The Portland daily press., 1883-04-23
Superior Court.

SATuRDAy.-Benjamin +. Chadbourne ct al "
Philip II. Brown ct al. This is an action in which
the trm OF Chadbourne & Kendall seek 10 recover
or the defendants damages account of injuries
their stock of wooden and gentlemen's furnishing
goods occasioned, as they allege, by the negligent
construction and maintenance of Sebago water pipes
In the Falmouth hotel, of which the defendants
were owners The plaintiffs occupied the store un-
der the hotel formerly occupied by Loring Short &
Harmon. Prior to the occupancy of the store by
the plaintiffs the defendants had leased the hotel to
Mr.. Gibson. The water pipe, which it is claimed
was defective, passed. through the basement of the
store occupied by the plaintiffs thence perpendicu-
larry to room in the third story of the building
used for the purposes of hotel. into tank which
supplied the servants closets and slop sink in the
room below In the night of the 2lst of December
last this pipe burst on the outside of bend which
it made at right angles between the ceiling Of the
water closet and the floor of the tank room and
the water run down upon the plaintiffs stock of
goods. Mr.. Chadbourn and Mr.. Kendall both tes-
tilted that prior to the injury they called Mr.. Philip
Browns attention to moist spots in the ceiling Of
their store indicating leak in the pipes above and
that he said he would have it attended to.
The lease under which Mr.. Gibson occupied the
hotel contained the following clause: 1.-THE said
Browns further agree to expend upon said hotel
premises during said term of five years, at such
time or times as said ellison may elect in repairs
and improvements, in plumbing, steam heating
laundry and painting, with the approval of said
ellison, and under the mutual supervision of both
parties thereto. sum not less than five thousand
dollars p Mr.. ellison testified that in September
prior to the accident he called Mr. John NJ Browns
attention to the bad condition of the water closets,
and the swelled and bulged condition of this pipe
and asked to have them put in proper shape; that
Mr.. Brown then refused, but subsequently gave his
workmen directions to repa the closets which was
done but this pipe, which subsequently burst, was
not touched. The plaintiffs introduced the testi-
mony of several plumbers who examined the pipe
soon after the overflow who testified that in their
opinion the burst caused by the pressure of the
water alone upon pipe already weakened by for
freezings, or what is called the WATER hammer
which is the iow caused by suddenly closing fau-
Get while the water is running at high pressure.
Several witnesses testified that the windows were
closed and everything all right and secure about
the water-closets and tank room the evening be-
fore the overflow, and that in the morning there
was no ice in the tank or around the pipe. Wit
hesses who arrived between nine and ten in the
morning tas.ifs seeing ur=r si.e iO0r q tho
water-cle&et, but the plaintiffs CLAIM that this
occasioned by opening the window after the acci-
dent was discovered
The defendants deny that there was any neglect
on their part in the care or maintenance of the
pipe; they deny that it in defective condition
unsuitable for the place and purposes for which
it intended. They also claim that the premises
were out of their CONTROL, being leased TO Mr. Gill
son. and that the injury oceasioned by the
lessness of the tenant ellison his servants in lev
ing the window open or in not providing proper
warmth for the apartments, whereby the pipe froze
and burst. Mr. p. H. Brown testified that after the
plaintiffs called his attention the leak in their
store he asked some of the employees OF the hotel If
there was leak In the pipes and they said no. Mr.
j, NJ Brown did not deny that ellison called his
tention the water-closet and pfpe but he claims
that he ordered his workmen to put the closet and
pipes ia proper repair and do whatever was neees
sary to make then. safe and suitable for use.
1t was shown by the testimony of Mr.. Eiehelber-
ger of the signal service that the temperature
ranged from 23o above on the morning of the 21sf
to 27o on the morning of the 22d and not below
&c above for four DAYS prior to the accident.
The plaintiffs testified that they had stock at
the time valued at thirty thousand dollars. Mr..
Horace p Storer and Charles A. Staples called
by the plaintiffs Immediately after the overflow TO
they did and agreed that the damage amounted to
$500. SO.
The Court instructed the jury in substance. that
If the burst occasoned by the negligence of the
to freeze the plaintiff could not recover, but that
If the pipe was In defective condition when the
hotel was leased, and Mr.. ellison requested the de
PENDANTS repair it, it their duty by the terms
of the lease to do so, and il through their negi-
gencs the pipe burst, they would be liable
The jury returned a verdict for the plaintiffs for
S3666, which lie about the appraisal of the damage
by Messrs. Storer Staples with the cost Of the
the overflow. The case viii go to the law court up
on exceptions and motion for new trial.
N. & H. b. Cleaves for plffs.
j. & E. NJ. Rand for defts.