46 Vt. 683 | Vt. | 1874
The opinion of the coui’t was delivered by
It appears that after the case had been submitted to the jury, and they had failed to agree upon a verdict, the court directed a verdict for the plaintiff, and had the jury assess the damages. This course was taken with a view of having the questions of law, raised upon the trial, determined by this court. This disposition of the case, we think, was erroneous ; for if the jux’y had found the facts to be as the defendant’s evidence tended to show, cleaxdy the plaintiff would not have been entitled to recover, as the injury in that case must have resulted from the act of the plaintiff’s team, and without fault on the part of the defendant. The evidence tending to establish such facts, we think was admissible, and was admitted without objection, under the general issue. The judgment of the county court must therefore be reversed.
The counsel on both sides have fully discussed the question, whether, upon the facts which the plaintiff’s evidence tends to establish, the action of trespass can be maintained. The defendant insists that the action should have been case. Without entering the field of discussion that has been so fruitful of legal learning and ingenuity in the attempt to define and apply the distinction between the action of trespass and case, it is sufficient to say, that the rule seems now to be well established by the authorities, that
Judgment reversed, and cause remanded..