The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1900-11-14
EVIDENCE IS ALL IN
Attorneys Will Argue Mar
shall Suit This Morning.
INSTRUCTIONS FOR JURY
Are Prepared and VIII be
Presented After Arguments.


The hearing Of the evidences in the sui
Of John c. Marshall, as administrator fol
the estate Of Maggie Marshall deceased
against the Rock Island railroad was
concluded at 1 o'clock yesterday and the
jury was then dismissed until this morn
Ing to give the court an opportunity to
prepare its instructions which viii be
presented to the jury today. The case
viii be argued this morning BY the at
torneys. after which it viii 90 to the
jury. Both Houston and Brooks, as at
torneys for the plaintiff and Vermnion
and Evans as attorneys for the railroad
company had prepared special insruc-
tions which were given TO the court for
consideration in connection with what
ever Judge Dale may have 10 state in the
matter when he charges the jury just
before their elaboration. Eleven wit
nesses for the defendant company were
introduced at the trial yesterday among
the number being the conductor. engl-
heer and fireman Of the train which col
hded with the wagon containing the
Marshalls.
The first witness to be examined was
John KnOblach. city assessor. He testi-
fed that at the time Of the accident he
was standing near the depot and that he
distinctly heard the whistle Of the en-
gineer and the ringing of the bell. He
also stated that as far as re could Judge
the train was going at six to seven
mile an bOl1r rate of speed
George w. WyIie. Kansas State Fish
warden. also an eye witness Of the acct
dent stated that the train was going at
ehe rate Of six or seven miles an hour
and that he also heard the. whistle and
bell
The testimony Of Dr. G. i Piper and
that of George sesuunck, colored
porter at the Carey hotel was in sub
stance the same as the two preceding
witnesses.
Mrs. Mills at the time Of the accident
was driving east on Douglas avenue and
was approaching the track when she
heard the whistle and bell Of the engine
and then stopped, not risling to cross
before the train had passed.
J. H. HawIey, a Frisco engineer, was
at the station when the accident occur
red, heard both the bell and the whistle
and said that the train was coming at
an ordinary rate Of about seven to eight
miles an hour. He stated tina tsufic-
tent warning was given Of the approach
OF the train.
Mr. Walker, county commissioner OF
Barber county, was also an eye witness
IS was Noah Bolanger, a laborer, both
of whom testified that the train was
coming at about seven OF eight miles an
hour and that the bell and whistle could
be distinctly heard. John Kunz. a con
tractor. testified in effect to the same
thing. Conductor Boyle, who was in
charge Of the train said that they were
making the ordinary run toward ire sta
tion on the night Of the accident and
that he heard both the bell and whistle
The engineer Of the train, Chris Dunn,
stated that he was making six miles an
hour and that If he had gone at a faster
rate OF speed the train could not have
stopped where 1t did. since it would have
been carried on to a greater distance by
Its own momentum. "At First street"
he said, u made the usual surface ap-
plicsUon Of the air brakes while the sig
7 did not notice the wagon until I was
near Douglas avenue and then I immed-
ately applied the emergency brake. But
It was impossible to bring the train to
an immediate standstuL The engine ran
into the wagon despite All could do 10
avert the catastrophy."
j. j Burke, fireman on the same train,
stated that they were making about six
or seven miles an hour. and that the
usual signal given when the engine SIS
approaching the station was sounded by
ringing the bell and blowing the whistle
and that nothing that could have been
done under the circumstances was omit
ted. This concluded the hearing Of the
evidence.
The defendants attorneys hereupon FL +
ed the usual formal demurrer to the
Testimony which was overruled by the
court Both sides theu submitted their
special Instructions which were contain (
ed on some fifteen type written pages Of +
legal cap after which the jury was dis
missed until DO o'clock this morning
A special point was made upon the
evidence OF some of the witnesses who +
testified that the driver Of the wagon.
Albert Wilson. had been signaled to turn
his team back and not to attempt to
cross the track at that time 1t was
testified to that he looked out from the
wagon in the direction Of the approaching +
train and that he then whipped Up his
horses and attempte dto cross the track .
but did not set clear.
one Of the points which the defense (
Win insist upon and which IS embodied IN
the special instructions is that the EN-
ployes Of a railroad company have
right to assume that people viii grant 4
precedence to a railroad and that they
must be aware Of the fact that there Is
at 81 times more CT less danger when (
crossing the tracks and that consequent I
~ they are supposed TO be on their
guard. The defense win PROBABLY also
contend that tho danger gates were be-
ing operated from o'clock in the morn
ing uatu the same hour az night and
that they were not bound to operate
them Yer longer period.
The pla.nun has drafted special in
structions on the measure OF damages
involved In case the jury hnds in lis
favor and also upon the question of
liability
During the trial Yesterday morning the
question as TO whether John Marshall.
he being che husband Of the deceased.
could testify in the case Whon he was
called upon to take the stand the at
tcrnevs for the defense objected. but
they were not sustained by the court ana
Marshall was permitted 20 give evi5eac4
% the fact that bath lie and his wife