Smith v. Inhabitants of Brunswick

• Decision Date: 20 February 1888
• Citation: 80 Me. 189,13 A. 890
• Parties: SMITH v. INHABITANTS OF BRUNSWICK.
• Court: Maine Supreme Court

13 A. 890

80 Me. 189

SMITH

v. INHABITANTS OF BRUNSWICK.¹

Supreme Judicial Court of Maine.

February 20, 1888.

Motion for new trial from supreme judicial court, Cumberland county.

Action on the case to recover damages for an alleged injury to plaintiff's land.

John J. Perry and Dennis A. Mealier, for plaintiff. Weston Thompson, for defendants.

FOSTER, J. The defendants' motion to set aside the verdict in this case must be overruled. The evidence, when carefully examined, will be found to furnish a sufficient basis upon which the jury might found a verdict for the plaintiff. The action is case to recover damages for an alleged injury to the plaintiff's premises by reason of the wrongful acts of the defendants in constructing a ditch by which, for a period of six years prior to the commencement of this suit, large quantities of water were conducted across the defendants' land and discharged upon and against the premises of the plaintiff, thereby causing his land to be undermined, excavated, and otherwise damaged.

The evidence introduced on the part of the plaintiff, if it is to be believed, is sufficient to authorize the jury in returning a verdict in his favor. In some respects the evidence is conflicting. It does not so preponderate in favor of the defendants, however, as to warrant this court in setting the verdict aside. It is a rule that a new trial will not be granted where the evidence is conflicting and the case has been left to the determination of the jury under a clear and impartial charge. Hunter v. Heath, 67 Me. 507. In this case the charge of the presiding justice seems to have been satisfactory to both parties. No exceptions were taken. Where the evidence is conflicting upon points vital to the result, a verdict will not be reversed unless the preponderance against it is such as to amount to a moral certainty that the jury erred. Enfield v. Buswell, 62 Me. 128. Nor does the fact that a verdict has been rendered in favor of the defendants in a former action between the same parties necessarily constitute a bar to this suit. The former verdict may have been rendered upon facts which, had they been proved in this suit, might have caused the jury to render a verdict against the plaintiff. The cause of action in the present suit, as disclosed by the evidence, is not the same as in the former. The jury must have so found under the charge of the presiding judge. The damages here claimed are for injuries happening to the plaintiff's premises since the commencement of the other suit. In the former suit the plaintiff may have failed to show that he had suffered any damage by reason of the alleged wrongful acts of the defendants. The record introduced does not show upon what grounds the...