Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1902-03-21
Judgement on the verdict.

NJ. Abbie Barnes vs. Inhabitants of
Rumford.
Rescript by Whitehouse, J.
The exceptions. . There was evidence
tending to show that the driver, who had
control of the carriage in which the plain
tiff was riding, had actual notice of the
condition of the road at that point, prior
to the accident. and had not given notice
of the defect to any one of the municipal
officers. One of the provisions of section
80 of chapter Is. r. s., says, IF the suf-
ferer had notice of the condition of such
way previous to the time of the injury,
he cannot recover of town unless lie
has previously notified one of the munich
pal officers of the defective condition of
such way" But there was no claim that
the plaintiff who was the sufferer in
this case, had any notice of the condition
of the way prior to the accident. This re-
quirement of the statute imposes upon
the traveller a distinct personal duty as
condition precedent to his right to recoy-
err for injuries suffered on account OF
such a defect. But with respect to the
discharge of this particular statutory oo-
legation, it would be an unwarranted
construction of the act to hold that the
sufferer was chargeable with the knowl-
edge of the driver of public carriage III
which the plaintiff was a passenger, and
thus responsible for his failure to notify
the municipal officers.
This express statutory duty is of course
clearly distinguishable from the obilga-
ton imposed by the doctrine of contribu-
tory negligence or concurring causes,
which, under the construction placed upon
the statute by our court, has uniformly
been held specially applicable to this
class of actions against towns Tor defec-
tive highways. Upon this question OF
contributory negligence the plaintlft was
held responsible for the conduct of the
driver. and in that respect she was
chargeable with his knowledge of the eX-
istence of any defect at the point where
the accident happened. But a breach OF
t..rxr .lrftN
eler to give to the municipal officers the
benefit of any knowledge he may nave OF
the existence of the defect IS suf1iclent -
defeat his right to recover independently
of the doctrine of contributory negligence
or concurring causes. In that respect the
s'sufferer'' in this case was not charge
able with the knowledge which the driver
had but which she did not have, ana was
not responsible for his failure TO commu-
nicate It to the municipal officers:
The declaration made by the driver out
of court was admissible for the purpose
of impeac ching his credibility as witness,
but could not be considered by the Jury
as evidence of the fact stated tending TO
Show how the accident happened. Inc
declaration must have been made three
Or four minutes after the accident nap
pened. The driver was not tnen per- per-
terminated His statement was not a
spontaneous exclamation accompanying
an act and tending to explain or nus
trate it. but a SIMPLE VI a b''e
event 1t was not part of the res sestae.
The town is made chargeabie win the
consequences Of the neglect of its officers
to make the necessary repairs alltf re
ceiving such notice of the defect, and IL
is immAterial whether the notice Is to
one of the officers for the municipal year
in which the accident occurred OF 1or
some previous year, provided the defec-
tive condition OF the way remained I'M
changed. ,,..
the Wav at the point of the accfdent was
reasonably safe and convenient within
The meaning of the statute as construed
by our court. was a question OF TACT NOT
entirely free from difficulty. a jury OF
practical men, majority OF whom mad
doubtless had experience IN repairing
highways. evidently found the road de-
fectiye for want of an appropriate rail-
ing or guard to prevent travellers from
driving into the ravine in the nighttime,
and we are unable to say that their con-
clusion was Enthusiastically wrong. The
evidence appears to have satisfied the
iurY that the municipal officers must
have observed the condition of the road
AT that point unless grossly inattentive
TO their dirty. and in the absence OF any
positive testimony to the contrary from
these officers the jury drew the Inference
that they had actual notice OF the defec-
tive condition which caused the accident
II is the opinion of the court that this
question of notice is attended with less
difficulty than that respecting the exls.
tence of a defect, and that the verdict
| of the Jury should not be disturbed or
| this ground.
Executions and motion oyerruled.
Judgment on the verdict.