The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1898-05-07

WHICH HAS TWICE BEEN TRIED
HERE AND THEY DECIDED TO LET
TT GO TO The HIGHER TRIBUNAL
AT ONCE-OTnER CASES THAT
WE'RE HEARD.
The important case of Thomas O'Mal-
ley against the Scranton Railway COM
pany was argued yesterday before the
three judges. Major Everett Warren
spoke for the defendant and Attorney
Joseph OBrcn for the plaintiff. When
Major Warren finished his argument
Judge Archibald announced that for his
part he would discharge the rule for
new trial and let the case go to the
Supreme court, as it was bound to go
there anyway. Judge Gunster was sat
isfed to discharge the rule because he
believed the verdict should stand.
1t was one of the most important
damage suits tried i'm these courts.
Thomas ]. OMalley, who, by the way
is the father of John Malta. the gunner
on the Nashville who fired the first
shot in the Spanish American war, re-
covered a verdict of $4,550 against the
street car company for serious injury
sustained a few years ago on North
Washington avenue, near the Subur-
ban Electric Light plant.
CAUSE OF ACCIDENT.
Mr.. O'Mallcy was in the employ of
the Barber Asphalt company and was
the day of the accident engaged at
sprnkling sand over the newly-laid
asphalt close to the street car tracks.
1t was on that part of the pave that
the street car company had agreed to
keep in repair; namely, the space be-
tween the rails and twelve inches on
the outside of each rail. While thus
engaged a street car came along and
ran him down. He was seriously hurt
He was permanently disabled from ac-
tive work.
Suit was brought against the com
pany for damages, and upon the first
trial of the case Judge Archibald grant
ed non-suit on the ground of con-
tributory negligence. Subsequently the
court granted a new trial, and the sec
Ond time it came up before Judge Gum
ster. The judge was strongly of the
opinion that it was case to go to the
jury, and the jury returned verdict
of S4,550. Yesterdays argument was to
set that verdict aside
Major Warren argued that O'Malley
was guilty of contributory negligence
/ and also that he could not recover
| damages under the Act of 1868, which
makes any person engaged upon or
| about any railroad or railroad station,
or siding, equal to an employe of the
! railroad with respect to the liability OF
! the company for damages.
CANNOT RECOVER.
An employe of railroad cannot re-
| cover damages if he he injured in the
| discharge of his duty, if the injury re-
| suits from the negligence of the COM
| pany unless there was no negligence
! on the part Of the injured. The law
! makes it difficult for an emplOye of a
! railroad to recover because it imposes
upon him the necessity of exercising
care and caution, else he is guilty OF
/ contributOry negligence.
Judge Archibald thought OMalley
! was guilty OF cOntributory negligence
! because it was broad daylight and his
| duties were rot at all arduOUs, that
by exercising mere ordinary precau
tior he would not have been hurt
Judge Archibald did not believe that
the act Of 1865 cited by Major Warrer
applied To street railways.
Judge Gunstor said he thought tho
act Of 1865 did apply to street railways
as well as steam roads, but he thought
that the O'Nalley case was one for tn,
jury alone and not the court to deter
mine whether O'Malley was guilty O
any negligence. The jury found h,
wasn't and that made the company
liable for damages. Judge Gunste
thinks . Mallcy was working, not nea
the rails or between the rails, but upol
a public highway of the city of Scran
ton. The paving was not a part o
the running of cars, even though tn
street car company had agreed to paw
; in pursuance of the right to occupy tn
street,
RULE DISCHARGED.
As Mr.. O'Brien was about to begil
his argument Judge Archibald said tn
court here is hopelessly divided on tn
case, and he for his part would dis
charge the rule for a new trial. Judg
Gunster explained his view as alread
stated and nodded his head in assen
To 1isCharging the rule. Nov let i
go 70 the supreme court" said Judg
Archibald.
The case of the commonwealth
against George Clark was continue
until next term. This is where tn
foreman of the steam fitting depart
mcnt of Hunt & Connel, is indicted 70
discharging men for belonging to tn
Steam Filters union. Mr. Scragg wa
ready TO argue the unconsttutiOnalit
of the act, but District Attorney Jone
, asked for a continuance as he ha
been so busy i'm criminal court,
Only one case on the quarter session
r list was reached. 1t was IN the mat
, ter Of road in Fell township Alton
ney George d. Taylor represented tn
, petitioners, and Attorney w. ]. Han
, | the eNCeptdnts The matter of a roa
! I'm Fen mas bObbed up i'm court kr Sc;
eTal terms. 1t Is alleged that SOmchOd