Goodwin v. Avery

No complaint is made of the latter part of the charge below, which was founded on the supposition that, at the time of the affray between the parties, the part of the highway where it occurred was not in the occupation of any person, and that the parties were struggling for the possession of it. The argument before us has proceeded on the assumption that Mr. Prince was then, by his servants, the drivers of the carriages who were engaged by him to attend the funeral of his child, in the occupancy of the place, for the purpose of forming the procession on that occasion ; and that the order in which the carriages should be formed in the procession was by him confided to Mr. Potter, who, it is admitted, became thereby his agent for that purpose, and whose directions in respect to it were therefore in law those of Mr. Prince himself. The latter being thus in the possession of *590that part of the highway, for what was clearly a lawful purpose, had a right, either personally or through Mr. Potter, to direct as to the places in the procession which the carriages engaged by him should occupy, and the drivers therefore had a right to follow those directions; and if, in conforming or endeavoring to conform to them, they were prevented from .doing so or obstructed by the plaintiff, (who was not in the employ of Mr. Prince or acting by his direction, and therefore had no right to interfere with him or his servants in these funeral arrangements,) they had a right to oppose such acts of the plaintiff, or to defend themselves against any injury from him, by as much fprce as was necessary in order to enable themselves to occupy the place in the procession assigned to them. The propef enquiries on this part of the case, were— first, whether the defendant was directed by Potter to occup,y the place, and was,;j while occupying or endeavoring to occupy it, obstructed'! by the plaintiff,—and secondly, if he was so disturbed, whether hie used unnecessary force in obtaining or keeping the place. And; these questions were submitted by the court below, and wfth great clearness, to the jury. In one respect, perhaps, the charge was over-favorable to the plaintiff. It required the defendant to prove, not only that Potter had directed the defendant to occupy the place for which the parties were struggling, bpt also that the defendant had informed the plaintiff to that effect. It is questionable whether the plaintiff had strictly any right to such information from the defendant; for if the latter had, by Potter’s directions, a right to take that place, it would seem that he could not lawfully be deprived of it by the plaintiff, whether it was made known to him by the defendant or not. This point, however, has not been made, and it is unnecessary to notice it further. We discover no error in the charge of which the plaintiff can complain, and therefore do not advise a new trial.

In this opinion the other judges concurred.

New trial not advised.