The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1897-01-14

H.
HON CHARLES e. RICE,
President Judge of the Superior Court of
Pennsylvania.
at 1913 Capouse avenue, where he re-
sides with the members OF his family.
A short distance away are the storage
tanks of the Atlantic Refining COM
pany. Mr.. Gavigan alleged that the
smell from the refining company's
plant and the percolating of oil through
the ground had greatly damaged his
property and a jury in common pleas
court awarded him a verdict of $47OS4.
From this verdict the defendant ap-
pealed.
Hon. w. w. Watson appeared for the
Refining company and argued that on
the trial of the case the plaintiff did
not produce any evidence that warrant
ed the court below in submitting the
case to the jury. He maintained that
it erred in so doing. He said it was
not denied that there is to some eX
tent the smell of refined kerosene oil
about the appellants premises, but the
odor is not offensive or injurious Mr..
Watson then carefully went over all
the important decisions bearing upon
the case and made a strong argument
to show that the plaintiff is not liable
in an action for damages. In conclud-
ing, be said
Believing as we do that the final de-
cision of this case is of vast Importance
to the business interests of this city
as we'll as other cities i'm the common
wealth, we have deemed it proper to
make our argument of considerable
length"
ARGUMENT OF MR.. BURNS.
Attorney l. H. Burns argued the case
| from Mr. Gavgan's point of view. He
| told the court that the waste oil and
refuse from the refining company's
| plant had saturated the soil about the
| appellee's house and has seriously af-
| fected the health and comfort of the
| appellee and his family.
THAT the plaintiff suffered particu-
lar injury is plain to be SEEN" contend
ed Mr.. Burns. This is not an action
| for the suppression or abatement of
nuisance, but simply for the damage
sustained by the plaintiff. Counsel for
I appellant excuses the length of the ar
gument on account of the vast i'm
portance to the business interests of
this city as we'll as other cities of the
commonwealth This speaks we'll FOR
the patriotism and philanthropy of the
learned counsel, but we do not under
| stand that these vast interests have
| exhibited any undue alarm over the
| probability that the Atlantic Refining
| company may have to pay $47O.S4, or
| that they have taken any steps to get
| themselves upon the record or to en-
ploy counsel to defend their rights and
| property. When they do it will be
time enough for this court to consider
them. Sufficient unto the day is the
| evil thereof He that gOeth out after
trouble is not wise
The case of j. NJ. Tompkins against
the Scranton Traction company, appel
liant, from the common pleas of this
county, was argued at some length.
on Jan. II, 1894, Mr.. Tompkns and his
son We're driving to their home in
Green Ridge and in endeaVoring to
cross the Capouse avenue car track,
near I.arch street, he was run into by
a trolley car. The wagon was wrecked
and Tompkins and son thrown out and
injured. The elder Tompkins brought
suit to recover damages for injuries he
sustained and was awarded 5000 by the
jury. From this verdict an appeal was
taken. When the case was tried in the
county courts the trial judge was asked
to say that Tomptins had been guilty
OF contributory negligence, but ne de-
clined TO do so.
QUESTION AT ISSUE,
Attorney Horace e. Hand made the
argument on behalf of the Traction
company, and maintained that the
question to be decided was whether
when a person drives on track of a
street railway and is Immediately
} struck by car he is guilty of such
contributory negligence as will pre-.
vent a recovery. He held that the law
on the point is well settled and is as
follows: 1T is the duty of traveller
about to drive across a street railway
! to look and listen for an approaching
car, and to stop, if necessary, at the
J edge of the track, and his neglect tC
do so is negligence per Sc" In con
! Guiding Mr. Hand said: I'VE respect
fully submit that the verdict wa!
! based upon insufficient testimony which
was wrongfully submitted to the jury
and the judgment should be reversed,
Attorney S. b. Price, who presented
the argument on the part of the plain
tiff Tompkins, asked that the judgmen
of the lower court be affirmed for tn,
reason that the car was going at
I rate of speed that was not safe at tn
! time of the accident and that the ca
Gid not have a proper headlight 81
that its approach might be readily dis
} cerned.
Another case argued yesterday wa
: C. C. Steere against ID. X. Oakley, ap
pellant, from the common pleas of thi