Mills v. Wilmington City Railway Company
| Decision Date | 01 May 1894 |
| Citation | 15 Del. 269,40 A. 1114 |
| Court | Delaware Superior Court |
| Parties | BENJAMIN MILLS v. WILMINGTON CITY RAILWAY COMPANY |
New Castle County, May Term, 1894.
This was an action on the case brought by Benjamin Mills against the Wilmington City Railway Company, to recover damages for injuries to his right leg while traveling upon the public highway, alleged to have been caused by a rock hurled against it from blasting done by the defendant company on or near said public highway.
Verdict for the plaintiff for $ 250.
At the trial Hilles, for the plaintiff, asked that the plaintiff be permitted to exhibit the injured leg to the jury.
Saulsbury for the defendant, objected, unless he be permitted to have a physician present. It was agreed by counsel that the plaintiff might be submitted to an examination by a physician during the recess, and all objection was withdrawn, and the plaintiff exhibited the injured leg. During the noon recess the plaintiff was examined by three physicians, selected by the counsel for the defendant. Afterwards, when one of these physicians was upon the stand, Saulsbury, for the defendant asked the Court to compel the plaintiff to expose his leg before the jury for the purpose of explanation by the physician testifying, so that the latter might explain the injury to the jury; contending that as the leg had been exhibited, it was in evidence and properly subject to inspection and explanation. Hilles, for the plaintiff objected.
PER CURIAM. We think that we have no power to compel the plaintiff to submit to an examination.
OPINIONLORE, C. J. (charging the jury).
This is an action on the case, brought by Benjamin Mills, the plaintiff, against the Wilmington City Railway Company, the defendant, to recover damages for injuries to his right leg.
On the twenty-third or twenty-fourth day of September, 1892, the defendant company was engaged in blasting rocks in the bed of the Wilmington and Philadelphia turnpike road, a highway of this county, at or near Shellpot Creek. The plaintiff was on the highway, and was struck on the right leg by a piece of the rock which from blasting was hurled against his right leg near the knee, causing the injuries of which he complains.
The plaintiff claims that he was injured by the negligence of the defendant; that the blasting was dangerous in itself and was done in a most frequented public highway; that no proper warning was given of the blast or care taken to prevent accident.
The defendant claims that it was lawfully engaged in blasting rock for the purpose of improving the road under the authority of its charter, and with the consent of the turnpike company; that it exercised all reasonable and proper care; that the accident was caused by the contributory negligence of the plaintiff.
It is for you to decide whether the plaintiff is liable in damages under the law as we shall now announce it in pursuance of the prayers presented...
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