Neal v. Rendall , 100 Me. 574 ( 1905 )

Emery, J.

The first request for instruction is based upon the factual hypothesis that there was not sufficient' time for the defendant to turn and reach the right of the middle of the road after he first saw the plaintiff approaching. It does not appear, however, from the bill of exceptions that there was any evidence in support of the hypothesis. Hence the request does not appear to have been applicable to the case, and its refusal does not appear to have prejudiced the defendant.

The second request is based on the factual hypothesis that the defendant’s team did not run into that of the plaintiff. From the bill of exceptions, it appears to be undisputed that both teams were in motion approaching each other up to the moment of collision, though the defendant’s team was proceeding at a walk. There is no suggestion of any evidence that the defendant’s team was stationary. Each team, therefore, ran into the other, though there was a difference in the speed of the two teams. This sufficiently sustains the ease stated in the declaration that the defendant’s team ran into the plaintiff’s team. It was practically so held in Neal v. Rendall, 98 Maine, 69.

The third request was based upon the legal hypothesis that the defendant’s negligence must have been the sole cause of the collision. This hypothesis is not well founded in law. It is enough if the defendant’s negligence was a direct contributing cause without which the collision would not have occurred, no evidence being stated of plaintiff’s contributory negligence. While the request might have been applicable were the action a statutory one against a town, it is not applicable to this common law action against an individual.

The fourth request is based on several factual hypotheses as to the character of the plaintiff’s horse, the condition of her husband, the driver, his manner of driving, his want of control over the horse, etc. Here again the bill of exceptions is bare of any statement that there was evidence in support of these hypotheses. It is not made to appear that the request was applicable to the case and hence that the defendant was prejudiced by the refusal to so instruct.

At the close of the bill of exceptions it is stated that the evidence upon a motion for a new trial if printed might be referred to to illustrate and explain the exceptions. It is at least questionable whether such a statement makes the whole evidence a part of the bill of exceptions to supply what was omitted in the bill itself, but we have no occasion to decide this question inasmuch as the evidence was not printed or brought before the court in any way.

It follows that none of the exceptions can be sustained.

Exceptions overruled.