Dickey v. Maine Telegraph Co.

43 Me. 492

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1857
• Status: Published

Opinion

Hathaway, J.

In May, A. D. 1854, a stage-coach, in which the female plaintiff was traveling, on a highway in Northport, in the county of Waldo, came in contact with a telegraph wire extending across the way, and was overset, and she was injured thereby.

The wire was owned and placed there by the defendant company, and “ became slack, and drooped so low ” that the carriage could not pass under it.

The plaintiffs brought this action to recover pay for the damages sustained.

The case is presented on the defendant’s motion for a new trial, on the ground that the verdict against them, was against the evidence, and also upon exceptions.

It was not sufficient for the plaintiffs to prove that the defendants were in fault. To entitle themselves to a verdict, the plaintiffs were bound to show that there was no neglect, or want of ordinary care, contributing to the injury, on the part of the female plaintiff. She was required to exercise due and proper care to protect herself from injury. If her own negligence, or rashness, or want of ordinary care, concurred in producing the injury of which they complain, the plaintiffs ought not to have recovered damages for it, against the defendant company.

The burden of proof was on the plaintiffs to show, affirmatively, the exercise of such due and proper care and vigilance, on her part; and the defendant company allege that the verdict was against the evidence on this point. If the driver was guilty of neglect or want of ordinary care, the plaintiffs would be equally affected thereby, as if the female plaintiff were the driver. To prove the manner in which the accident, causing the injury, happened, the plaintiffs introduced as a witness, the driver of the carriage, David Harding, and the deposition of Henry Brown. The testimony of Harding, as reported in the case, not only fails to show that he used ordinary care and prudence, as a driver, at the time of the accident, but it contains plenary evidence of gross negligence and carelessness, or rashness, on his part, which manifestly contributed to the accident and the injury; and the deposition of Brown in no manner relieves the case from the effect of Harding’s testimony. We think the verdict is very plainly against the evidence. It is not necessary to consider the exceptions.

Motion sustained.

Verdict set aside, and new trial granted.