Year: 1874




dent, could not see what he struck, utter
ly reckless Of the lives not only Of these
who might be in their way, but Of those
whom he carried, and yet they never blew
whistle but once For years they had
signalled with their whistles; for years
they had never failed to have head. light.
These people relied on these; and the
presence Of that lantern which they mis-
took for light in Cousin Dars house.
was this night to these unfortunate people
as the false wreckers' light placed upon
the shore, which lures sailors to destruc-
ton. If the Court settles this doctrine as
the defendants wish, it should not be now
when this company comes into the Court
with hands smeared with negligence, but
with clean hands


At II So Mr.. Bird concluded.


Mr. Gordon for the railroad company
commenced his argument. He started by
referring to the relations borne by Mr.. Ly-
nam to this railroad company responsible
for the safe delivery, absolutely of freight
and nearly SO Of passengers and asked that
the Court should award them protection
commensurate to their responsibilities
The question in this case is divided iuto


First. Have the defendants been gull
ty of any culpable negligence for which
they are liable?


Second. Prcsuming negligence (Which
we dc not admiD does the fact that the
plaintiff did not stop the carriage and make
vigilant use of their senses on this occasion
constitute culy evidence of negligence for
the jury, or does it constitute negligence
per Sc for the Court? The counsel pro-
cceded to argue from the evidence that the
train when they arrived near the crossing
must have been in such close proximity
that the NEST ordinary persons using eau
ton could not have failed to hear it. At
this point Of the argument the Court ad-
journed until 3 p. nj.


AFTERNOON SESSION.


Mr.. Gordon resumed his argument He
proceeded to discuss the failure of the
plaintiff to look for danger at the proper
point, and claimed difference in law be-
tween mere look and a vigilance in look :
ing, which here was not exercised. The
same may be said of the hearing God
has given US these senses to protect us,
and the law in eases like this is to exer-
else them fully. This lesson should be
taught, not by jury, but from tie very
ceurt itself, not only for the sake of peo-
pie like the plaintiff, but for the sake of
the thousands of people who travel upon
the railroads Of this country. At trot
without a pause, with mutfled ears, and the
wheels rolling over the hard, frozen road
they rushed to what was nearly death
Had they stopped one moment, the boom
and rumbling of that train would have
struck upon their cars and they would
have been safe. If our proposition, then,
is law, there could be no clearer case in
psipt of facts advanced. The counsel de-
nied that even had there been ne contrib
utory negligence, still the facts of this
case do not prove any culpablity. These
people testify that for twenty years this
company has never failed in carrying a
headlight. Tried by the test of human
thought can it be believed that one in
stance of failure devotes negligence? 1t
is bat fair to this company to infer no neg
ligence. Again, the very Maryland case
relied upon by the counsel for plaintiff
plo es that the failure of this lady to stop
and listen is negligence per Sc.


The counsel here read and commented
on this case at some length, and conclud-
ed at 4 p. m by expressing his utmost
confidence that the Court weuld treat this
grave question in the manner it deserved


The opinion of the Court was delivered
by Judge Gilpin substantially as follows
1t is with great reluctance always that
the Court interferes to prevent case from
going to the jury on its merits. We pre-
fer to have the jury try the ease and to
charge the jury as to their proper duty
1t is our duty, however, when called upon
to say whether case when presented by
a plaintiff, in the absence Of proof by o
defendant, is prima faeie such as to enti-
tie to verdict where case made oui
by plaintiff is such that in law he could mol
recover, it is the duty Of the Court, where
a non suit is asked to award one and hold
the case from the jury. We do not pro.
pose to 60 into very elaborate review Of
the testimony, and shall therefore be very
brief in stating the principles. This is no,
the case of plaintiff who is passenger
who sustained an injury. In the case O.
injury to passenger, the defendant mus
show use of the utmost diligence and eau
tion to prevent accident. An extra bur
den is thrown ON the defendant in tha
case and think it is proper responsible
ity. The rule with regard to travellers i,
very different They stand on equal term.
and are both bound to use ordinary eau
tion-the railroad to no greater exten
than the traveller Both are put upon q
dilgent use of their faculties. In thi
case, according to the statement of two o
the parties, Mrs. Lynum with them lef
Wilmington about p. m. to 60 to J. R
Lynam's. They did not travel rapidly, i
was dark, the horse smooth shod, TIL
roads frozen, and they went on in SLOW
trot. and at o'clock arrived at the juno
tion Of the Newport pike with the lane
When they had passed down two thirds o
the lane, two curtains down and one up OIL
each side, and the front seat pushed back
Al ~ q