The Wilmington daily Republican. (Wilmington, Del.) 1890-1902, 1897-06-03

500 damages. Chief Justice Lore smiled,
rs also did Judge Marvel. A dozen law
yers likewise expressed themselves, But
the jury was not affected One member
said at one time the body favored giving
the plaintiff verdict of $1,000, but why he
would not say. Other members of the
jury did not want to talk about their de-
clsloh. They were exhausted after their
unnecessary confinement and left tho
building hurriedly Everywhere through.
out tho city could be heard comments un-
favorable to the verdict. City Solicitor
Harman was, perhaps, the most incensed,
and no sooner had he heard 1t than he
gave notice of new trial, argument on
which will be heard next week That the
court will grant it's settled in the light of
THIS charge, SO strongly in favor of IL ver-
dict against Courtney's administrator:
1t is admitted on the part of the city
that the trench was being dug under the
city's control, in order to replace an under
ground culvert by new and enlarged one,
FOR tho purpose of carrying the water of
the north long race across the street. 1t Is
further admitted that the death of Court.
ncy resulted from falling into the trench
This brings the question in this case
within narrow limits. That is, whether
the death of Courtney resulted from the
culpable negligence of the city in guard.
LIB INV uiGHGH lHlS question Is TO De DO
tormlnod by you from the evidence in this
cause.
'"The principles of law governing the
case are vol settled. 1t is only necessary
for us to charge you briefly as to what they
are. The city has a right to make
such excavations therein, from time to
time, as in its judgment, may be neces.
sary and proper, to lay down cuverts
sewers and such other conduts as the
business, health, convenience and com.
fort Of the citizens may require. But in
SO doing the city must use all reasonable
precautlon to prevent mi uries to travellers
along the streets. The measure of care
In all cases must be proportional to the
dangerous character of the excavation.
The rule is, not that the city must do the
wisest and best thing possible, but that it
shall exercise such care and caution as n
reasonably prudent and careful man would
under like circumstances. You are not to
speculate upon what might have been
done, but to consider whether what actual.
~ was done was reasonably prudent and
careful under the circumstances.
This being the duty of tho city, every
person lawfully using tho street, has q
right to presume that that duty has been
performed, and that the street is in rea-
sonably good and passablu condition for
Use, and excavations therein properly
guarded both by day and by night.
While this is the duty of the city, and it
Is held to strict accountability. therefore,
1t must be borne in mind that the law i'm.
poses duty upon travellers and persons
using the street to use all their senses to
avoid danger. If the danger be open and
apparent, so that by the ordinary use of
the eye5lghtit may be seen by the traveller
and he recklossly PUSHES into it, the city ia
not liable. The jury would not be juSti-
lied in rendering verdict for the palm
tiff, where he courted and caused tho in
jury complained of by his own reckless
ness.
IF Courtney was racing with the driver
of the Friendship engine, or was driving
at an immodorate quit at the time of tho
accident, he was thereby violating ordi.
hhnces OF the city aud was guilty of negli-
gencc per Sc; and if his death resulted
from such racing or immodcratc gait the
pl&lhGln cannot recover. We cannot
charge you us requested by counsel for
plaintiff that tho driver of tho fire engine
is governed by other rules, than an 0rdi.
nary traveller on the highway, as to rae
ing or going Mt an mmoderate rate Undcr
the ordinance lie has tho right of say but
IN other subjects he is subject TO precisely
the same rules as Other travellers that is
IN driving On tho street he must use his
senses and take reasonable care and can.
tion to avoid danger and to prevent injury
to himself and to others
III Courtney saw the excavation. or by
the reasonable use of his cyc,ight could
nave seen 1t; or il he had knowledge Of its
existence, and yet recklessly drove on
until the engine fell into the trench, the
plaintiff cannot recover.
III Il Tor you TO say what causes were
operating at the exact time he was killed
1t matters not whether the city was nppli.
gent or not, your verdict should be for tho
defendant; us in that case the doctrine of
proXimntc and remote cause does not an.
ply INC law Will not measure tho degree
Of contributOry negligence.
in asCortaining whether the CITY wus
negligent or not, you arc not to take the
conduct OF tho Waterman alone but
should consider all the nets and Dcrcnu
ll"ns taken by 1t In guarding the trench
and preventing the Injury, and say alto
gether whether they were reasonably care.
iul and ctfnCtuul
Even II the Waterman gave no warning.
yet II you believe warning was given by !
persons about tho trench at the time, which |
II needed by Courtney would have prevents |
ID the accident, and that they were not |
needed by him and his death resulted |
,,herclrom, the plaintiff cannot recover, |
IL was the duty Of Courtney to heed warn
Ings of danger if heard by him by whom.
,oever given 1t was his duty to use any
he had OF the promises and 10
use his eyesight in every reasonable man.
her to avoid Injury or ho must take the
of his failure to do so.
The evidence of witnesses of euun)
2reduilty who sworo positively that thcy
saw the light ut the trench, by tho rules Of
4w, is entitled to more weight than that
u those who swear they did not see lights
)ut would not say positively lights were
lot there. This action is founded on neg.
lsence In order to recover, the plaintiff
must satisfy you by preponderanco OF
evidence that the death of Courtney re.
uiteu from negligence on the part of tho
''ty, If the city was not negligent, there
AN be no recovery. If death resulted from
aCing or going ut an immoderatc gait on
ne part OF Courtney, there can be no re-.
oNery. II death resulted from the negli.
'Cnoe OF Courtney alone or from his con.
negligence operating at the time
I the accident there can be no recovery.
SUIT II his death resulted from the ncgi.
ehco OF the city alone. rs tho proximate
AlISr your verdict should be for the