Southard v. Bangor & A. R. Co.
| Decision Date | 08 October 1914 |
| Citation | 91 A. 948,112 Me. 227 |
| Parties | SOUTHARD v. BANGOR & A. R. CO. |
| Court | Maine Supreme Court |
On Motion from Supreme Judicial Court, Aroostook County, at Law.
Action by Theodore R. Southard against the Bangor & Aroostook Railroad Company. Verdict for plaintiff, and defendant moves for a new trial. New trial granted on the question of damages only.
Argued before SAVAGE, C. J., and BIRD, HALEY, HANSON, and PHILBROOK, JJ.
F. W. Halliday; of Newport, for plaintiff. Stearns & Stearns, of Bangor, Powers & Guild, of Fort Fairfield, and Joseph F. Gould, of Bangor, for defendant.
The plaintiff recovered a verdict of $8,500 against the defendant for personal injuries. The only question submitted to the jury was that of damages, for the defendant admitted liability. The defendant filed a general motion for a new trial, also a motion based on newly discovered evidence.
As to the general motion, we think it only necessary to say that the verdict seems excessive. But we will not undertake now to discuss the question, for we think the motion based on newly discovered evidence should be sustained.
At the trial the vital question was: What was then the plaintiff's physical condition, so far as it had been affected by the acts for which the defendant was responsible? Knowing this, the jury could determine past damages and draw reasonable inferences as to future damages. The claim of the plaintiff, which his testimony tended to support, was that, as a result of his injuries, he was suffering from an incurable disease, that he was physically wrecked, and able to do but little, if any, manual labor.
The newly discovered evidence comes from several witnesses and relates to the acts and doings of the plaintiff after the trial, but nearly related to the time of the trial of such a character that, if this testimony is true, the plaintiff at that time could not have been suffering as he claimed, and could not have been in the physical condition he said he was. Since the evidence must be submitted to a jury, we do not analyze it, but it tends to show that in the very next month after the trial he went into the woods on a hunting trip; that within three or four months after the trial he engaged in heavy work, went to dances, and danced, and did other things indicating that his physical condition was good, and it is strongly contradictory of what the plaintiff claimed at the trial.
That evidence of things happening after the trial may be regarded in...
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...on the ground of newly discovered evidence; In Re McClellan's Est., 107 N.W. 681; Colo. Springs v. Togelsong, (Colo.) 94 P. 356; Southard v. Co., 91 A. 948. Paul Showalter and Ray E. Lee for defendant in error. An assignment worded. "Errors of law occurring at the trial excepted and etc." p......
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...Hoyt, 164 Mo. 124; Ry. Co. v. Fogelsong, 42 Col. 341; In Jensen v. Hamburg American Packing Co., 23 A.D. 163, 48 N.Y.S. 630; Southard v. Bangor Railroad, 91 A. 948; State v. Murray, 91 Mo. 103; Rickroad Martin, 43 Mo.App. 597; Lessenden v. Ry. Co., 238 Mo. 247; Waddell v. Ry. Co., 111 S.W. ......
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...Coal Corp., 154 Va. 401, 153 S.E. 805, Wagner v. Loup River Public Power Dist., 150 Neb. 7, 33 N.W.2d 300. See also, Southard v. Bangor & A. R. Co., 112 Me. 227, 91 A. 948, L.R.A.1915B, p. 246. Many other cases could be cited which apply the rule that if the after-trial facts would tend mer......
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