Gordon v. Tabor

Hutchinson, C. J. The plaintiff complains of being injured on the trial of this action, by a premature expression of an opinion upon the weight of evidence, by the Court, and by the Court’s refusing to hear further ovidence'^when offered by him : and also by the instruction given the jury. The two first points must rest so much in the discretion of the Court, that to grant a new trial on account of them, would be an innovation in our practice. And yet, we are not in the habit of expressing any opinion upon the weight of evidence. If there is none at all for the Jury to weigh, it is useless to trouble the jury with the cause. If there is any evidence upon the issue, we usually leave it to the jury without comment upon its weight. The meaning of the Court in this case, probably, was, that there was no evidence, tending to fix any blame upon the defendant.— Therefore no prima facie case was made out. This would clearly be correct in principle. I am inclined to the opinion, that there was some evidence, proper for the jury to weigh, as will be noticed when considering the instructions to the jury. And the Court did not take the case from the jury, but permitted it to go on to a verdict. It is true, it went under rather unfavorable circumstances, after such an intimation from the Court; especially as such intimations are not frequent, in our Courts, unless when the plaintiff’s testimony is excluded altogether. It seems, the plaintiff offered further testimony, which was excluded by reason of its coming too late. There -might be other reasons, perhaps. For (hat which was offered was not very direct proof of the declaration. And the plaintiff ought not to complain of a correct decision, •although the reason given should not be conclusive. Nor can we anticipate what other testimony the plaintiff would have offered, or whether any at all, if the Court had not decided that he was too late in his offer. If he had offered evidence clearly pertinent to the issue, probably it would have been received, late as it was. We pass to notice the instructions given to the jury. There is but one [108] Pa!^ °f these instructions that are at all exceptionable ¡: that is where the grounds of enquiry and decision are lira-bed to time and distance, while other considerations should not excluded. The jury were directed, “ to determine, whether, considering the distance performed and the time taken for that purpose, the driving was so unusual and immoderate as to create a fair presumption that the death of the horse was occasioned thereby.” They should have been instructed also to take into consideration the degree of heat then prevailing, the roughness or smoothness of the road, the weight of the waggon, the load in the wag-, gon, the time when the horse began to fail, how much he was used afterwards, whether the symptoms of failure -were such, as would render it imprudent and dangerous, to use him at all, and how long before he died, after the journey was ended. For want of the Court’s allowing the jury this enlarged view of circumstances, in deciding what killed the horse, the judgement of the County Court is reversed,, and a new trial is granted. Harrington & Hector Adams, for plaintiff Smalley & Adams, for defendant,,