Feurman v. Rourke , 133 Me. 466 ( 1935 )

Dunn, J.

While crossing Congress Street, in Portland, on foot, at about 9.30 p.m., on March 17,1934, at a point where there was no marked pedestrian lane or crosswalk, plaintiff suffered personal injury occasioned by a motor vehicle, a Chevrolet truck, which defendant was driving, striking him.

Plaintiff sued for damages. On issue joined, the jury found for the defendant. Motion for a new trial is on the ground that the verdict is contrary to the evidence, or the weight of the evidence.

Two things are essential to the success of an action such as was brought in the present case, namely; actionable negligence on the part of the defendant, and freedom on the part of the plaintiff from contributory negligence.

Not only must the declaration in the writ allege these essentials, but a reasonable preponderance of all the evidence must support them; failure so to sustain either bars recovery.

The jury determined, in effect, without regard to mere numerical array of witnesses, that, as to one, or both, of the problems of fact which the case involved, the weight, credit and value of the aggregate evidence on plaintiff’s side did not sufficiently sustain the burden of proof.

Certainly, the verdict is not clearly wrong; it stands.

Motion overruled.