The Portland daily press., 1869-10-01
New Advertisements this Day.
United States Circuit Court.

FOX, j., PRESIDING.
ihohsDAY.-Court came in at 10 o'clock whtn
ouise FOX delivered his charge TO the jury in the
'"'o Vi mary w. Merrill vs.. City of Portland, OF
which the following is an abstract:
The owner of land adjacent IN n pu,,i. sir.et and
especially one who has the fee OF the land On which
the sidewalk Is constructed, the city having only an
easement tor the street, NAV erect ond .,a,-,a;n
awnings projecting from the adjacent bp,d,, Gu
the sidewalk, provided the same are made "a "a r,,
to endanger public travel. Us Metealf 296: Ann
OBJ To subject the city to action for damages or
casioned by such erection, there must have been n
defect or want of repair in the awning of such ma
ture as rendered its continuance dangerous to the
public Height and width, as regulated by city Or
dinances, are not absolutely conclusive upon the
city, that is II the defect is lower or wider than
stated in the ordinance is evidence for the jury. lii
ability OF town for damages arising from deltc-
tive way depends upon proof Of the same iaels that
would render II liable to Indictment and In all cases
where 1t may be held for damages 1t may be indet-
ed. t42 Maine 522.) 1t is question OF fact Tor the
jury whether the awning constituted defect in the
highway. The statute Is not intended to impose an
absolute liability upon towns for every insuficeneyi
they only required TO do wha is practicable to be
done to provide and preserve condition OF reasona-
BILE safety in their roads with reference to the amount
and kind of travel they accommodate. Here the
Judge read from IA Gray, 2i6 and 2i7) In deciding
whether the awning as constructed constituted de-
feet In the highway for which the town is accounta
bic, the jury will take into consideration its height,
width, the materials of which, and the manner in
which, it constructed, and from all the testimony
will determine whether it was defect in the high
way, dangerous TO the safety of the pablo when
passing on foot or with teams and carriages such
might necessarily be exI eeted use the street Was
1t 1.-THE street in such condition that having In view
the common and ordinary occasion for its USE and
what may fairly be required for the proper accom-
mediation of the public at large in the various
pations which may from time 10 time be pursued, 1t
was reasonably safe and convenient. As to notice,
he 1.-THE judge gave tho instruction requested by
counsel The plaintiff must have been in the exer-
else of ordinary care, and there Is no pretence
claim on the part of the defendants that she was
not If the jury find that the awning. construct
ed, was defect in the highway, and that the trav-
elled portion of the street outside the sidewalk
safe and convenient that the driver with his team
could pass all the same without difficulty, and
that he fit to drive into the gutter, 50 as to hit
the awning with the side Of his cart, and thereby
knocked the end board off on to the plaintiff, caus-
ing the injury complained of, and the board would
not otherwise have fallen, the plaintiff have been
injured, the city is not to be held accountable
such injury; for when injury Is occasoned by the
| united effect OF defect in the highway and any
other the city is not liable. town is not LA
to person injured by the combined effect oil de-
feet on the highway and the negligence careless
ness of third person.
Tho jury brought in verdict OF $4,000 for the
/ plaintiff.
The counsel for the city filel motion to set Idle
the verdict against the law, The weight Of evidence
and the manifest instructions of the presiding Judge
| A. Merrill. Howard s. Ceaves.
l G. F. Talbot.
i Court adjourned to Monday.