Abbott v. Concord & Montreal Railroad

In order that the plaintiff should prevail it was necessary for him to prove that his injury was caused by the negligence of the defendants' servant.

The plaintiff's evidence tended to prove that the trunks were hurriedly loaded and that so many were placed upon the forward end of the truck as to cause it to tip and throw those last loaded upon the plaintiff; and that just before the accident Woodlawn was loading trunks upon that end. Conceding the truth of this evidence (Bullard v. Railroad, 64 N.H. 27, 30), the jury could properly find that the plaintiff's injury was caused by the negligence of Woodlawn, and the motion for a nonsuit was properly denied.

The defendants' evidence tended to prove that it was not Woodlawn who loaded the trunks upon the forward end of the truck, but two of the plaintiff's fellow servants. The evidence upon this point was conflicting and required to be weighed. The duty of weighing it belonged to the jury (Lucier v. Larose, 66 N.H. 141), and the motion to direct a verdict for the defendants was properly denied.

The question whether the verdict should be set aside as against the weight of the evidence was for the trial judge. Fuller v. Bailey,58 N.H. 71; Merrill v. Perkins, 61 N.H. 262; Little v. Upham, 64 N.H. 279. The exception to his decision raises no question of law, if there was evidence to justify it. The result on the motions for a nonsuit and to direct a verdict shows that there was such evidence.

Exceptions overruled: judgment for the plaintiff.

PARSONS, J., did not sit: the others concurred.