The morning news. [volume] (Savannah, Ga.) 1887-1900, 1899-08-08
.CITYS JUDGES DISAGREE.
MOTION ron NoN-sUIT N sTROBHAR
CASE ONERRULED.

In IA Former Trial of the Case. in the
city Court, the same Motion with
Practically the Same Evidence Had
Hecn Sustaiped by Judge Norwood.
All of Yesterday Consumed in the
Introduction of Evidence and the
Argument of the Motion for Nom
suit-Mrs. Strobhar Wants 100000
Damages for the killing of Her
Husband by the Railway.
The suit of Mrs. Anne E. Strobhar
against the Savannah, Florida and West
ern Railway for $1,000 damages for the
killing of her husband Benjamin T. Stro-
bhar. by a push engine, in November,
1897, was on trial in the Superior Court
yesterday. A motion for non-suit was
oyerruled by Judge Fanigant.
As was stated in the Morning News.
this is the second tria7 or the case. 1t
was brought first in the CITY Court, where
after the Introduction of the plaintfrs
evidence, the attorney for the company.
made a motion for non-suit. After
heated argument this was granted by
Judge Norwood and the case dismissed in
this manner. 1t was then brought in the
Superior Court
This time but one witness has been in
troduced for the plaintiff, when the coun-
sci for Mrs SrObhar rested his case. This
witness was w. f. Behnken, who testi-
fed that he was familiar with the portion
of the tracks of the company, upon
which Strobhar had met his death, by
pedestrians, and that this use was constant
and by large numbers of persons who lived
in that section of the town. The facts that
the plaintiffs husband had been killed by
the engine belonging to the company and
that she was his widow had been admitted
in the answer Of the defendant and upon
the showing made by the evidence of the
one witness introduced and the admissions
of the company, the attorney commended
that he had made out a prma facie case
His contention was strengthened by the
provision of law, that when the killing or
injury Of one by a railway company Is
atlrmatiVely shown, the burden of proof
is cast upon the company to show that the
accident occurred without fault or negll-
gence on the part of its agents, or had been
accompanied by such contributory negll-
gence on the part of the person injured or
killed as 10 bar the right of recovery OF
himself or his representatives..
Al this point the company's attorney In
troduced his motion for a non-suit Such
the defendant that, taking as true the tes-
tmony of the plaintiffs witnesses, there
has been made out no cause of action
upon which a recovery can be had The
jury was dismissed during the argument
of the motion for the non-suit, which con-
summed most of the morning session of the
court and large part of the time in the
afternoon.
The motion for the non-suit was based
upon substantially the same evidence or
want of evidence that had formed its basis
in the former trial in the City Court
While larger number of witnesses for
the plaintiff had been introduced in the
former trial, more had been admitted by
the defendant in the present, so that the
proved and admitted facts. for the purpose
of the argument, were almost absolutely
the same. The same, or practically the
same, points, were made by counsel and
the same authorities quoted. There was
scarce a material difference except in the
matter of result Judge Faligants de-
clslon being DRAMATICALLY opposed 10 that
of Judge Norwood
After the refusal of the grant of a non
suit the remainder of the session was de-
voted to the examination of witnesses for
the defendant Two swftchmen in the
tower OF the company on Bolton street
were introduced to show that Strobhar had
been careless and negligent in his man
come upon the tracks, and that had he
exercised the reasonable care and pru-
dence that the law requires ana that
should have characterized his actions it
would have been impossible for the acct
dent to have occurred
These Witnesses testified that had Strob-
har walked upon the side of the tracks
where there was path used by pedes-
trians, or between the tracks, both of
which courses were perfectly practicable.
that he could not have been struck by the
engine and killed. They said that the
scene of the accident was a point of
great danger, that cars and trains were
constantly being drilled along this part
of the road and that IL required the ex-
ercise of an especial degree of prudence
TO avoid deadly peril
The evidence for the defendant had not
been concluded when court adjourned az
O'Clock and will be resumed at 10 O clock
this morning. Ii is expected that the
larger part of the day viii be consumed in
the Introduction of witnesses for the COM
pany the plaintiffs evidence in rebuttal.
the argument of counsel and the charge
of the court, so that the case will not go
to the jury much, if any, before night.