Eastern times., 1855-09-13
s. J. Court, Sagadahoc County.


by the statute Of the state brought TO recover
damages against the city for injury sustained
by plaintiff by membranes in Broad and
Commercial ssrests, by reason of which the
plaintiff in driving truck team through said
streets, was overturned, and both bones of one
OF ms legs were broken, little above his an
Gle Joint. The accident happened Oct. 10,
1894, caused, as was alleged, by plaintiffs
horse taking fright and running the wagon
against large stone, placed in the street bv
Elmes Il Tebbets, who were erecting a brick
factory near the steamboat wharf little south
and west of the city landing. The gas COM
pany had opened trench at the time, where
by Commercial street, leading to the river was
incumbered and the passage from Front street
to the wharf was narrowed, and in some plac-
es there was not width enough for teams to
pass going in opposite directions. The plain
tif~s wagon was loaded with spikes, oars, and
other heavy articles; he was in the wagon
driving his horse, when it was overturned !;
| plaintiff claimed of the city $4,000, damages.
To all this the defendants pleaded that they
were not guilty, on which plea the issue was
Joined, and the cause was put TO the Jury
Gilbert and Bronson appeared as counsel
for the plaintiff; Tallman for the CITY,
The plaintiff introduced several witnesses to
establish the facts stated in his writ.
| Thos jackson testified that he saw the ac-
cident, and stated substantially the facts al
| legged by plaintiff.
! VIM. HAYES testified that he saw the wagon
wheel strike the rock near Elmes g. Tebbet's
shop, by which it was upset, and Anderson's
leg broken.
Enoch Gilman testified that he witnessed
the accident, saw the wagon strike the stone
and upset.
VIM Hogan testified as to the bigness of
the stone.
Charles Roberts testified that he witnessed
the accident and described it much as the other
witnesses did.
DR.. Anderson testified professionally, of the
nature and extent of the injury.
DIR. G. M. Gay, the surgeon, who attended
the plaintiff in the first instance, set the brok-
en- bones of the leg and administered to the
plaintiff, testified fully as to the extent and
nature of wound to the plaintiffs leg here
the plaintiff stopped, and H. Tallman opened
the defence.
Mr.. Coombs, brick layer, testified that he
at the time, was building chimney in Elmes
& Tebbet's brick building, about forty feet
above the ground saw Anderson's team pass
down Broad street at quick rate; plaintiff
was in the wagon with oars, which he was
holding on to with his left hand and arm, and
driving with his right arm.
| John Weeks testified that he saw Anderson
driving down Broad street: sang out TO him
TO let go of the oars he supported with his left
hand the horse was going fast; it appeared
as if something gave way; plaintiff said his
reins gave way, and if it had not been for that,
/ he could have done better. Weeks was su
perintendent of the gas works; that the open
| passage down Broad street was from Is TO 20
| feet, and that teams were frequently passing
! up and down.
SewaIl Ham testified that he saw the acci-
! dent, and stated the situation OF the wagon and
/ load after it was upset.
Aaron Donnell testifies he was agent Of the
steamer Teazer and the place OF landing
freight.
Geo. Mouton testified that the rock laid in
the travelled part of the street.
j. b. Swanton testified that Anderson did
his trucking was at the place about the time
the accident happened saw the stone the
horse was gentle as far as he knows; has
rode behind him.
Henry Swanton testified as 10 the load on
Apderson's wagon at the time, 700 or 800 VT.
of spikes, tiller blocks, and oars also that
Anderson lay 30 feet from the stone when
move out OF tue Wagon.
Drs. Nourse and Putnam called for the de-
fence. They both testified as to the character
of the fracture, examined AGdersons leg in
Court, in presence of the jury, stated that it
would always be shorter than beforessby from
one-half to three-quarters of an inch, that the
bones had united, that it was hardly probable
that it will ever be as good as the other leg.
Here the testimony of Drs. Gay and Anderson
was introduced 20 show the duration OF plain
tiffs confinement, and how he had progressed
since the casualty the age of plaintiff is A
years.
Defendants put into the case the city char
ter, Maine Reports, vol. &c. Case, Albert
Merrill VS.. Town of Hampden also vol. 80
page 46; Moore and wife VS.. town of Abbott
In the latter case the full Court decided that
where the injury arises in part from defect ul
incumbranae in the highway, and part from
delinquency in the plaintiffs horse, carriage
or harness, or want of ordinary care in drv-
mig, that is, by the united effect of both caus-
es, the town or city bound 10 keep the road OIL
street in repair, is not liable, and on this point
the plaintiffs case depended. Tallman ar
gu.d for the city, to the jury, seizing the strong
points of his case and arguing them at length,
and with much force, tending to convince the
Jury that plaintiff could not recover from the
testimony, and by force of law. Gilbert ar
gued for plaintiff, in reply TO Mr.. Tallman
occupying one hour forty-fve minutes. His
argument proved him untring in his efforts tc
90 to the foundation of his case, and neglect
nothing on passant, that aided his side of the
controversy.
May-presiding Judge-directed the jury
in matters of law, in clear, concise and I'm
portant manner and as the law grew out ot
the facts disclosed in evidence, he stated that
the city was under no moral obligation to In
demnify the plaintiff; their liability depend
ed strictly upon the statute; that plaintiff was
bound 10 prove his whole case; he here re-
cited, that he must prove it a way that the city
was bound 10 keep in repair that It was out
of repair, and that the city or some Of IFS in
habtants had notice thereof; that Anderson
was bound 10 use ordinary care in driving, ac
cording 10 the street that if the city gave the
Gas Company liberty TO dig up any part of the
street, and they did dig it up and the plaintiff
knew it, he was not entitled to recover, If HI
did not use ordinary prudence in driving thai
the city had a right to give Elmes q Tebbet'
leave to occupy part of the street in building
under the direction of the street commission
er, but that if they did not comply with The
city ordinance in fencing in their materials, i
did not exonerate the city, provided the acci
dent was caused by the stone. deposited By
them in Broad or Commercial street.
The jury here took the case about o'clocl
P NJ. and when the bell rang for O'Clock