hibit (No. 2, Plaintiff) are made a part of the exceptions.

The exceptions, in full, are as follows: "On the trial the plaintiff offered a certified copy of the record of the town clerk of the town of South Thomaston, Me., marked 'Exhibit No. 2, Plaintiff,' to prove the marriage of the plaintiff, Eugene A. Snowman, to Emma M. Freeman, or to prove that the clergyman was legally qualified to officiate, without offering any evidence to identify the parties. To the admission of this copy of record the counsel for the defendant seasonably objected, as insufficient to prove the marriage of the plaintiff to the person named in the writ as his wife. The said copy of record (Exhibit No. 2, Plaintiff) was admitted against the defendant's objection.

"At the conclusion of the evidence, counsel for the defendant requested the court to direct the jury to return a verdict for the defendant upon the ground that the plaintiff had failed to produce or offer any evidence to identify the said Eugene A. Snowman and Emma M. Snowman named in the writ with the Eugene A. Snowman and Emma M. Freeman named in said copy of record (Exhibit No. 2, Plaintiff). This request to direct the jury to return a verdict for the defendant, the court refused.

"To which rulings admitting said copy of record (Exhibit No. 2, Plaintiff), and refusing to direct a verdict for the defendant as requested, the defendant excepts, and prays that his exceptions may be allowed."

County of Knox. State of Maine.

Exhibit No. 2, Plaintiff.

Town of So. Thomaston, Jan. 21, 1904. I, C. Richard Ward, the subscriber, do hereby certify that it appears by the Record of Marriages of said So. Thomaston that Eugene A. Snowman and Emma A. Freeman were married in Rockland, on the 18th day of November, 1893. The record is in words and figures following, to wit:

Date of Marriage.

By Whom Married.

Names of Parties.

Residence.

So.

Thomaston.

Nov. 18, 1893. Rev. J. H. Parshlay. Eugene A. Snowman. So. Thomaston. Nov. 18, 1893. Rev. J. H. Parshlay.

Emma M. Freeman.

The above copy was properly authenticated.

At the outset the plaintiff asserts that the defendant's exceptions do not present a case

that should be considered. He invokes the record to show that the defendant only seasonably objected to the admissibility of the certified copy of the marriage certificate as alone sufficient to prove identity, without reserving any exceptions. But we find at the bottom of the record the usual clause-that to the ruling admitting the copy of the record the defendant excepts. In making up exceptions without a copy of the evidence showing just what was done, the statement that the defendant did except must be held to relate to the time when the objection was made.

The only exception which admits of consideration, however, is that relating to the sufficiency of Exhibit No. 2 to prove the identity of the parties named in the certificate of marriage; the other, with respect to the authorization of the officiating clergyman, being too indefinite to enable us to know just what it means.

The refusal of the presiding justice at the close of the evidence to order a nonsuit for any cause is not exceptionable, the exercise of such power being discretionary. Bragdon v. Insurance Co., 42 Me. 259; Webber v. School District, 45 Me. 299.

The plaintiff contends that the exceptions fail to show that the defendant at the trial required any evidence of identification, and, in the absence of any such requirement, the plaintiff was not bound to identify. The answer to this is that the plaintiff is bound to prove his case, and one of the elements of proof in this class of cases is that of identity.

It is clear that such proof was suggested, and may perhaps be reasonably inferred to have been required, from the fact that the defendant seasonably objected to the certificate offered, "as insufficient to prove the marriage of the plaintiff to the person named in the writ as his wife." While the exceptions do not affirmatively state, yet, as the plaintiff does not controvert it in the exceptions, it may be fairly assumed, that the certificate was the only evidence offered to prove the identity of the plaintiff and his alleged wife with that of Eugene A. Snowman and Emma M. Freeman named in the certificate. The certificate was undoubtedly admissible as a piece of evidence tending to show the identity of the parties, and in civil case would be regarded as prima facie evidence of that fact, but a different rule obtains in criminal cases and in the case at bar.

"It seems to be a general rule that in all civil actions, except those for criminal conversation, general reputation and cohabitation are sufficient evidence of marriage." Taylor v. Robinson, 29 Me. 323. Again, the court say on the same page, quoting from Greenleaf's Evidence: "The proof of marriage, as of other issues, is either by direct evidence establishing the fact, or by evidence of collateral facts and circumstances

from which its existence may be inferred. Evidence of the former kind, or what is equivalent to it, is required upon indictments for polygamy and adultery, and in actions for criminal conversations, but in all other cases any other satisfactory evidence is sufficient."

"Positive proof of a legal marriage is required upon the trial of persons indicted for polygamy and adultery, and in actions for criminal conversation." Pratt v. Pierce, 36 Me. 454, 58 Am. Dec. 759.

While the certificate of marriage was admissible as collateral evidence, was it sufficient, in this case, without any evidence aliunde, to prove the identity of the parties, and consequently a legal marriage? Our court, in a case on all fours with this one, have decided that it was not. In Wedgwood's Case, 8 Me. 75, the defendant was on trial upon an indictment for adultery, and in proof of marriage a certificate of the following tenor was admitted: "Mr. Isaac Wedgwood and Miss Judith Kelly, both of Lewiston, were joined in marriage July 15, 1821. Dan. Reed, Justice of the Peace." The certificate was in due form and properly authenticated. In effect, it was precisely like the certificate under consideration. But the court say (page 76): "The certificate in the case before us is only proof of a marriage between Isaac Wedgwood and Judith Kelly, of Lewiston, in July, 1821, but it does not prove that the defendant is the same person named in the certificate. And as we now establish the rule that proof of identity must be produced in such cases, it must be proof of identity of person, and not of name, merely. It may serve as a guard against fraud and deception." To the same effect is Mooers v. Bunker, 29 N. H. 420. "But if a question is made, a jury is not at liberty to presume that a person even of so peculiar a name as Timothy Mooers is the same person as the man of the same name who is shown to be entitled to a particular estate." Exceptions sustained.

(99 Me. 486)

LANG et al. v. MERWIN. (Suprerue Judicial Court of Maine. Feb. 21, 1905.)

GAMBLING-SLOT MACHINE - STATUTORY NUISANCE-INJUNCTION.

1. To constitute gambling in the statutory sense of the term, it is not necessary that both parties should stand to lose as well as to win by the chance invoked. It is enough that one party stands to win only or to lose only.

2. A slot machine, so operated that the operator putting into it a nickel coin, receives in any event a cigar of the value of his coin, and also stands to win by chance additional cigars without further payment, is a gambling device.

3. A cigar store where such a machine is set up for the use of customers, and is used by them, becomes thereby a statutory nuisance, and may be enjoined as such,

(Official.)

Appeal from Supreme Judicial Court, Somerset County, in Equity.

Bill by A. H. Lang and others against Howard P. Merwin.

Petition of 20 legal voters of the town of Skowhegan, under Rev. St. 1883, c. 17, § 1, as amended by statute of 1891, p. 88, c. 98, now Rev. St. 1903, c. 22, § 1, against the tenant or occupant of a certain room in a certain building in said town, praying for injunctions, both temporary and perpetual, to restrain the defendant from using or allowing said room to be used as a place of resort for gambling.

The justice of the first instance found the facts to be as follows:

"The defendant was the possessor of a nickel-in-the-slot machine, which he operated in his cigar store. The machine, so far as necessary to describe it, consisted of a cylinder, in five sections, made so as to revolve upon a shaft. Upon the outer surfaces of the sections were representations of playing cards. When the sections were at rest, five cards would be in sight. By pressing a lever the sections were made to revolve, and the mechanism of the machine was such that the sections revolved at different rates of speed, no two alike. The points at which the sections would severally stop, and the combinations of cards which would thereby be left exposed to view, was purely a matter of chance. The machine was played by those who resorted to the defendant's store according to the following scheme: The player deposited a nickel in the slot of the machine, and pressed the lever. The player in any event was entitled to a 5-cent cigar, and the defendant testified, and I find, that he might select any 5-cent cigar in the store. If three cards of a kind were exposed after the sections ceased to revolve, the player was entitled to 2 additional cigars; if a 'straight,' 4 additional cigars; if a 'flush,' 6 additional cigars; if a 'full hand,' 8 additional cigars; if 'four of a kind,' 10 additional cigars; if a 'straight flush,' 25 additional cigars; if a 'royal flush,' 50 additional cigars. The player had the right to exchange 2 5-cent cigars for a 10-cent cigar. By this arrangement, the player, for 5 cents placed in the machine, received the same returns that he would if he had paid 5 cents on the counter. And he might receive more. If he received more at any play, it follows that the defendant lost on that play, which loss he could only recoup by the profit on the cigars sold thereby when the player won no extra ones. And the defendant expected to make such profit by an increased sale of cigars through the use of the machine. The machine was in operation on this plan three weeks, and the defendant estimated the results as amounting, on the average, to the sale of 6 five-cent cigars for 25 cents."

Upon this finding of facts, the justice of the first instance dismissed the petition, and thereupon the plaintiffs appealed. Reversed.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, POWERS, PEABODY, and SPEAR, JJ.

Butler & Butler, for appellants. Forrest Goodwin, for appellee.

EMERY, J. The defendant had in his cigar store a slot machine of the kind, and operated in the manner, described in the finding of facts by the justice of the first instance. It is agreed by the parties that if using the machine in the manner described constituted "gambling," in the statutory sense of the word, then the defendant's cigar store was resorted to for gambling, within the purview of the statute upon which this petition in equity is based (Rev. St. 1903, c. 22, § 1).

The word "gambling," as a legal term, has been variously defined by courts and legal authors. By some of these definitions, both parties to the transaction in question must stand to lose by chance, as well as to win. Judged by these definitions, the transaction in this case does not constitute gambling, since the operator does not stand to lose anything by chance, but only to win. By other definitions, however, it is not essential that both parties should stand to lose by chance. It is enough if one party stands to lose or to win by chance. If such be the statutory meaning of the term, then the transaction described does constitute gambling, since the operator stands to win something by chance, and the cigar dealer to lose by chance. In view of the conflict of authority, the justice of the first instance dismissed the petition, practically pro forma, that the case might have upon an appeal an authoritative determination. Our task now is to ascertain in what sense the narrow or the broad-the word "gambling" was used by the Legislature in enacting this statute.

Aid in determining the sense in which the Legislature used a given term in one chapter or section of its statutes may often be obtained by considering the language of other chapters and sections upon the same or kindred subjects. Referring to the chapter entitled "Gambling" (Rev. St. 1903, c. 126, § 1), we find that every person is forbidden to "permit any person to gamble in any way in any house, shop or place under his care or control." Referring to the chapter entitled "Offenses Against the Public Health, Safety and Policy" (Rev. St. 1903, c. 129), we find in section 20 that "every lottery, policy, policy lottery, policy shop, scheme or device of chance of whatever name or description, whether at fairs or public gatherings or elsewhere, and whether in the interests of churches, benevolent objects or otherwise is prohibited." It would seem from these to have been the intention of the Legislature to prohibit every pecuniary transaction in which pure chance has any place. There are no

words of limitation or exception. To give effect to this intention, it would seem necessary to hold that the Legislature has used the term "gambling" in its broadest, most generic sense, as comprehending every spe cies of game or device of chance.

In the case before us it is absurd to assume or concede that the person putting his five cents into the machine may be doing so merely as a means or mode of buying a five-cent cigar. It is absurd to deny that the impelling motive is the hope of getting other cigars for nothing. If the machine did not afford that chance, it would not be used. True, the cigar dealer sets up the machine to increase his trade, and is recouped by that increase for any losses, so that in the end he loses nothing; but he does so by arousing and stimulating the gambling propensity— the very propensity the Legislature evidently seeks to repress. The element of chance is the soul of the transaction. operator hopes by chance to get something for nothing. The dealer hopes chance will save him from giving something for nothing. Each is pecuniarily interested adverse to the other in a result to be determined solely by chance. To use the language of the street, "it is a gamble" which will win, and we have no doubt the transaction is "gambling," in the statutory sense of the word.

The

If authority for this conclusion is needed, it is not wanting. In State v. Willis, 78 Me. 70, 2 Atl. 848, in speaking of an advertisement alleged to be of a lottery, this court said: "However disguised by indirect or deceptive expression, the paper, as a whole, discloses a lottery. If it were not so, readers would not become buyers." So, in the case at bar, however disguised the scheme or device, its essential element is that affording a chance to get something for nothing. If it were not so, visitors to the store would not use it. A like case, in principle, is Horner v. United States, 147 U. S. 449, 12 Sup. Ct. 407, 36 L. Ed. 126. The Austrian government issued bonds, and, to induce purchase of them by the public, it obligated itself to pay not only the principal and interest of each bond, but also such additional sum, if any, as the number of the bond might draw in a lottery established for that purpose. The fact that the purchaser of the bond presumably got full value for his money in the bond itself, and did not stand to lose anything by chance, was held by the court not to save the transaction from being a lottery. The element of lot or chance was in it, and that was enough. The two cases seem alike in principle. The opinion of the court is elaborate and exhaustive, citing many cases. We deem a reference to that opinion and the cases cited therein all that is necessary by way of citation.

Decree below reversed. Petition sustained, with costs. Injunction granted.

1. No rule of law is better settled in this state than the one which declares if a person, by his own negligent acts, contributes to the accident in which he is injured, he cannot recover for the injuries so received.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, § 84.]

2. The general rule is that, when the testimony is conflicting, the verdict must stand, but a conflict of testimony cannot be said to arise simply because one witness testifies contrary to another.

3. The rule cannot be so construed. It means that there must be substantial evidence in support of the verdict-evidence that is reasonable and coherent, and so consistent with the circumstances and probabilities in the case as to raise a fair presumption of its truth when weighed against opposing evidence.

(Official.)

Action by Andrew J. Moulton against the Sanford & Cape Porpoise Railway Company. Verdict for plaintiff. Motion for a new trial. Sustained.

Argued before EMERY, WHITEHOUSE, STROUT, PEABODY, SPEAR, and SAVAGE, JJ.

E. P. Spinney, for plaintiff. Allen & Abbott, for defendant.

SPEAR, J. This is an action on the case to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant in running its electric car at an unreasonable rate of speed in approaching, in the opposite direction, the plaintiff, with his team, thereby frightening the plaintiff's horse, and causing the injuries of which he complains.

No rule of law is better settled in this state than the one which declares that if a person, by his own negligent acts, contributes to the accident in which he is injured, he cannot recover for the injuries so received. We think the plaintiff's case clearly within this rule.

comes

Admitting the negligence of the defendant -which we doubt-the evidence shows that the negligence of the plaintiff clearly contributed to the accident causing his injuries. The verdict of the jury is, of course, a very strong barrier to overcome. The general rule is that, when the testimony is conflicting, the verdict must stand. But a conflict of testimony cannot be said to arise simply because one witness testifies contrary to another. If it was so held, hardly a verdict could ever be set aside. It would be difficult to imagine a case that had been dignified with the verdict of a jury that would not present some conflict of testimony. Besides, if such were the rule, it would only be necessary to secure the evidence of a witness,

however false, to hold a verdict once obtained.

The rule cannot be so construed. It means that there must be substantial evidence in support of the verdict-evidence that is reasonable and coherent, and so consistent with the circumstances and probabilities in the case as to raise a fair presumption of its truth when weighed against the opposing evidence. When it is overwhelmed by the opposing evidence, a verdict cannot stand. Roberts v. Boston & Maine R. R., 83 Me. 298, 22 Atl. 174.

If the verdict is regarded as clearly and manifestly against the evidence, it will be set aside. Gilmore v. Bradford, 82 Me. 547, 20 Atl. 92; Cosgrove v. Kennebec Light & Heat Co., 98 Me. 473, 57 Atl. 841. When the evidence, viewed in the light of the circumstances surrounding the whole transaction, so strongly preponderates against the plaintiff upon points vital to the result as to amount to a moral certainty that the jury erred in the conclusion reached by them, the verdict should be set aside. Smith v. Ins. Co., 85 Me. 348, 27 Atl. 191.

In Cawley v. La Crosse R. R., 101 Wis. 150, 77 N. W. 180, the court say: "If there was anything in plaintiff's evidence, standing alone, tending to show that she had passed two or three teams before-and we say there is not-the rule of law, often announced, that the testimony of an interested party contrary to the facts otherwise conclusively established in the case and all reasonable inference from the situation disclosed by the evidence, does not raise a conflict requiring a finding by the jury." Flaherty v. Harrison, 98 Wis. 559, 74 N. W. 360; Badger v. Janesville Cotton Mills, 95 Wis. 599, 70 N. W. 687.

The plaintiff's contention in this case is that on the 16th day of March, 1903, he was driving along a public street in Kennebunk village on his way from the Boston & Maine freight depot towards his home, with a barrel of coal in his wagon; that his horse had always been perfectly kind around the electric cars; that when he had arrived at a point opposite the house of Mr. James Stone, and crossed the railroad track to the northerly side of the road, the defendant's electric car, which is alleged to have caused the accident, was coming from Kennebunkport, and was just below and beyond the curve at the foot of the hill; that the plaintiff and the defendant's car continued to approach each other until 400 feet apart, when the car swung around the curve at the foot of the hill, which gave the car the appearance, at this point, of coming head on to the plaintiff's team.

The plaintiff at this time was more than 130 yards distant from the car; yet he says his horse, hitherto safe and used to the cars, displayed great fear, pranced and stood up, and that he waved his hand to the conductor to stop, and that the conductor paid no atten

tion; that he tried to control his horse, and did until the car was passing him, when his horse swung from the road, and in so doing the hub of the nigh hind wheel struck a trolley pole, swinging the horse northerly across the ditch and up the bank, where the carriage struck an elm tree, throwing the plaintiff out, and severely injuring him. The defendant controverts the plaintiff's position on every point, and affirmatively asserts (1) that the plaintiff's horse was not well broken and kind, but uncertain and vicious; (2) that the plaintiff, when approaching the car was negligent in his manner of driving; (3) that his carriage did not strike an electric pole, claimed to have been negligently set too near the traveled part of the way; (4) that the car was moving up a 4 per cent. grade at a slow rate of four or five miles an hour. The weight of evidence was with the defendant upon all of these propositions, and overwhelmingly so in one or more involving the defendant's own negligence as a contributory, if not the proximate, cause of the accident.

The plaintiff was a blacksmith, and had in the hind part of his "democrat" wagon, as it is called, a barrel of coal. When he crossed the track at the top of the hill, he says he was driving his horse with his left hand, and steadying the barrel of coal with his right. This testimony of the plaintiff himself clearly indicated that, while driving along the road entirely unmolested, the barrel was unsteady, and required holding. It is not denied by the plaintiff, and is shown by all the witnesses upon this point, that the barrel remained in the wagon during all the escapades of the horse, including his crossing the ditch and climbing a steep bank, so that the coal was "dumped alongside of the tree on the bank," as one witness testifies and others corroborate.

In the light of these unquestioned facts the plaintiff says, at about half way between the house of Stone and the pole with which he collided he released his hold upon the barrel, and used both hands in driving his horse.

In contradiction of the plaintiff's unsupported testimony upon this point, McGovern, the motorman, and Freemont Allen, who is in no way connected with the defendant, both testify positively that when the plaintiff crossed the front of the car, an instant before his horse bolted, he was driving with his left hand, and holding the barrel of coal with his right, in just the manner the plaintiff admits he was driving at first. Upon this vital point in the case whom does the fact that the coal was not dumped until the wagon reached the tree corroborate? Because the place where dumped is a powerful physical fact bearing upon the truth of this contention. It may be possible, but it is not probable, that the barrel of coal, which would not sit in the wagon upon the wrought part of the highway without the

plaintiff's hand to support it, could have remained in the wagon, unsupported, while the horse bolted across the ditch and up the bank. The fact that the barrel, under the circumstances, stayed in the wagon until it reached the tree, makes the conclusion wellnigh irresistible that the plaintiff was not only holding the barrel when he passed the car, but continued to do so until his wagon struck the tree and was partially overturned, thereby dumping the coal.

We think the testimony of the two witnesses, and that of the situation surrounding the accident, the truth of which cannot be gainsaid, conclusively prove that the plaintiff was negligent in the manner of driving his horse, and that his negligence contributed to the cause of his injuries.

The plaintiff, it will be observed by the testimony, claims that the wheel of his wagon struck an electric pole, which had been set so near the travel of the road as to constitute negligence on the part of the defendant, and that, had it not been for the proximity of this pole to the road, and his collision with it, he might have passed the car without accident, notwithstanding the fright of his horse. It is not necessary that he should prove any collision with the pole to render the defendant liable, if it was negligent as charged, and he was exercising due care. But the evidence is overwhelming that the plaintiff's carriage did not collide with the pole. This contradiction casts a doubt either upon the honesty or correctness of the plaintiff's narrative of the accident.

As it is unnecessary to pass upon the question of the defendant's negligence, the rate of speed of the car becomes immaterial except as bearing upon the fairness of the witnesses. Balch, the plaintiff's witness, says the speed was five or six miles an hour, and his estimate is not in serious conflict with that of the defendant's. But upon the character of the plaintiff's horse a sharp controversy arose, to which we allude in view of its bearing upon the credibility and candor of the plaintiff. He first testified to the good qualities of the horse. Then, when speaking of throwing up his hand to signal the motorman, he says: "After I threw up my hand, I took my horse-of course, I paid strict attention to the horse, as I knew him." Knew him how? Does a kind horse need strict attention? After he was injured, and suffering mental and physical pain, several witnesses testified to his declaration as to what his wife had told him in regard to using the horse, which was, in substance, "My wife told me that horse would break my bones if I didn't get rid of him." On cross-examination he denied that he made any such declaration.

"Q. Ever make any remark to this effect, or this substance: "That my wife told me that if I didn't sell this horse it would break my neck or my leg some time? A. No, sir; my wife didn't tell me any such