The Portland daily press., 1891-03-18

Joseph DUDE VS.. City of Lewiston.
Rescript. by Judge .Whitehouse:. The
and Ave other laborers In digging a trench
for pipe sewer. No snoring was employed
to support the sides of the trench anu when
the excavation had reached depth of eight
or nine feet one side caved In and large
quantity OF earth fell upon the plaintiff and
injured him.
The construction of sewers authorized by
the city council was under the general SUI
crew in which the plaintiff was at work at
the time OF the injury was under the imme-
date direction Of Edward Cloutier, who was
foreman in charge Of that particular job. In
the city tool house. 80 rods distant, was de-
posted quantity Of lumber suitable and
available for use in the construction Of sew
ers. Cloutier had full knowledge of this.
He had been directed by the street commits
sloner to pile the lumber there to be used for
that purpose when required.
The evidence discloses no omission of duty
on the part Of the street commissioner which
would render the city liable In this action
He discharged MS duty when he assigned to
the work an experienced and competent fore
man and furnished him with suitable and
sufficient materials for any appliances nee
essary for the safe conduct of the work. The
use and application of the materials formed
part Of the duty Of the workmen.
IL Cloutier's failure to place snoring
against 81. the side Of the trench where the
clearly the negligence Of a fellow servant;
and 1t Is settled law in This state that an en-
ployer is not responsible to an employee for
an injury received through the carelessness
Of fellow laborer.
What Cloutier was employed to do was a
lu"st,cn OF fact; the capacity In which he
acted was an inference OF law. As the facts
were not disputed the question submitted to
the jury was one Of pure law.
Motions and exceptions sustained.
YORK COUNTY.
Inhabitants Of Lyman VS.. Inhabitants of
Rescript by Judge Whitehouse. Action to
recover for. pauper supplies. The written
notice to the overseers of the defendant
town was signed by flames B. Roberts,
0yersee f.o Of the poor Of Lyman" it ap-
habitants Of the town other than Roberts
were chosen selectmen and oyerseers, and
James b. Roberts overseer of the poor for
the municipal year In question. No other
o,yerseers were chosen. This was suffi-
oticlal action as overseer of the poor was
binding on the defendant town. 1t is pro-
vided by section 10 of chapter "a, R. S., that
towns may at their annual meeting choose
not exceeding twelve legal voters to be over
seers OF the poor, and by section IL, chapter
8, that they shall choose three, five or seven
selectmen and overseers of the poor when
other overseers are not chosen. When the
kOWH eAeIclseS tn6 power conferred Dy the
former statute and chooses any number not
exceeding twelve overseers of the poor. the
direction In the latter section to choose three
five or seven, applies only to selectmen, and
not to overseers Of the poor, for the express
condition Is fulfilled, and other Overseers are
chosen. This more plainly appears from the
original enactments of 1921 in this state,
which were but slight notifications OF the
corresponding statutes In Massachusetts of
1856 and 1894.
The question of pauper settlement was
submitted to the jury under instructions to
which no exceptions were taken. There
was eyidence sufficient to authorize the ver-
dict of the jury. and the case discloses no
just cause for reversing their finding upon
that issue.
But excessive interest was evidently al
lowed. If the plaintiff shall, within 80 days
from the entry of this decision, remit 81 88
and accept judgment for $73.48 as of Sep
TENDER oath, 1889, the entry must be.
Motion and exceptions overrnled.