Knapp v. Hortung

Mr. J ustice Paxsoit

delivered' tne opinion of the court,

The plaintiff has certainly been unfortunate in this case. The first trial, resulted in a.verdict in his favor. He was not' satisfied with the amount and the court below set it aside on his motion and granted a new trial. Upon the second trial there was a .verdict for the defendant, and as the case is presented here we see ho stíffiéient grounds of reversal.

The ‘three assignments of error all relate to the logs, in the meadow. We have nothing to do with any other branch of the cáse. . • ;

The portion of the charge embraced in the first assignment is not error, either standing alone or taken in connection with the remainder of the charge. The allegation is, not that it is bad law, but that it misled the jury. It is not so assigned for error however, and we are unable to see that it was misleading. It fairly submitted to the jury the question whether the defendant excluded the plaintiff from any part of the locus in quo, which included the meadow. The jury .were further told that if the defendant appropriated any of the logs in the meadow without plaintiff’s consent it would bo a trespass; but if there was no breach of plaintiff’s close. and no appropriation of his logs, there could be no recovery. This was well enough, and if the plaintiff desired more specific instructions he should have asked for them.

The second and third assignments allege error.in the answers to points. The plaintiff’s third point was substantially affirmed. The answer was that if the jury find the facts as stated in the point “ then we affirm this point.” What the plaintiff has to contend with here is the verdict. The court affirmed his law, but the jury did not find his facts. Nor do we see any material error in the affirmance of the defendant’s sixth point. It is true the learned judge inadvertently fell into error when he said the defendant was a bailee of the logs in the meadow, but it was a harmless error. Calling him a bailee when he was not did the plaintiff no injury. The material instruction was that if the logs were placed in the meadow by plaintiff with defendant’s permission, that the plaintiff was to remove them at such time as to do no injury to the grass; that if plaintiff failed to remove said logs after a reasonable notice to do so, and the defendant thereupon removed them, he would not thereby become liable in an action of trespass. Here again, if there was any error it was on the part of the jury. The case was left to them with proper instructions, and it is not our province to revise verdicts. . ' .

Judgment affirmed.