers
to the court, concerning the law in
the case. He held that the city was
responsible for the condition of the
streets In the matter of the storm
tho city must show it to be an ex-
traordinary storm, and must connect
it with the accident.
For the defence City Solicitor Har-
man presented the following prayers:
In case of any part of, or place
in, street requiring repair, the city
is expected to use only an ordinary and
reasonable amount of diligence and
celebrity, even less being required of ii
than from an individual.
"A city is not an insurer of the
safety of its public streets, but its
whole duty is discharged if it and its
agents exercise reasonable care to
keep the streets safe for ordinary use.
Even though city did leave pipe
unclosed, yet if there was an inter,
vene and Independent agency such as
this torrent of rain that caused the
sinkage around the manhole without
which independent agency sinkage
would not have occurred, then the
| ~. 4b1 IN of fbf
sinkage, and the city is not liable.
elf the sinkage or cavity in that
part of the street WAS at the time sc
guarded by barriers and danger lights
that they wore visible to persons
travelling along the streets, and by
looking the party might have seer
them, then he was guilty of contribu
tory negligence If he drove into tht
hole so marked and he cannot recover
"Evcn though the defendant were
ever SO guilty of negligence, yet i
the plaintiff himself was guilty o.
negigence, or want of ordinary care
however slight which contributed tC
the happening of the injury then ht
cannot recover.
"In order TO prove negligence tC
establish liability it is absolutel,
, necessary to produce strong evidence
to the effect that either actual or con
, structivo notice was given to the city
and that constructive notice SHOULD
not be applied where the defect hal
, been very short continuance al
, municipal corporations are held onl.
, to reasonable care and diligence il
search for highway defects and par
, ticularly where they are concealed b!
/ darkness.
J "The burden of the proof is upol
the plaintiff to convince the Jury o
the liability of the defendant for th
! alleged injury beyond reasonable
doubt or at least by preponderanc
of evidence and if such doubt exist
/ in the minds of the jurors their yer
dict should be for the defendant. "
r After this presentation of the law
Mr.. Sanborn began his argument. III
t asked the jury for verdict of 81, 0Ot
. for the plaintiff. He spoke about hal
. an hour and was followed by Ilorac
t Greeley Knowles, associate counsel fol
. the city, who spoke about an hour AM
y half.
q Upon application of Lewis G. Van
Q degrift of counsel for the plaintiff, tn
t time for filing pleas in the replevi
8 case of the H. +. kerwin Manufac
turing Co. VS.. Joseph 7. Truxton
s sheriff of Sussex county, was con
, tinued until Saturday, January 18th
a The action is to recover S6, 00O wort
o of cans. part of the assets OF Morrow
i, Coulbourn of Seaford. The compan
3 is represented bv John NJ. Richardso
d and Bradford, Vandegrift g. Byrne
0 Charles Richards, Charles NJ. Guile
y and William Nj. Royce represer
n Sharif Truvt,,p