The Portland daily press., 1881-06-02
AN IMPORTANT DECISION.
Judge Bonney's Opinion in the McCar-
thy Case

In the case of Charles Mccarthy VS.. the
York County Savings Bank, the following is
the full text of the decision by Judge Bonney:
This is an action on the case for injury to
stock of goods by the overflow of Sebago
water; ad dam mum $1,000 The defendant
bank ON the 9th day of July, 1880, was the
owner of block of stores on Middle street, in
the city of Portland, and the plaintiff occu-
pied one of the stores as the tenant of the de-
PENDANT. Directly over this store was a room
occupied by one Allen Fisk, also tenant of
the defendailt, Tor the manufacture and bot
thing of bitters. In this room wash bowl was
set supplied with Sebago water. Sebago water
was introduced into the building by the defen.
dant bank in July, 1878. The faucet through
screw faucet without any self-acting stop-cock.
The quantity of water which passed through
the faucet for any given time depended upon
the head and consequent pressure. The pres
sure was greater at this point than in the more
elevated parts of the city and the greatest
pressure occurred during the night when less
use OF the water was made by the water takers
in other sections of the city. The apertures
in the bowl for the outflow of the water We're
not OF sufficient size to carry away the water
which ordinarily existed in the night time
There was no metal pan Under the bowl for
the purpose of catching the overflow, and from
which, by means Of a gutter, the water could
be carried to safe place.
The defendant bank in the construction and
repair of the apparatus employed a plumber tf
good reputation for skill as workman, but
another plumber of like reputation testified
that there were not great MANY faucets in
that section OF the city that would not over
flow the bows
further find that the defendant bank after
the plumbing had been done had no knowledge
OF its insufficiency. nor did anyone at any time
under its direction ever make investigation to
ascertain whether or not the apparatus was
sufficient to carry ay the water. Fisk hired
said room of the bank without any written
lease, paying his rent therefor monthly .There
had been no conversation about water between
FISK and any person representing the bank
from the time of the commencement of the
tenancy until after said 9th day of July. Fisk
found the water and the apparatus for its use
in the room when he entered into possession.
and used them. The Water Company never
called upon him for payment OF water rate nor
did the bank ever specially demand any COM
penSation for the use Of the water and appara-
tus, but it was admitted that the bank paid
the Water Company for the water used in this
room. The bowl had been used by Fisk dun
ing his tenancy prior TO said 9th of July. Two
cork shoppers had become lodged in the over
flow pipe which were allowed to reach there
through the negligence of Fisk or his servants,
but find that after their removal subsequent
to said 9th day of July the means for the over
How of the water were not sufficient to carry
it away as it came from the faucet under the
pressure hereinbefore referred to.
Late in tho afternoon of July 8, 1880, the
main pipe burst in the street and the water
was shut off from the defendants blocks and
other buildings in the vicinity. In the evening
of that day Fisk went to the faucet to obtain
water and opened the same, but found no water
on account of the shut-off Fisk claimed at
the trial that he closed the faucet but find in
view of all the circumstances that he negli-
gently left the cock open. Sometime before
morning the break in the main pipe was re-
paired and the water let on. The water over
flowed the BOWL flooded the plaintiffs store
and injured his stock of goods.
Upon these facts rule as matter of law as
follows
1st-That having introduced water into the
block, it was the duty of the defendant in the
construction of the apparatus to provide ade-
quate means for the outflow of the same COM
ing into the bowl through the open faucet
under the pressure ordinarily existing in the
nighttime.
2d-That the defendant bank was negligent
in the construction Of the water apparatus.
3d-That the negligence of the defendant in
concurrence with the negligence of the tenant
Fisk, was the cause of the plaintiffs injury.
4th-That the defendant is liable for the in
jury in this manner caused.
Decision for plaintiff for $6S3.26.
Putnam for plaintiff. Lunt for defendants.