Anderson v. Mayor and Council of Wilmington
| Decision Date | 03 December 1907 |
| Citation | 70 A. 204,22 Del. 485 |
| Court | Delaware Superior Court |
| Parties | LEWIS ANDERSON v. THE MAYOR AND COUNCIL OF WILMINGTON |
Superior Court, New Castle County, November Term, 1907.
ACTION ON THE CASE (No. 21, May Term, 1906), to recover damages for personal injuries to plaintiff, and also for injuries to his horse, by reason of the alleged negligence of the defendant.
At the trial, when the first juror residing in the City of Wilmington was called, Hastings, for plaintiff, objected to said juror as incompetent to serve, on the ground that he was a citizen of Wilmington and therefore interested as a taxpayer in any verdict that might be rendered against the city.
The Court held that while jurors had been excused theretofore upon such a ground, yet that there was no good reason for following such a rule, and overruled the objection.
Dr Francis L. Springer, a practicing physician, testified on behalf of the plaintiff that he examined the plaintiff on January 12, 1906, and found him suffering with erysipelas but witness did not know what caused it. Witness was then asked by Mr. Hastings the following question: "Assuming that this man was thrown from a wagon on December 24th, 1905 and was injured about the nose; could erysipelas have been caused by the injury received on that date?"
Objected to by Mr. Satterthwaite, on the ground that the witness had not shown sufficient knowledge of the facts to answer such a hypothetical question.
Objection overruled, the witness answering that it probably could.
Dr. Daniel I. McColley, another practicing physician, testified on behalf of the plaintiff that a few days before the trial, after getting a history of the case, he had made a thorough examination of the plaintiff and found that he had a chronic inflammation of the right shoulder joint termed sine vitas; that an injury such as described in the testimony could have caused the condition he found and probably did cause it. The witness was then asked: "In your opinion, will this man's arm ever be in its normal condition again?"
Objected to by Mr. Satterthwaite, on the ground that there was no allegation in the narr. that the plaintiff was permanently injured. Mr. Hastings admitted that there was no such allegation in the narr.
The jury disagreed.
Daniel O. Hastings for plaintiff.
Reuben Satterthwaite, Jr., Assistant City Solicitor, for the defendant.
SPRUANCE, J.:--A majority of the Court overrule the objection and allow the question to be put.
SPRUANCE, J., charging the jury:
Gentlemen of the jury:--This action was brought by the plaintiff, Lewis Anderson, against the defendant, the Mayor and Council of Wilmington, a municipal corporation of this State, to recover damages for injuries to the plaintiff and his horse, alleged to have been occasioned by the negligence of the defendant.
It appears from the evidence and is not denied that on the 24th day of December, 1905, the plaintiff was driving in a buggy or road cart along Third Street near Woodlawn Avenue, in this City, when his horse stepped or fell into a hole in said street, throwing him from his vehicle.
It is conceded that said Third Street, where said accident occured, was at that time a public street of this City, and used as such, but was not paved or entirely graded.
The plaintiff contends that the defendant, not regarding its duty, negligently permitted the said hole to be and remain in said Third Street, without proper safe-guards to warn persons traveling along said street, for such time as by the exercise of due and proper diligence it would have known of the existence of said hole and filled the same or put...
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