The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1896-03-25
Law Court Decisions.
The following decisions were sent down
yesterday:
SOMERSET COUNTY.

son.
Rescript by Walton, Jan admission
made by party TO facilitate the trial OF
an action. must be taken and construed
as a whole. 1t must not be divided, and.
by accepting part, and rejecting part.
give to the admission an effect not in
| tended by the party making it. The
whole of the admission must DO taken
| together, as well what is favorable to the
party making it as what is unfavorable
| to him, and be construed according to the
| true intent and meaning of the party
| making the admission. Storer VS.. Cow
en-, IS Maine, ia; CIR. Ev. s2O1.
In the present case, the defendant adj
mitted that the goods sued for were deliv-
| cred to him, and that he took them and
| carried them away and used them. But
he did not admit that they were sold tc
him. or that he was ever liable to pay fol-
them. He claimed that they were ..deliv-
cred to him upon the order of third
party, to whom they should have been
| charged. Clearly, this admission, if TAX
en- as whole, and construed according
to the intentions OF the party making it,
did not confess that the plaintiffs had q
cause of action against the defendant. II
confessed a cause of action against q
third party but it did not confess one
against the defendant.
The presiding justice instructed the
jury that upon this issue the burden OF
proof was upon the defendant, That the
plaintiffs having made out their case BY
proof of the delivery of their goods to the
sion, the law implied o promise to pay fol-
them, and the defendant took the affirm
ative, and must satisfy them, upon pre-
ponderance of all the evidence, that his
claim was the right one.
1t is the opinion of the court that these
instructions were erroneous; that they
gave too great an effect to the defend
ants admission, and plaoed upon him 9
burden which he was under no obligation
to sustain. Exceptions sustained.
ANDROSCOGGIN COUNTY.
Edgar Ellis vs.. City of Lewiston.
Rescript by Walton, 1.-THE plaintiff
has obtained q verdict against the city oil
Lew iston for an injury claimed to have
been caused by a defect, or want of re-
pair, in one of it's public streets. The in.
jury was broken leg, and the amount
recovered, $780, The amount is not ex-
cessive, and there is no reason to believe
that the jury were Influenced by other
than honest motives But the defendant's
counsel insist that the verdict is clearly
and manifestly against the weight of evil
dance, and ought to be set aside.
The dangerous condition of the street
was caused by street. railway along the
center of it. The snow had been removed
from the railway track and left upon the
sides of the street, thus leaving the street
in condition too familiar with everyone
to need description. The plaintiff says
that his sleigh slowed on to the track,
and that for thirty or forty yards he pur.
sued his way on to the track; that he
then saw horse car approaching, and he
attempted to turn out; and, as he at
tempted to turn out, the sleigh tipped
| over and he fell out and broke his leg;
that, at that time, at that place, the track
was covered with water to the depth OF
several inches.
1t is insisted in defense that the street
railway was rightfully there, and that
the snow was rightfully removed from
it's track, and that the street commits
sioner OF Lewiston had done all that
could reasonably be required of him te
make the street safe and convenient for
travellers
The case is close one; and if the as
ton had been tried by the court without
jury, perhaps different result would
have been reached. But no questions of
law have been reserved, and hone Of the
rulings Of the presiding justice have beer
excepted to. The questions of fact ap
pear to have been fairly submitted to the
jury, and there is no reason to doubt
that they exercised an honest Judgment
There is some evidence. tending to sustain
every allegation which it was necessary
for the plaintiff to prove. Its sufficiency
was question for the jury. And, upor
the whole, it is the opinion of the court
that the verdict is one which the court
can not rightfully set aside. Motion over
ruled