The Portland daily press., 1895-04-15
SUPREME JUDICIAL COURT.
The following decision has been sent
down from the Law Court.

~
down from the Law Courl'
WASHINGTON COUNTY.
Peter Doyle ct ais. in Eq., VS.. Patrick
Whalen ct ais. r,
Rescript by Whitehouse, FJ.-The de-
PENDANTS and others were constituted
relief committee of twenty Tor the pur-
pose of making the generous contrlbu-
tions of the people promptly avalisple IN
relieving the SUFFERING anu uistress
caused BY the destructive nre OF 1856 in
the town of Eastpcrt. The result of these
liberal donations of money, amounting
to 1913. OOO. was to create private charity
for the benefit of designated class of
persons. already well known or ca pable
of being readily ascertained The CON-
mittee became trustees for the execution
OF private trust for the peieul OF the
sufferers by the fire. The contrlbutlops
were doubtless primarily designed for
the immediate relief of the needy and
distressed: butswhile the good faith of
the committee is not questioned, the
funds appear to have been managed I'M
der the influence of toosrlgld construc-
tlon OF its primary purpose ANA not IN
the spirit Of helpful benetcence and lib
erality contemplated by the donors.
Their bounty was limited 10 speclhed
class of persons then in being. They
had no purpose to create a permanent
fund for public and general charity in
PASSPORT. The trust has not tailed. The
application of rule of construction an
alogous to the doctrines of cy pres
discovers proba BILE intention on tina
part of the donor that when the primary
purpose of the fund was accomplished,
the surplus, if any, should he used to
repair the losses as well as to relieve the
immediate distress Of the sufferers by
the fire.
1t may be true that there has been no
definite purpose to employ this fund as
a subtitute for municipal taxation in the
support of the town poor, but such per-
version of the charity will be the inevi-
table results, if the course adopted after
the fund was capitalized, shall be pur-
sued in the future. Such course is
contrary to sound public policy as tend
ing to discourage similar acts of .human-
ity and Christian benevolence in like
exigencies in the future.
The situation therefore requires the
Court to assume jurisdiction of the mat
ter, and to appoint special masters in
chancery, who after due notice OF the
times and places appointed therefor,
shall receive applications from all the
sufferers by the fire, hear evidence in
regard to the nature and extent of their
respective losses and sufferings, and there
QpOA Qctl5o q SCu0tuC .lOL uAO
tions, among such sufferers, of the entire
relief fund available for that purpose,
consisting of the $40, 600 invested in East
port bonds. with all income thereof not
expended by the defendants prior to the
service of this bill, and also OF the pro-
ceeds from the sale of the relief building.
The masters may be justified in consid-
ering not only the actual distress and
amouG of loss suffered by each. but the
s,,t bo of
tailed uponsthe rich and upon the poor,
By the same amount of loss, and such
other cognate matters as in their good
Judgment and discretion will aid in
reaching conclusions most in harmony
with the probable wishes and purposes
of the donors under these circumstances;
such conclusions to be reported to the
Court for acceptance and approval.
j.. G. Downs of Calais, Benj. B. MUIR
ray of Pembroke and Ruel Small of
Deering. are to be appointed masters.
Bill sustained.
Decree in accordance with opinion.
ANDROsCOGGIN COUNTY.
Jarius Martin VS.. The Grand Trunk
r. r. Co. S
Rescript by Whitehouse, J.-Action for
damages for injury to the plaintiffs
wood and timber resulting from fire
in the use Of the defendant company.
The defendant''s responsibility is
limited to property "along the route:
and it is to be deemed "along the route'
i it is so near the railroad as to be ex-
posed to the danger of fire from the en-
CINE.
1t is distinctly alleged in the declara-
ton that the fire was in fact commune
Gated by the defendants engine to the
II fig Iopd and tha oVOypth nj
wood there was greatly injured by burn
ing. If it was so near the railroad that
it in fact took fire from the engine it
must have been SO near as to be ex-
posed to the danger of fire from the en-
CINE, and must" therefore be deemed to
be situated "along the route" of the de-
fendant's railway.
The declaration is sufficient.
Exceptions oy erru ed.
Eben J. Pulsiter VS.. John Berry, ct al.
Rescript by Whitehouse 1.-THE opinion
of experts are not () deemed admissa BILE
where the subject of the inquiry is one
of general observation or experience, and
not such as to require any peculiar hab-
It's or study in order to understand it.
The management of fires burning in
heaps of brush and lingering in piles of
brands, does not present such a ques-
ton. The tendency Of fire to spread and
cause damage is matter OF common
knowledge and experience, and the ques-
tion of proper safeguards to prevent it is
not one for expert testimony.
(2) The usual practice" adopted,
within the limits of the experience of
civil engineer, in guarding fires kindled
in clearing and grubbing on railroad To-
cations, can not be deemed safe critic
ion of the question of ordinary care in
volved, it was immaterial and admissa-
BILE in this case. The gist of the action
was negligence. 1t was simple question
of fact for the jury to determine whether
under the particular circumstances and
conditions shown to,,exist in this case,
the defendants had been guilty of neg
ligence. 1t is impossible that there
should be any uniform practice or fixed
standard of care with respect to duty
so peculiarly dependant upon varying
circumstances and conditions as that of
guarding firesto prevent it's spreading
The number and magnitude of the fires,
the condition of.the soil. the state of the;
weather, the direction and force of the
wind, the relative situation and expos
ure of the plaintiffs property, would
all be factors to he considered in the So
luton of the question in every case. Not
even general custom can be- deemed ID
revnalantlfact in an action for negligence
respecting any non-contractual duty
which is not performed under fixed con-
ditiops ~ u