Stratton v. Staples , 59 Me. 94 ( 1871 )

Walton, J.

This case is before the law court on a motion to set aside the verdict as against evidence, on a motion for a new trial on the ground of newly discovered evidence, and on exceptions to the rulings of the presiding judge.

1. Of the motion for a new trial, on the ground that the verdict is against evidence. The defendant contends that the plaintiff was not in the exercise of due care and prudence? and that he was guilty of no'negligence; and that the verdict is clearly against the weight of the evidence on both these points. Our conclusion is, that the evidence was sufficient to bring both these questions fairly within the province of the jury to decide, and that we cannot disturb the verdict on either of these grounds. Nor do we think the damages excessive.

2. Of the motion for a new trial on the ground of newly discovered evidence. We think this motion, also, must be overruled. In our judgment the evidence is not of such a character. as would be likely to change the result; and we see no reason' why the plaintiff might not, by the use of due diligence, have discovered it before the trial as well as afterwards.

8. Of the exceptions. The defendant contends that the presiding judge erred in submitting to the jury the question whether the plaintiff was legitimately on the defendant’s platform at the time of tlie injury. He says the instruction was wrong in two respects: first, because it was a question of law, and not a question of fact, whether the plaintiff was legitimately on the platform or not, and should haye been decided by the court; secondly, because the court made no distinction between that part of the platform where it would be necessary for the plaintiff to be in going to and returning from the defendant’s store, and the place where she was at the time of the accident. What the judge said was this : “ The next question which arises is, was the plaintiff legitimately on the sidewalk or platform? You haye heard her statement as to her business with the defendant; it is unnecessary for me to allude to the testimony ; it is all with you; if you find that she was legitimately on the platform, then the second allegation is made out.” This is all that was said on the point. The presiding judge seems to have treated it as one of minor importance, or one in relation to which there was no real dispute, and therefore disposed of it as briefly as possible. This it is often wise for a judge to do. To be enlarging and refining upon points, either of law or fact, about which there is no real dispute, is an evil. It distracts and burdens the memory of the jurors unnecessarily. The better course is to make the charge as full as possible on the vital points of the case, and as brief as possible on the unimportant ones. If either party thinks the charge is not as full on some of the points as it- ought to be; or, if he thinks some of the expressions used are ambiguous, or do not sufficiently discriminate between the law and the fact, the proper course is for his counsel to call the attention of the court to the fact, and to ask that other and more appropriate instructions be given. If this is not done, all objections on that account will be regarded as waived. No objection appears to have been made to either the form or the substance of the charge at the time it "was delivered. The judge told the jury that he had given them the law as it was understood by both counsel, that there was no disagreement in relation to it. This statement seems to have been acquiesced in by both parties and their counsel. All objections to the charge must, therefore, be regarded as waived.

We have given to this case much thought and a very careful consideration. Whether the plaintiff herself was not guilty of contributory negligence, and whether the defendant was guilty of actionable negligence, are, in our judgment, very close questions. Neither the plaintiff’s care nor the defendant’s negligence is very clearly established. But both questions seem to have been very fully and very fairly submitted to the jury, and the parties must abide by the result. Motions and exceptions overruled.

Judgment on the verdict.

Appleton, C. J.; Kent, Danfoeth, Baerows, and Tapley, JJ., concurred.