Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1907-08-31

v.
Moultcn, IS Maine 551; Field V. Cap
pers, 81 Maine So. In Rowelf v.~Hay-
den, 40 Maine So, this question was not
raised CT decided. n
The plea in this case does not state
the day of the last continuance, and is
therefore fatally defective. 1t is not
necessary to consider other objections
to the plea.
The plea valves all former pleadings,
and if on demurrer it is adJudSed bad,
the Judgment goes in chief unless the
court allows a repleadcr, on terms
which it NAV do as decided in Augusta
v. Moulton. supra. This result renders
the defendants exceptions unimportant
and they are overruled.
To avoid a possible injustice, re-
pleader will be awarded.
Plaintiffs exceptions sustained. De-
murrer sustained. Plea bad. Re
pleader nunc pro tune awarded on pay
mcnt of costs since filing the plea.
Received August 10Th, 1907.
County of Cumberland. Annie T..
Stephenson VS.. Portland Railroad Com
pany. ReScript, Strout, j.
Action to recover for personal in
jurics. Verdict for plaintiff for $364l Log.
The ease is here upon special motion
by defendant to set aside the verdict
on the ground of alleged misconduct of
plaintiffs counsel in his argument to
the jury, and upon the general motion
as against evidence and for excessive
damages.
Upon the special motion. In argu-
mcnt to the jury plaintiff's counsel
said: "Three of the witnesses are rail-
road men i'll the employ of this said
company. | believe one of them has
been discharged Il few times and hired
over" Defendants counsel objected to
this statement as to discharge and hir-
ing over, as introducing facts not in
evidence. Unsupported by evidence,
the statement ought not to have been
made. Was it injurious to the defend
ant? If so, it would be cause for set
ting aside the verdict. The witness
might have been discharged for lack of
work. Hiring him over indicated con-
fdence in the man by the defendant.
No fault was imputed to him. But for
another reason we think the statement
was harmless While the defendant did
not admit liability, it was not denied
that plaintiff received some injury, and
non-li2 bility was not StrenuOusly in
sisted upon. and we do not see how it
could be- The real issue was the extent
of that injury. The witnesses alluded
to by counsel for plaintiff testified as
to the fact of collision and the attend
ant circumstances, but gave no mate
rial testimony upon the magnitude of
plaintiffs hurt; and upon that queS-
ton, the real one in issue. these wit
nesses were unimportant. No harm to
defendant. therefore, could come from
the remark.
In defendants argument to the jury
counsel had made Il point that the
plaintiffs presence in court during the
trial of three days was inconsistent
with her claim as to great and perma-
nent injury. In reply to this, counsel
for plaintiff stated that he took the
responsibility for that, latter haNlnS
asked the doctor. inquired OF nm
whether it would be safe" 1t may adj
nit of doubt whether under the CIR
cumstanceS this remark was not Justi-
fable. However that may Ge, plain
tiff's presence in court was known TO
benefit Of his argument upon that TACT.
The remark was not prejudlclal TO the
defendant upon the question at issue.
If it had any effect, it tended to
strengthen defendants argument. BE
ing brought there by her own counsel
was more significant than if her APP
Dcarancc had been entirely voluntary
Upon tho general motion. The plain
tiff received some injury for which de-
PENDANT was clearly liable. How great
was that injury? After carefully eX-
aiming the evidence and considering
the temperament Of the plaintiff. hcl
previous condition of health and hol
condition after the accident. we do not
think all her troubles wcr" caused pA
the collision. 1t would be improbable
to review the evidence of the phySl-
clans in connection with that Of tht
plaintiff. but the result Of an eXaml'
nation is that the damages awarded b5
| the Jury are excessive.
The spccial motion is overruled.
IL plaintiff within thirty days after
filing the rescript in this case shall re-
nit all If the damages in excess of two
thousand dollars the entry will be: Mo-
ton oycrrulcd. otherwise, motion suS-
tanned for excessive damages and YER
Gict set aside.
So ordered.
pacn;,,d hup,,cf o0th 1907