Melendy v. George A. Ames & Co., 62 Vt. 14

Melendy v. George A. Ames & Co.

62 Vt. 14 | Vt. | 1889

The opinion of the court was delivered by

Boyce, Oh. J.

This was an action on the case brought to-recover the value of. certain logs that the declaration alleges were lost in consequence of the negligence and carelessness of the defendants in not stopping and retaining them by their boom which was strung across Connecticut river. The defendants requested the court to charge that the burden of proof was upon the plaintiff. The court charged that the burden of proof was upon defendants to show that the logs were lost without their fault.

The defendants were entitled to the charge requested and it was error not to comply with the request.

To entitle the plaintiff to recover it was incumbent upon him to show that the logs were lost in consequence of the negligence and carelessness of the defendants as alleged in his declaration, and the burden of proof was upon him to show the fact. The error was not cured by what the court said upon the matter of the burden of proof, if the jury should find a certain state of facts. The first contract seems to have been that the plaintiff *17was to put his logs into the river and run them down to the defendants’ mill, to be sawed into lumber by them at a certain price per thousand.

The plaintiff for reasons disclosed in the evidence was unable to run the logs, and applied to the defendants to run them from Thetford to their boom, which they had strung across the river to stop and retain them. And his evidence tended to show that the defendants received the logs at Thetford, a point some distance above their boom, the same as if they had been delivered in their boom. The defendants’ evidence tended to show that they did not agree to accept the logs at Thetford, and that in what they did in running the logs from Thetford to their boom they acted as the agents of the plaintiff. The boom gave way, and the plaintiff’s logs, as well as those of the defendants, went down the river. An arrangement was made by the parties that the defendants were to run the logs down the river to some point where they could be secured and sold. The defendants succeeded in having a part of the logs stopped at Turners Falls and the rest went down the river and were lost. Those stopped at Turners Falls were sold by the defendants at the market price; of all which the plaintiff had notice. The court charged that if the defendants received logs as the plaintiff claimed, and they were lost, it was for them to show that it was without their fault, and nowhere else qualified the rule as at first stated as to the burden of proof.

The suit., as before observed, being predicated upon the carelessness and negligence of the defendants, whereby the plaintiff suffered the damages alleged, the burden of proof was upon him to show such carelessness and negligence.

The plaintiff introduced Ira Melendy as a witness, who testified that after the logs were sold, in a conversation with one of the defendants, the latter said that he wan ted to know why the plaintiff did not come down and fix up about that lumber business. The court charged that that evidence tended to show a recognition of liability on the part of the defendants for the loss of the logs. In that we think there was error. What was said by the *18defendant Ames to the witness had no such necessary tendency. It might as well have referred to the pay for the logs sold by the defendants or the expenses incurred in running the logs as have been a recognition of the liability of the defendants for the loss. If any benefit could have been claimed by the plaintiff from what Ames said, it should have been submitted to the jury to find what liability Ames referred to. So that there was an unwarrantable use made of Melendy’s testimony.

Judgment reversed and cause remanded.