Farrar v. Inhabitants of Greene , 32 Me. 574 ( 1851 )

Howard, J.,

orally.—The requested instruction, as to the standard of ordinary care, was not the most appropriate; it was too latitudinarian. If given, we doubt whether it could be sustained. The instruction given is the usual and appropriate one ; clear and unexceptionable.

The plaintiff contended that his wagon was a sufficient one. The Judge said it ought to be. It is ingeniously argued that the instruction required the plaintiff to have a wagon which would withstand all defects of the road, and prove itself sufficient for the service intended. But such is not the import. He was required to have a wagon, which, “ xoith ordinary care,” would prove to be sufficient; not one which, without the use of care, should resist every obstacle. But if sufficient, the town would not necessarily be liable; and if insufficient the plaintiff is not necessarily precluded from recovering.

But, so far as the instructions went, they were correct. Are they to be set aside, because some of the conditions pertaining to the case, were not expressed ? Some instructions were given. If others were desired, a request for them should have been made. Exceptions overruled.