86 Me. 422 | Me. | 1894
This is an action based on that provision of the Revised Statutes which makes railroad corporations responsible, for injuries caused by fires communicated by their locomotive engines. R. S., c. 51, § 64. The plaintiff was the lessee of a building near the track of the Maine Central Railroad Company an Burnham. He used the upper part of the building for a -dwelling-house and the lower partfor a store. October 6, 1892, 'the building and most of its contents were consumed by fire.
Exceptions. It appears that one corner of the building extended onto the location of the defendant’s roadway some six or eight feet; and, at the trial in the court below, the defendant’s counsel requested the presiding justice to instruct the jury that the erection of that portion of the store which was within the lines of the defendant’s roadway was unlawful, unless erected for the convenience of and to facilitate the defendant’s business authorized under its charter : that neither the plaintiff nor those under whom he occupied had a lawful right to erect a building within the defendant’s roadway for their own convenience or use alone; that such erection would be inconsistent with the purposes for which the charter was granted; that it was the duty of the company to preserve the roadway for the uses for which it was incorporated, and it had no right to permit other parries to erect buildings thereon for the sole use of parties other than the railroad ; that the railroad had the exclusive control of the land within its roadway, and it was not at liberty to alienate any part of it to be used by other parties for purposes not contemplated by its charter; that while Mr. Tucker, the general manager and vice-president of the corporation, had the right to license the erection of buiIdings within the roadway, or the use of those having been previously erected there, provided such erection or use was for the convenience of the railroad or to facilitate its business, he had no authority to license such erection, or the use of it, for the sole use and convenience of others in a business not connected with the defendant’s.
The presiding justice did not give the requested instructions in the language employed by counsel; but he instructed the jury that if there was a want of ordinary care on the part of the plaintiff in allowing his goods to remain in a building a part of which was within the located limits of the defendant’s roadway, whether there by license or otherwise, and such want
We now come to another question. The defendant’s counsel have included in their bill of exceptions an exception to remarks made by the plaintiff’s attorney in his closing address to the jury. Do exceptions lie for such an error? We think not. Exceptions lie only to errors of the court. A motion is the proper remedy for the misconduct of counsel. In this case, there was no error on the part of the court. The offending attorney was promptly called to order, and the jury instructed to disregard the improper remarks. If, under these circumstances, the remarks were considered sufficiently objectionable to entitle the defendant to a new trial, the new trial should have been sought by motion, not by exceptions. If, as in Rolfe v. Rumford, 66 Maine, 564, upon objection being made, the court had declined to call the offending attorney to order, and had omitted to instruct the jury to disregard the improper and irrelevant remarks, then there would have been error on the part of the court, and redress could have been sought by a bill of exceptions. But no such errors occurred in this case. The offending attorney was promptly called to' order and the jury emphatically instructed to disregard the irrelevant and improper
For the reasons given, we think the exceptions must be overruled. And we do not think the verdict can be regarded as so clearly against evidence, or the damages so clearly excessive, as to require us to grant a new trial on either of those grounds. Consequently, the motion must be overruled.
Motion and exceptions overruled.