Alley v. Blen , 28 Me. 308 ( 1848 )

The opinion of the Court was by

Wells J.

— This case comes before us, upon exceptions, to the opinion of the Judge of the District Court.

All the instructions requested were substantially given, except the last. In that, the defendant requested the Judge to rule, that the facts, testified to by Bien and Pottle, if true, constituted a sufficient possession on the part of the plaintiff, to relieve the defendant, from liability for subsequent injury, to the gondola, occasioned by the plaintiff’s or Pottle’s neglect to take care of her; when taken in connection with the other testimony of the plaintiff, that the defendant had informed the plaintiff, he should not take any further charge of her.

The Judge declined to give such instruction, but did inform the jury, that it was a question of fact, for them to determine, from the evidence in the case, whether the plaintiff did have possession of the gondola, when the acts complained of happened, or whether she still remained in the possession and at the risk of the defendant. It was certainly a matter of fact, whether the plaintiff had so conducted, as to relieve the defendant from damages for not returning the gondola. Bien and Pottle testified to facts, from which such a result might be inferred, but it was for the jury to make the inference, and not the Court. The Judge stated the rules, in answer to the other requests, by which the jury would be guided, and it was their duty to determine, whether the facts corresponded to them.

It was a fact, to be determined, whether there was any possession, and if that was found affirmatively, then the sufficiency of it was to be ascertained by the instructions already given.

The Judge was not asked to define what, in law, would constitute a possession, but that certain facts, tending to prove it, did actually prove it. We do not perceive any just ground for the exceptions. Exceptions overruled.