Bacheller v. Pinkham

68 Me. 253 | Me. | 1878

Libbey, J.

This case comes before us on exceptions and motion to set aside the verdict as against evidence.

The exceptions recite the most of the charge of the judge to the jimy, to which exception is taken in gross. This court has heldjthat exceptions taken in this manner cannot be sustained unless all the legal propositions contained in the charge, or the portion excepted to, are erroneous. Macintosh v. Bartlett, 67 Maine, 130. Harriman v. Sanger, 67 Id. 442.

It is not claimed that all the legal propositions contained in that part of the charge recited in the exceptions are erroneous. For this reason the exceptions must be overruled.

But on a careful examination of the portions of the charge to which our attention is called by the learned counsel' for the plaintiff, we see no error. The rules of law upon the points raised were very fully, clearly and correctly given to the jury.

We think the evidence does not so preponderate against the verdict as to authorize the court to set it aside. Under the first count in the writ, for acts done by the defendants in entering upon the locus and rebuilding the bridge, the evidence is clearly sufficient to sustain the verdict, either upon the ground of a way by location, or by prescription.

Under the second count, as the case was presented to the jury, . we do not feel so clear as to the correctness of the verdict; still, there was evidence on .the part of the defendants which, if believed by the jury, was sufficient to authorize the verdict. The issue presented to the jury was whether Smith, the plaintiff’s hired man, who drove his team to haul some stones for the foundation of the abutment of the bridge, and in so doing did the alleged acts of trespass, was at the time the servant of the plaintiff or defendants. The defendants introduced evidence tending to prove that the plaintiff requested them to put in some wide, flat stones for the foundation of the abutment, in such a manner that they would project beyond the surface of the abutment so that he could rest his mill slip upon them, and offered, if they would do so, to furnish the stones and his man and team to haul them, and assist in laying them; and that they assented to his proposition. The evidence, if believed, was sufficient to authorize the jury to so find. Upon this issue, however, there was a conflict of evidence. The credibility of the witnesses, and the weight to be given to their evidence, were for the jury.

But there is another ground, not presented to the jury, upon which we think the verdict on this part of the case can be sustained. One of the defendants was acting in his official capacity as selectman, and the other as servant of the town. The plaintiff testified that he let his man and team to haul the stones to the town, and that the town paid him for the service. If so, Smith was the servant of the town in performing the labor, and not of the defendants; and they would not be liable for his trespasses while performing the service, unless they directed or authorized them. The evidence tends to prove that they did not direct or authorize the alleged acts of trespass, but that they were done in violation of their orders.

Exceptions and motion overruled.

Appleton, C. J., Dickerson, Barrows, Daneorth and Yir&in, JJ., concurred.