Phillips v. Wilpers

By the Court Ingalls, P. J. At the conclusion of the [392] evidence upon the application of the defendant’s counsel the court directed a nonsuit, and refused to submit the case to the consideration of the jury. After a careful examination of the evidence we have arrived at the conclusion that the non-suit should not have been granted. To justify the court in withholding a cause from the jury, the case should be very clear, so much so, that no reasonable doubt can be entertained in regard to the facts. In this case, the evidence shows that the rope was securely fastened to the defendant’s chimney and did not break; the witness, Smallman, testifies that on Sunday he saw the defendant upon the roof having hold of the rope. It further appears that the defendant was informed before he w'ent upon the roof, that the rope was attached to the chimney and to a tree, and that by the blowing of the wind the chimney might be injured if the rope was allowed to remain. There is also the additional evidence that after the plaintiff was injured the defendant was informed of it, and charged with having caused it, which he did not deny, but stated substantially that if the expense for medical attendance was not excessive he would pay it. It is insisted by the defendant’s counsel that the defendant denies under oath that he touched the rope, or that he agreed to pay the expenses, and further insists that the evidence shows that the witness Smallman, could not have seen the defendant upon the roof near the chimney, from, the place where Smallman was located. These were considerations proper to be submitted to the jury. In cases where the evidence is conflicting, and particularly where a question of credibility is raised it is unusual to withhold the case from the jury. In the hurry of the circuit little time is allowed for anything like a deliberate and careful consideration of the evidence. Doubtless the learned judge was strongly impressed with the conviction that the plaintiff’s case was so far disproved and overcome by the evidence on the part of the defendant, that the verdict of the jury if rendered in favor of the plaintiff could not be upheld. It is quite possible that the jury might have taken quite as favorable a view of the evidence in favor of the [393] defendant. I think the plaintiff was entitled to the privilege of taking that risk. It is further insisted by the counsel fori the defendant, that the defendant was justified in removing the rope because it was attached to the chimney without his permission. That would be so under certain circumstances, but that right must be exercised in such manner as not to betray a reckless disregard of the safety of others. A technical trespass Avould not justify the infliction I of irreparable injury, and the assertion of a right must be qualified by a reasonable regard for the security of others. It is said that the defendant had no reason to infer that the rope sustained the scaffold. I think it was for the jury to say whether he should not have ascertained the fact before he loosed it, and whether it should not have occurred to a reasonable mind that the rope was attached to the chimney to subserve some purpose, and not placed there through mere wantonness./'If the defendant intended to remove the rope, f which he doubtless had a right to do properly, he was bound I to exercise reasonable prudence, and to have accomplished the V Avork in such manner as to give notice to those who could be' affected thereby. If the jury should conclude that the defendant only partially unloosed the rope, so that while it appeared to those who Avent upon the scaffold to be secure, yet when weight Avas applied it gave way, they might regard it little better than a trap Avell calculated to produce serious injury. Under such circumstances, an act which in itself might be lawful, would, by the manner in which it was executed, become unlawful and subject the party to damages. /In discussing this case, we do not intend to be understood as even intimating what conclusion should be drawn by the jury from the evidence, conflicting as it is, but our object, is simply to ascertain, Avhether the evidence, so overwhelmingly preponderated in favor of the defendant, as to justify taking the case from the jury. We are of opinion that the nonsuit Avas improper, and that a new trial should be ordered, with costs to abide the event. UeAV trial granted.