Daily Kennebec journal., 1908-11-18
RECENT REScRlPTS.
Opinions Handed Down in kennebec
* and Piscstaquis Cases.

lie SIouIIu VI HeWly ulScOVeTeu evil
dence.
The defendants horses became frigh-
tened ty locomotive shifter in the
yard of the Maine Central Railroad
Company at Waterville and ran into
the horse of the plaintiff which was in
the same yard. Both teams were
there for the purpose of getting freight.
a track runs through the station called
the house track and another runs
alongside the building and very near
it on the northwest side The plain
tlff's team was backed up to the side of
the freight station toward the south
east, while the defendants team stood
parallel with the house track just cut
side the westerly end of the station.
While the defendant and another man
were engaged in unloading lumber
from fiat car on to the defendant s
cart, shifter came suddenly and rap
IDLY upon the nearby track, blew off
steam Aid frightened the defendant $
horses, which ran away, collided with
the plaintiffs team and killed the
PLAINTIFFS horse.
Ine negligence on the part Of the Ge-
fendant. as claimed by the plaintiff
consisted in his rot taking proper care
OF his horses so as to prevent the acci-
dent. He claims that the place was a
dangerous one, that the defendant
knew his horses were frightened by
cars. that what happered on the part
Of the shifter was only what could be
reasonably expected to happen, that it
should have Lecn foreseen by the de-
fendant and guarded against
The defendant attempted to justify
his conduct by showing in evidence
that he had owned these horses two
years, that they We're not frightened
by cars, that he had used them in lum-
her yard i'll Winslow situated beside
the tracks Of the Maine Central Rail-
road and that they We're accustomed to
Just such a place as they We're in at the
time of the accident; that before he
began to unload the lumber from the
car, ne fastened the reins to a standard
on his cart where he could readily seize
them i'll ,ase of emergency, that he
was himself upon the cart loading the
lumber While his helper was on the car
that the sudden appearance of the
shfter with its escaping steam frigh-
tened the horses SO that they turned
sharply and threw him from the cart
ana thcl were beyond his control. Tn
'er t@t@ circumstances he claimed
that he WAS measuring up to the stand
ard of All ordinarily prudent man, and
was not liat le in this action. The Jury
took this view Of the case and a care
ful study of the evidence fails to bring
us 10 the conclusion that the verdict
was clearly wrong. The facts We're not
in dispute. 1t was question of infer
"uce from facts not really controverted.
facts which We're peculiarly within the
experience and good judgment of ju-
~. The inference drawn by them
seems to the court to have been more
nearly right than wrong.
The newly discovered evidence con-
sists of the testimony of a witness
whose livery stable was near by and
who says that the defendant, or a
man whom it may be assumed was the
defendant. called at his stable just
prior to the accident with view to
exchange of horses and that soon after
they separated, he heard a shouting
and saw the team running away. This
is offered to contradict the defendants
testimony that he was on the cart
when the horses started. The strong
est St1tCmcnt the new witness will
make is that ''he doesn't think the de-
fenGant had time to get to his team
before it started. but still he might"
This evidence is rather weak. But
giving to it the full weight to which it
is entitled, it seems only to raise an is
sue of fact as to whether the defend
Ii, 81
unity to the rens at the tine of the
accident, while opposed to it is the pos
tive testimony of the defendant him
self and of the man who was on the
car
Tho rule governing motions for new
trial on the ground of newly discovered
evidence has been stated in a recent
case in these words: '"The true doctrine
iI that before the court will grant new
trial upon this ground. the newly dis
covered evidence must be of such CHAR
acter. weight and value, considered in
connection with the evidence already
in the case, that it seems to the court
probable that on a new trial. with the
additional evidence. the result would
oe changed or it must be made 10 ap-
pear 10 the court THAT HlJuSliCe iS ike
ly to be done if the new trial is re-
fused. 1t is not sufficient that there
may be a possibility or chance of a
different result. or that a jury might
lie Induced to give a different verdict;
there must be Il probability that the
verdict would be different upon new
trial Parsons VS.. Railway Co. 9t
Maine. 503.
1t surely cannot be said that the new
evidence here rises to that significance
Notions overruled.
REED Nov. 18th, 1908.
Piscataquis County.
Henry Hudson VS.. Charles p. Webbel
# al.
Rescript by Savage, j
An office copy OF a deed, the orig
iral OF which was unacknoWledged. oi
without proper acknowledgment. is in
valid and inadmissible against tnirc
parties: and whether the original deco
was properly acknowledged, not only
| in forrl but before a magistrate hav.
irg jurisdiction, must appear upon the
copy itself, wien offered as evidence
| "A Certificate of acknowledgment
ipcnHo;apt uban tho n1aP or vaOIIf