68 Me. 552 (Me. 1878), O'Brien v. McGlinchy

Citation:68 Me. 552
Opinion Judge:PETERS, J.
Attorney:W. L. Putnam, for the defendant. B. D. Verrill, for the plaintiff.
Judge Panel:APPLETON, C. J., WALTON, BARROWS, LIBBEY and VIRGIN, JJ., concurred.
Case Date:December 19, 1878
Court:Supreme Judicial Court of Maine

Page 552

68 Me. 552 (Me. 1878)




Supreme Judicial Court of Maine.

December 19, 1878

         ON EXCEPTIONS AND MOTIONS from the superior court.

          CASE by an infant three and a half years of age, by his father

Page 553

and next friend, for negligence of defendant's teamster, Fitzgerald, declaring that he ran over the plaintiff with a horse and wagon, on Center street, Portland, November 2, 1875, and thereby the leg of the plaintiff was bruised and broken, etc.

         There was evidence tending to show that Center street was one of the most frequented streets in Portland; that its width was about forty-five feet, and that the plaintiff was run over or against and hurt as alleged. Two witnesses, Angus McMillan and George L. Jordan, testified that just before noon of the day alleged they witnessed the catastrophe. McMillan testified that the wagon looked like one he painted for defendant; and Jordan that the driver said it was the defendant's team.

         John Fitzgerald, called by the defendant, testified that he drove the defendant's team three days in November, 1875; that he knew nothing at the time about running over any boy, nor until about three weeks afterwards. A writing of the following tenor, dated January 6, 1876, signed by the witness' mark, and witnessed by Alfred L. Oxnard, was put in evidence by the plaintiff: " I was driving James McGlinchy's team the second day of last November, and ran over a small boy in Center street, but did not stop to see how bad he was hurt." The witness on cross-examination testified that he had been thrice in jail, twice for stealing.

         The defendant's counsel requested the following instructions: " I. If a child is of too tender age to be permitted to go in the streets without the attendance and supervision of those having him in charge, their negligence and want of due care will have the same effect in preventing the maintenance of an action for an injury occasioned by the neglect of another, as would plaintiff's want of care if he were an adult.

         II. A child of the age of this child at the time of the alleged accident was of too tender an age to be permitted to go in the street unattended, within the meaning of the last instruction.

         III. That plaintiff cannot recover for the negligence of defendant's agent under the circumstances of this case, because of the negligence of its parents in allowing it to go unattended in the street, under the circumstances of this case.

          IV. Proof that team driven by defendant's agent ran over

Page 554

plaintiff and caused the injury would not alone be sufficient to entitle plaintiff to recover; but in order to recover, he must also prove that the running over was caused by negligence of defendant's servant, and that neither the negligence of plaintiff, nor of his parents, or whoever had charge of him, contributed thereto; and that the burden is on the plaintiff to prove both such negligence on part of defendant's agent, and such want of contributory negligence on part of himself or of those who had charge of him."

          The presiding justice gave the first and fourth requested instruction, but declined to give the second and third. The verdict was for the plaintiff for $1,100, which the defendant moved to set aside; and he also alleged exceptions.

         The defendant afterwards filed a motion for a new trial on the ground of newly discovered evidence, under which he produced evidence tending to show that the witness, Jordan, was not at Portland on the day alleged; that he was then an operative at work in the Continental mill, Lewiston; that John T. Oxnard, of Freeport, who Jordan testified was the first to talk with him about being a witness for the plaintiff, had before the trial written the following letter to the defendant, dated June 20, 1876, signed " From a friend," mailed Freeport, Maine, June 21:

" Dear Sir:--I was to your place of business last week, but as you was away, I had some little conversation with your bookkeeper in regard to the case now pending in superior court against you for your team running over a little boy on Centre street. Your book-keeper wished me to write you or come and see you.

          Now I have reason to believe the whole thing to be a fraud; that your team never run over the boy, and think I can show you how to get out of it. I will come to Portland and see you if you will send me $3.00 (three dollars) to pay expenses, as I told your book-keeper I would do, and then if you think I can do you any good, why then I shall expect you to pay me a fair thing to help you out of it, as I think I can do it without any trouble. If, after you...

To continue reading