Webb v. Portland & Kennebec Railroad
Supreme Judicial Court of Maine
On exceptions and motion. Case for injuries alleged to liave been received by Natban Webb, the plaintiff’s intestate, on the 28th of March, 1867, while “lawfully passing with his j'igger drawn by two horses, along the public street and highway in Portland, leading from Portland bridge across the railroad track of the defendants, into Canal street.”
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On exceptions and motion. Case for injuries alleged to liave been received by Natban Webb, the plaintiff’s intestate, on the 28th of March, 1867, while “lawfully passing with his j'igger drawn by two horses, along the public street and highway in Portland, leading from Portland bridge across the railroad track of the defendants, into Canal street.” O. 0. Thompson, called by the plaintiff, testified substantially that he had been flagman for the Portland, Saco, and Portsmouth Railroad Company at the crossing near their depot, in Portland, for eight years; that he was never employed as flagman…
1Opinion of the CourtBarrows, J.
Under the motion to set aside the verdict in this case, a new trial is claimed upon two grounds.
1. The defendants insist that there is a fatal variance between the plaintiff’s writ and the proof, inasmuch as the declaration avers that the injury was received when the plaintiff’s vehicle was passing along a public street and highway in said Portland leading from Portland bridge across the railroad track of the defendants into Canal street; and the proof, according to the defendants’ view of it, shows that the injury was received upon private land, rightfully used by trains of the Portland,…
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