The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1899-01-12

In long article last week the Sen
HRel endeavors to make it appear
that Judge Herring committed a
great wrong i'll directing verdict
for the defendant in the suit of Will
liam Case and wife against the d.
l.. ,& w. X. r. Co. The opinion
of the court published last week in
THE COLUMBIAN gives his reasons
fully and clearly for his action. If
he is wrong, the Supreme Court will
correct the error and send the case
back for a new trial. If he is right,
that court will affirm it, and that
will end the matter.
1t is common practice for the
courts to grant non-suits, and to
direct verdicts for the defendants,
when, in their judgment, the plain
tiff fails to make out a case OF negli-
gence on the part of the defendant,
or the plaintiffs testimony itself
discloses a state of facts which, as
matter of law, constitutes contribut-
ory negligence on the part Of the
plaintiff. Judge Herring held that
by the act of Mrs. Case in volun
tarily leaving the train at an TN
usual point, she took her own risk,
and was guilty of contributory neg
ligence, and could not recover dam
ages, and therefore he took the case
from the jury and directed verdict
for the defendant.
We do not propose to discuss the
merits of this case, and would not
have mentioned it again, but for the
| publication of the article above allud-
ed to, which was calculated to pre-
judice the public mind not only
against the court, but also against
the defendant in case of another
trial; but we shall refer to another
case to show that the action of the
court was not unusual.
Some years ago Albert Z. Cadow
brought suit against the d. l.. &
w. R. R. Co., for damages, for in
juries received by himself from a
fall while crossing the tracks at
East street i'll this town. His leg
was broken, and he alleged negli-
gence on the part Of the defendant
III not having planking all the way
across the street, between the rails.
The details of the suit are not ma,
terial. Suffice it to say that it was
as close a case, if not closer, than
the present one. The suit was tried
before arbitrators, who gave the
plaintiff an award of $4,000. The
company appealed, and it was tried
in court, before Judge Elwell,
who at the end of the plain
tiff's evidence and without hear
ing the defendants side, grant
ed a non-suit, OH the ground
that Cadow could not get damages,
because he was guilty of contribu-
tory negligence. Cadow's counsel
moved to take off the non-suit, and
after argument, the Court granted
a new trial, on the ground that he
erred in granting the non-suit. Ow-
ing to Judge Elwell's illness. Judge
Dreher presided at the second trial,
and he refuse d to take the case from
the jury, and they rendered YER
dict of $4,000 for the plaintiff. In
refusing a new trial Judge Dreher
said in his opinion that he would
probably haze taken the case from
tie jury, if Judge Elwell had not
struck off the non-suit and granted
the second trial. The defendants
took tie case to the Supreme Court
and there it was reversed, and de-
cided in favor of the railroad, show.
ing that Judge Elwell was right in
the first place, when he took the
case from the jury.
The decision Of the Supreme
Court will determine whether Judge
Herring was right or wrong in the
present case, should the matter bt
carried to that tribunal.