The Portland daily press., 1881-03-11
Supreme Judicial Court.

George ID. B. Witham VS.. The City of Portland
This was an action against the city to recover for
personal injuries sustained through an alleged de-
feet in the sidewalk Milk street in this city, The
case was tried at the November term, 1879, of the
Superior Court and the jury returned verdict for
the plaintiff for $4,000. Hon. Bion Bradbury an
Feared for thelplaintiff and Clarence Hale, ESQ.,,
for the city. On the part of the defendant a mo
ton for new trial was filed and argued at the law
term in July last. Yesterday decision was re-
ceived from the law court as follows:
Rescript by Virgin, 1.-THE plaintiff recovered a
verdict of $4,000 against the city of Portland for
personal injury which he testified was caused solely
by an alleged defect in the sidewalk which extends
of Milk street. The sidewalk, as laid out by the
city authorities, feet in width the outside
line thereof being within four and one-half inches
bricked as If the sidewalk extended clear to the
block except as follows: In the east end of the
consisting of one row of panes of class extending
one foot above and six inhces below the surface Of
the sidewalk And for the purpose of letting in the
light depression in the sidewalk along in front of
the window is constructed, eight and onehalf inches
in width from the window, and six and one-haif
inches below the surface SO that three and three
quarters inches of the width of the DEPRESSION are
within the sidewalk. and the remainder-four and
three-quarters inches-are outside of it. And this
plaintiff testified. he stepped with his right foot
while walking along that sidewalk in the daytime
Inc question, therefore, is, whether such depreS
sion on the extreme outside line of the sidewalk SO
near to the wall of the building on a cross street
over which there is comparatively but little passing
is defect which unlawfully impairs the reasona-
BILE safety of travellers there. Generally, such an
issue is pure question of fact depending upon the
special circumstances of the particular case; but
when the facts bearing upon the subject are I'M
questioned or are sustained by uncontroverted tes
mony, then legal effect is matter of law Todd vs.
Whitney, II Maine, 4S0. In the case in hand con-
sidering the undisputed affirmative facts together
with the absence of any testimony that this is an
lighting and ventilating of the basement of build
ing we are of the opinion that it is not defect in
the legal sense-king vs. Thompson, 81 Penn. St.
1863. Gushing VS.. Boston, 124 Mass, 437. The
PLAINTIFFS foot was not accidentally caught in this
narrow place and wrenched by being held there
against his will but he contends that his injury was
occasioned by stepping his foot into the place SO
much lower than his other to cause shock of his
system. If he had been walking in the opposite
direction and as near the curbstone as he was to
stanton block, he would have stepped down quite as
deep a depression into the street proper and per-
haps with like result. And to call the latter
defect, would condemn every foot of street on each
side of every street in the city and the curb round
every tree therein.
Motion sustained. New trial granted.
OXFORD COUNTY.
The March session of the s. j. Court for Oxford
county began at Paris HILL Tuesday with prospect
OF a long term. In the afternoon pauper case be-
tween the towns of Rumford and Byron was opened
is counsel for plaintiff and Hammons with Hastings
for defendant
o. *. Gerrish and Henry j. Bean were, on motion
OF Enoch Foster, Jr. admitted to practice law in
the courts of this State.