Buckley v. Morse

“These are two action tried together and involving the same facts. One by a father for loss of service of his daughter and for expense incurred as a result of her injury by the defendant. The other by a daughter pro ami for damages as a result of injury caused by the defendant. The claim of the plaintiffs was that the defendant’s agent and servant so negligently operated the defendant’s motor truck that it struck the sled on which the plaintiff’s daughter was sitting or by which she was standing and thus caused the. injury. The occurrence took place January 8, 1920.”

George C. Wing and George C. Wing, Jr., for plaintiffs. Frank A. Morey, for defendant.

The verdict was rendered for the plaintiff in each case, and both cases are brought to the Law Court upon the usual motion. The controversy as the case comes to the Law Court is confined to a single issue. The defense is an alibi. The issue as stated by the defendant in his brief is as follows:

“The fixing of this time is important, because it will be brought to mind that the defendant denies that his truck was there at that locality at that time and was not the truck, if any, injured the girl, and we do not believe that she received her injury in any such way as is alleged in the writ.”

The question is not whether the truck was, as a matter of absolute fact, at the locality, but does the evidence preponderate in favor of the plaintiff’s contention in proof of that fact. That was a question of fact not for the court but for the jury.

We are of the opinion from an examination of the evidence that the jury did have substantial evidence upon which to found their verdict if they believed it; and the question of credibility was also one addressed to them and not to this court. Whatever we might have found, were we sitting as triers of fact, we have no legal right under the law and constitution of this State to substitute our judgment for that'of the jury when they have-acted within the scope and meaning of the law. 'Nor do we feel authorized to disturb either verdict on account of the amount. Motion overruled in each case.