Smith v. Wilson
Merle D. Smith v. Thorkild Wilson
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Opinion of the Court
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Dickinson, J.
The point that the verdict was not justified by the evidence presents the question whether it is apparent, upon the review of the case, that the testimony of the plaintiff as to the possession of the money alleged to have been taken from his person, and as to the fact of the robbery, was unworthy of belief by the jury. If it was credible, it clearly justified the verdict. Its most apparent infirmity was that in some important particulars it was different from the testimony of the same witness upon a former trial, as to the sources from which he received the money. The discrediting facts, which the testimony of the plaintiff tended to explain away, were properly placed before the jury for their consideration. They are not sufficient to justify us, upon a review of the record, in setting aside thé verdict which the trial court has refused to disturb.
There is nothing in the alleged negligence of the plaintiff which was not clearly subject to the determination of the jury upon the evidence. The fact that, sleeping in a room at the hotel occupied *336 only by himself, the plaintiff retained the sum of $495 in money secured in a belt around his body, was not such conduct as should be deemed negligence as a matter of law, although the bolt of the door to his room could be opened with a wire from the outside.
The evidence went to show, and after verdict it must be taken to have been the fact, that the defendant had not complied with the-statutory conditions so as to have protected himself from the common-law liability of innkeepers. The responsibility of the innkeeper in respect to the money of his guest was not limited to such an amount as was necessary for the guest’s travelling expenses. Armi stead v. Wilde, 17 Q. B. 261; Berkshire Woolen Co. v. Proctor, 7 Cush. 417 ; Wilkins v. Earle, 44 N. Y. 172 ; Quinton v. Courtney, 1 Hayw. (N. C.) 40 ; Redf. Carr. 598-605; Pinkerton v. Woodward, 33 Cal. 557, 600 .
The alleged impropriety in the remarks of the respondent’s attorney in his argument to the jury has not been shown by the settled case, and will not be considered upon affidavit merely.
Order affirmed.
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