The Wilmington daily Republican. (Wilmington, Del.) 1890-1902, 1896-12-14
A LEGAL BATTLE
Mrs. Ewlng's Damage Case Has
Few Precedents. (
y.y.svl7 OUT o. TIE lIIss.
This is What the Counsel for the
City Had Expected, But the
Court Says No.

| SOuIt DAYS NO.
| The Ewing damage suit has developed
into bitter legal contest which has been
unequalled In Superior Court for many
| years. Ever since the case was opened the
defence has been attempting to non-suit
| the action OF the plaintiff and that attempt
| eliminated this morning disastrously Tr
| City Solicitor Hartman, ex-City Solicitors
! George A. Elliott and Horace Greeley
| Knowles, when the former made his fipa.E
assail against the defendants amended
narr. fled since Friday, and asked for adj
| ditional time, conterdng the allegas
| ton that the city had wilfully and know
| ingly allowed the gutter plate on Ninth
| street between Orange ard Shipley streets
| to remain in q dangerous condition pres
| vious to October is, 1894, the date Of the
| accident OIL which the action Is based, waH
| a new issue In the case and one which they
| were not prepared to meet Therefore they
| asked that the case be continued until the
| next term in ordsr that they might meet
| the allegation In the amended narr and the
costs already incurred be paid by the plain
| tiff.
William s. Hilles had been engaged BY
| Liburne Chandler since Friday and he ems
| lticu illtO d NibDlOuo Ill SuiuGHI dSuiisL dhy
| such action. His examination of the origi-
| nal proceedings had disclosed that the de-
| fence had been notified that they were to
| meet a question of negligence, therefore he
| could not see where the issue had been
| changed. He admitted that in proper
| peadings q special narr embracing the al
| legation should have been set out but ben
cause it had not was not sufficient ground
10
nicality, but not such one as the der
fence hoped would necossitate continue
ancc. Other arguments were strongly pre-
sentcd and backed up ably by authorities
and finally the court ordered the case to
proceed. This was the strongest point
which the defence had prepared in it's fight
for a non-suit and it having failed, counsel
rosorted to another move. 1t was the pre-
sensation of all affidavit for rule on the
plaintiffs for security for cost, they claim
ing Mr.. and Mrs. Ewing to be non-rest-
dents.
This point was also ably met by Mr.
Hilles. He commended that the plaintiffs
were not non-residents, and even If they
were the defendants motion came too late,
1t should have been presented before tho
hearing was gone into, therefore the right
had been waived. The court sided with
Mr.. lliles and the motion again fell.
This was all the defence offered. The
court saw that 1t was the object Of the de-
fence to non-suit the cause and as sort Of
time saving suggestion to the ctys
counsel Informed them that the case could
rot be non-suited and ordered the exami..
ration Of DR.. James II. Morgan, who had I.
appeared as an X-ray specialist in the
case, resumed 81
HUMAN BONES IN COURT. -
After the doctor had been on the stand I,
minute he produced the skeleton of huSi
man leg from tho knee down. Mr. Harry
mon had second limb in his possessiotiE
By them both the doctor illustrated WHAT
the X-ray photograph Of Mrs. Ewins'si
ankle disclosed. Mr.. Harmon first delvedi
into the pathological and hygep.cal feaf
lures of the examination, then turned his
questions to the actual condition Of the
limb as shown by the negative The docSs
tor explained tho Injury due to oscitis,
which was disease of the bone and with
the skeleton illustrated which bones had
become dead in Mrs. Ewing's foot. The
remainder Of the direct and cross Xar1ka
nations was somewhat lengthy, but wheE
narrowed down only bore on the cause Of
oscitis ard Its effect. The doctor prove2A
valuable witness TO the plaintiffs case. q
HALL SAYS 1T WAS DANGEROUS. y
Then William J. Hall was recalled. Ha
is the witness who was under examinations
last Friday and whose examination resultA
cd In the amending of the narr which has
been referred to. The question put to Mr..
Hall on Friday was regarding the condiA
ton Of the gutter previous to the date Of
the accident. 1t will be remembered that
the witness was not allowed to answer, but
as the pleadings in the case had
been so amended to admit tho
testimony, Mr.. Chandler had the
stenographcr repeat the question to
part of the defence they having been ruled
against in tho matter by the court, and the
witness answered that the gutter-plate was
in dangerous condition. This was accept
cd rs the most valuable testimony yet prs
scented in tho case We're it not the city
would not have made such a strong fight
against the admissablity Of testimony re-
Earding the condition Of the gutter plate
previous to the night Mrs. Ewing received
her injury. The witness had used the
street as often as twice a day, and upon
one occasion stepped into the place and
had the heel torn off his boot. One of the
plates was broken near the centre of the
pavement and the space was widened by
separation Of the plates.
On cross-cxamination Mr.. Hall told Mr..
Knowles that the plate was in the same
condition to-day that 1t was previous to
Mrs. Ewing's injury He could not say that
it was separated at present. He had fire.
quently noticed the space between the ends
pft to nj nt and had he'd ihn platns
gether.
PLATE WAS BROKEN.
Franklin ]. Taylor lived at No. 1903 West
Ninth street during 1893 and '9i, and was
familiar with the gutter. He passed it
frequently and the condition then as COM
pared with that of to-day was the same ex-
ccptine that the bricks about it are now
raised. Mr. Elliott thought Mr.. Hilles
should confne his questions to the condi-
ton Of the gutter previous to the date of
Mrs Ewngs accident. and Mr.. IIlles
modified his question without the courts
order. Then the witness said the plates
were separated The one nearest the curb
was broken, and as tho plates were not
fastened, stepping on them naturally sepa-
rated them He had seen people trip In
the hole and had pushed the plates together
While the cross-examination was under
way Mr. Hles told Mr. Knowles that he
had stumbled because of the hole. He was
positive that the spot was defective in Oc-
tober, 1894, but could not say that tho
plates were open.
James a. Saunders, who has lived at No.
1l3 West Ninth street for the past Ave
years, testified that tho gutter plates had
been broken for a long time. The gutter
is between his property and that of Deputy
Coroner James r. Chandler. 1t appears
that since the accident the pavement has
been repaired, but the plates lave never
been replaced. He differed from the pre-
yious witness as to where the break in THO
plate was by saying it was near the curt
and not in the centre Of the pavement The
witness had not seen any one caught in
the hole.