The morning news. [volume] (Savannah, Ga.) 1887-1900, 1899-03-01
READ CASE OUT OF COURT.
MOTION FOR NONsUIT GRANTED by
JUDGE NORWOOD.


to Lack of Ordinary Care by Plain
tiffs-The- Decision Much Discussed
by AttOrneys-A Motion for "a Re-
hearing Filed.
The motion for a nonsuit by the attor-
neys of the City and Suburban Railway,
in The combined cases of Dr.eJ. B.. Read
and his driver, Edward S. Lloyd, for $780,,
600 and $500 damages respectively, for in
juries received by coming in contact with
fallen trolley wire, was granted by Judge
Norwood in the City Court yesterday. 1t
was somewhat of surprise to the attor-
neys for the plaintiffs.
The action of Judge Norwood in throw
ing the case out of court on the motion for
a non-suit was the talk of the local bar,
and was discussed with much interest
Inasmuch as DR.. Read had obtained a yer
dict for the full amount sued for, 5000, al
the former trial of the case, the natural
presumption on the part of those having
no personal interest in the case, was that
DR.. Read, having increased his claim to
100000 doubtless had very strong case
against the railway company, and might
reasonably expect to obtain. verdict
awarding damages in some amount.
Motions for uonsuts are frequently
made by attorneys but 1t is rarely that
the motions are granted by the courts in
cases of Such Importance. Owing to the
Importance OF the case, in so far as the
amount sued for is concerned, and the
prominence. of the;leading plaintiff, Or. j.
B. Read, there is much interest in the de-
cision. D a 81
Judge Norwood had listened TO extend
ed argument by the attorneys on the OPP
posing sides and had taken the authorities
cited by them under consideration. When
he appeared in court he had his decision
already prepared and read it from the
bench as follows:a
1.-The view Istake of the law of this case
eliminates DR. Reads action before and at
the time of the injury. The real question
to be determined is whether Lloyd, the
driver, by ordinary care, could have avoid
ed the consequences to himself and DIR.
Read Dr. Read had put his safety in
the care of the driver. He had folded his
arms and resigned himself to meditation.
The duty of exercising all the diligence
required by the law under the circum-
stances was committed to the driver. Dr.
Read was in the position of a passenger,
so far as the management of the team
was involved. And the negligence of the
driver, or servant if any is imputable to
the master. o.
'Dr. Reads right to recover, in contem-
plation of Law, is to be determined by the
same rule of liability had his servant run
over a person in the street. The negligence
of the servant in either case would be his
negligence. This is on the maxim 'qui
facit per alum facit per se.'
THE facts are that Lloyd was driving
slowly on Congress street; that the horses
were somewhat jaded by a summer days
work; that they approached Whitaker
street in1a slow gait, or a dog trot;' that
the trolley wire was hanging over the
railway track longitudinaliy and at right
angles 10 the line Of the drivers course;
that the wire hung about five feet from
the ground and was about the diameter
of mans little finger; that it hung on
line of elevation about that of the horses
heads; that neither DR.. Read nor Lloyd
saw the wire before it was almost touch
ing them; that had it been seen when the
horses were a few feet-not exceeding tt n
from it they could have been DETECTED
right or left and have. escaped the wire.
ION these facts the sole question is, did
Lloyd use Ordinary care? There is one
fact that bears strongly on this question.
1t is this: Although Dr. Read was not on
watch, was not the driver; had his mind
absorbed by other. matters than the danger
of the safety of his situation, yet he dis
covered the danger before the driver did;
that is, Dr. Read saw the wire when it
was on the horses necks, while the driver
did not see it until it was within foot of
his face?
1.-The driver says he could have seen the
trolley wire 100 yards If his attention had
been directed to 1t. OF course, when near.
Whitaker street, he could have seen the
wire And the fact that DR.. Read, who
was noto looking out for danger, saw the
wire before the driver saw it, lis very
strong evidence that the driver was neg
lecting his delegated duty to guard against
visible danger or danger that ordinary
care would have made visible. If he could
see the wire from Barnard street, he could
not have failed TO see 1t when within ten
or twenty or thirty feet from 1t had he
been looking in the direction of his horses.
could the driver have seen the wire
by using ordinary care? This question
could not discuss were this charge to a
Jury. But the motion for a non-suit puts
on me the duty TO decide what is ordinary
care as applied to the undisputed facts.
I Ordinary care lis a relative term. II
means one thing under one state of af-
fairs and has a different Interpretation
un0er anOtleT STATE OIL facts.
care on a lonely road is not ordinary care
as applied to citys crowded streets; or
binary care in crossing a country public
road is not ordinary care in crossing a
steam railroad; ordinary care in crossing
a street over which street cars run is
different from ordinary care in crossing
a street that is not traversed by cars.
''The ordinary care that the driver was
bound to exercise in crossing Whitaker
street was that ordinary care that every
prudent man would use in driving across
a street railway. If wire, visible 100
yards, were stretched across a street or
a straight road. would a man use ordinary
care who would drive team against Il
and not see It before his team had touched
it7 If he would not then, with the wire
stretched along a street railway which
he had 70 cross, would he be exercising
ordinary care to drive across the railway
with no more caution than he would drive
where there waslno railway? the greater
the danger the more prudent must the
driver be- This is a rule of human con-
duct that IS universal. and by ii courts
and juries determine what is and what 4
not ordinary care.
ar .~..e go undar 49, go