Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1895-04-13

Motion be sustained.
Peters, chief justice, and Emery, Has
kell, Whitehouse and Wiswell, associate
Justices concurred
Rescripis.
= The following decisions of the law court
received by Clerk of Courts Choate will be
of interest:
ANDROSCOGGIN COUNTY.
Eben j. Pulsifer, vs. John Berry ct al.
Whitehouse J.
/. The opinions Of experts are not
deemed admissible when the subject OF
the inquiry is one of general observation
or experience and not such as to require
any peculiar habits 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
question. The tendency of fire to spread
and cause damage is a matter of common
knowledge and experience, and the ques-
ton of proper safeguards to prevent it is
not one for expert testimony.
2. The usual practice adopted,
within the limits of the experience of a
civil engineer, in guarding fires kindled
in clearing and grubbing on railroad loca
tions cannot be deemed a safe criterion Of
the question of ordinary care involved; il
was immaterial and inadmissible in this
case. The gist of the action was negli-
gencP. 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 defen-
dants had been guilty Of negligence. L,
is impossible that there should be any
uniform practice or fixed standard OF
care with respect to duty so peculiarly
dependent upon varying circumstances
and conditions as that of guarding fire to
prevent its spreading. The number and
magnitude of the fires; the conditions OF
the soil, the state of the weather the di-
rections and force Of the wind, the rela-
ton, situation and exposure of the plain
tiff's property. would all be facts to b.
considered in the solution of the question
in every case. Not even a general custom
can be deemed a relevent fact in an actor
for negligence respecting any non-con-
tracted duty which is not performed
under fixed conditions.
Exceptions sustained.
ANDROSCOGGIN COUNTY.
Jarius Martin, VS.. Grand Trunk Rail
way. Whitehouse J.
Action for damages for injury to tht
plaintiffs wood and timber resulting
from fire communicated by a locomotive
engine in the use of the defendant com
pany.
The defendants responsibility is lin
tied to property 'aloDg the route" and ii
is to be deemed along the route" if it Ii
so near the railroad as to be exposed tt
the danger of fire from the engine. 1t il
distinctly alleged in the declaration that
the fire was in fact communicated by the
defendants engine to the plaintiffs land,
and that the growth of wood thereon was
greatly injured by burning. If it was ST
near the railroad that it in fact took fire
from the engine it must have been Sc
near as to be exposed to the danger OF
fire from the engine ?and must Therefore
be deemed to be situated ''along the
route" of the defendants railway. The
declaration is sufficient.
Exceptions overruled.
WASHINGTON COUNTY.
Peter Doyle ct ais. V. Patrick Whalen ct
ais.
Whitehouse, j.
The defendants and others were consti-
tuted relief committee of twenty, for the
purpose of making the generous contribu-
tions of the people, promptly available IL
relieving the suffering and distress
caused by the destructive fire of 1886, il
the town of PASSPORT. The result Of thesG
liberal donations Of money amounting t.
$3S, 600. was to create private charlt!
for the benefit of a designated class OF
persons, already well known or capable
of being readily ascertained. The com
mitteo became trustees for the execution
of private trust for the benefit of thu
sufferers by the fire. The contributions
were doubtless primarily designed for tbs
immediate relief of the needy and dis
tressed; but while the good faith OF thu
committee is not questioned the fund ap
pears to have been managed under the in
fluence of too rigid construction of it
primary purpose, and not in the spirit OF
helpful bene1icence and liberality contem-
plated by the donors. Their bounty
was limited to specified class Of persons.
then in being. They had no purpose te
create permanent fund for public ano
general charity in Easuport. The trust
ms ilOU ItliSu. IIt hpi'iiSaVi'h VI YIN
doctrine Of cy pres discovers a probable in
tention on the part of the donors thai
when the primary purpose OF the fund
was accomplished the surplus, If any,
should be 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 nc
definite purpose to employ this fund as
substitute for municipal taxation in tht
support of the town poor, but such PER
version of the charity will be the inevi-
table result, if the course adopted after
the fund was capitalized, shall be pursued
in the future. Such course is contrary
to sound public policy as tending to dis
courage similar acts of humanity and
Christian beneyolence in like exigencies
in the future.
!. The situation therefore requires the
court to assume jurisdiction of the mat
ter, and to appoint special masters IL
chancery who, after due notice of the
times and places appointed therefor, shall
receive applications from ell the sufferers
by the fire. hear evidence in regard to the
nature and extent of their respective
losses and sufferings, and thereupon de-
wise a scheme for the distribution, among
such sufferers, of the entire relief fnnd
a. 1o for that p1lrppsp consisting OF