84 Vt. 521 | Vt. | 1911
The exceptions on which the case is presented' by the defendant’s brief are to the non-compliance with the fifth, sixth, and seventh requests to charge, and to the overruling of the motion to set aside the verdict, on the ground that it was not warranted by the facts in the case and the law-applicable thereto.
Some other questions respecting the law of that province were in dispute.
In support of the motion to set aside the verdict the defendant states as its position, that to entitle the plaintiff to recover, the burden rests upon him “to show by fair preponderance of evidence — (a) that the defendant failed to afford the plaintiff free and unobstructed entrance by the doorway through which he attempted to enter the car, and that such failure was the proximate cause of the injury; or (b) that after his injury the defendant assumed such care of him as to impose upon it a continuing duty to follow him through his treatment to his recovery, and that such duty was of a sort to make the defendant responsible to the plaintiff for any negligence, which must be shown, on the part of the surgeons who treated him.”
It appeared that the defendant’s station at St. Johns is on the south side of the railroad tracks of which there are several, and that the city is on the north side; that numbering the tracks in their order in front of the platform of the station, when passenger trains meet at that place the one from Montreal going east takes No. 1 track, and the one from the east going to Montreal takes No. 2 track; that the latter track has no platform accommodation on either side; that leading from the city to the station is Jacques Cartier street running approx
This disposes of the defendant’s position (a), under its motion to set aside the verdict, and also in effect of the exception to the non-compliance with the fifth and sixth requests.
The third count alleges among other things in short that it was the duty of the defendant under the law of the Province of Quebec, the plaintiff having been injured by the defendant, to take proper and suitable care of the plaintiff, to see that he was removed to a suitable and proper place for care and treatment, that his injuries were properly, skillfully, and suitably treated, cared for, dressed and attended to, that his foot was properly, skillfully and suitably amputated, and that he was relieved in so far as was possible and reasonable, from all pain and suffering occasioned by the injury, which duty the defendant failed to perform, etc. Respecting the negligence here alleged and the consequent right of recovery, the defendant’s contention is confined to the law upon which the claimed liability is alleged to rest. To prove such law the plaintiff used as an expert witness an attorney at law from that province. This witness gave testimony concerning the meaning and legal effect of certain ■sections of the Code read by him; also concerning a certain decision by the appellate court of the Province of Quebec, a quotation from which he read, as showing that a section of the Code referred to by him was applicable to such a statement of
The question of what the foreign law was after it was proved as facts did not depend merely upon the construction and effect of a written statute or the interpretation of judicial opinion; it involved, as seen, the construction and effect of written statutes and of judicial opinion, with the opinions of expert witnesses touching the meaning and legal effect of the same, together with the common law proved by expert testimony as having a ma=
In arguing position h under the motion to set aside the verdict, defendant’s counsel makes no claim that the evidence given by the two expert witnesses in this respect was not to the effect here stated; but he says this Court should examine this evidence carefully, and if that given by the plaintiff’s witness was manifestly illogical, unskillful and wrong, while that given by the defendant’s witness was manifestly sound, reasonable and in accordance with the best methods of legal exposition, then the motion should prevail and a new trial be granted. Yet the motion was addressed to the discretion of the trial court, and it not being claimed that there was an entire failure of proof on the point now under discussion, this Court can only inquire whether there was an abuse of discretion by that court in overruling the motion. On this motion the question was not whether on all the evidence the preponderating weight was in favor of the plaintiff but it was whether the evidence in favor of the plaintiff, giving it the greatest probative force to which according to the law of evidence it was fairly entitled, was sufficient to support or justify the verdict. Pleasants v. Pant, 22 Wall. 116, 22 L. Ed. 780. It was the province of the jury to construe the evidence and determine its weight. Applying these principles, we cannot say that there was any abuse of discretion by the trial court in refusing to set aside the verdict.
Judgment affirmed.