Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1892-01-21

The following rescript and decision have been
received from the law court
HANCOCK COUNTY.
Franklin Land, Mill and Water Co VS.. vii
liam II. Card and William II. Card Va. Franklin
Land. Mil and Water Co.
Rescript-By Foster J. The first case is be
fore the court on motion for a new trial, the
second on exceptions.
lst-On March 5. 1890 William r. Card was the
owner and in possession of a mill on Aiderbrook
stream in the town of Franklin,-and the Frank
lin Land, Min and Water Co. was the owner of
dam at the outlet of Donnelfs Pond in said
Franklin. Cards mill was on the stream about
half a mile below the company's dam. ON the
day mentioned the dam at the outlet OF the pond
burst, thereby causing large quantity of water
to suddenly escape and flow down with great
Violence thereby causing damage TO Cards
property
Card claiming that his injuries were caused by
the company's negligence in maintaining and
managing their dam above him, commenced suit
to recover damages of the company. cross
action was shortly after brought by the com.
pany against Card to recover for the injuries
done to other property in town and which had
been paid for by the company, claiming that the
breaking of the dam was on account of the ncgli-
gence of Card in it, construction--he having con
struced 1t about three years prior to the accident
The principal contention between the parties
at the trial, as the evidence discloses, was as to
whether the cause of the giving away of the dam
was the faulty and insufficient construction by
Gard, or whether 1t was occasioned by negli
que care. Involved in this contention was the
question, who was in possession and manage
ment Of the dam at the time of Its break, and
during the winter previous to March ), $50.
Gard claimed that the company in posses
sion, and on the other hand the company claimed
that Card was in possession. All these conten-
tons were decided by the jury adversely to the
company. and in favor OF Card.
After a very careful examination of all the
evidence, We are satisfied that the verdict not
against the weight of evidence on these several
propositions, hut that 1t was in accordance with
great part OF the evidence introduced by both
sides. We think that If the accident was the
suit OF bad management and want of due care
the jury came to the correct conclusion in plac
Ing the responsibility on the company and not
upon Card. Neither do consider that they
erred In reference to the question of whether
not the dam was dcfectiNelg constructed. IL was
for the jury to decide upon all the evidence
whether the cause of the break was the faulty
construction Of the dam, the negligent and
improper care OF It There wa- ample e1idence
upon which to base their verdict. notw ith-taud-
Ing the testimony -umcw hat conflicting. We
-ee no reason frr disturbing their verdict.
IT the counsel under the third clause of his
motion for a new trial relies upon newly dis
covered evidence there l. not sufficient to
rant the court In granting the motion II h.
claims on the ground thar the court refused 10
grant him further tim" l." rroCurv the tendance
oi witue--, II i enough 8" say that that wa
matter wholly within the discretion OF the Pre-.
siding Juigc and hi decision T. not e. ~.
ter-"d hy u either on exceptions or on motion
Tor new trial
Evidence that comes to the knowledge Of the
using parry e'i"rt the case T. argued l. NOT
newly discovered Hagar In, Co ~ Mane.
$E Ana " u fall within THAI Il must w uA
t"fiAl. and such a. 20 induce a reasonable pruha
tiliiy that q would On a Second trial De- pro.
durhfr ~ Different result thc merits
otuil- y I"riAn - Maine, ~ STAT, y stain.
= Maine g.!
2h-lhr exceptions relate to mattrT- wholly
within ih' d-,r MON ut re-. 14-ti,, lrr-liin- and
rratr tn The question ~ tAr qual lucAtiau ~ the
~if u"-- ~ ODD wa- introduced d. Au ,Nt+.rt The
d'tl-tuH rt ths court In such matter ~ p general
rsl', T. unal There s. NO reason shown hrrr for
reytr-iuE She decision 81 the presiding Ju-trr.
Motion and exception. overrui.d