Oxford Democrat. [volume] (Paris, Me.) 1833-1933, 1902-03-25
BARNES VS. RuMFORo.
VERDICT FOR PLAINTIFF SUSTAINED
BY LAW COURT.

A rescript was received last week in
the case of NJ. Abbie Barnes VS.. lnhab-
itants of Rumford. This was an action
for damages on highway, and was hrst
tried at the October term in 1900. The
Jury disagreed. 1t was tried again last
October, and a verdict of Sl3O4.33 for
plaintiff was returned. 1t was carried
to the law court on exceptions and
motion for new trial. The court over
rules the exceptions and motion and
orders Judgment on the verdict, thus
ending the case. Wright for plalntln,
Bisbee 4 Parker for defence. The re-
script is as follows:
NJ. Abbie Barnes VS.. Inhabitants OF
RnmfoTd.
Rescript by Whitehouse, j.
The exceptions. There was evidence
tending to show that the driver, who had
control of the carriage in which the
plaintiff 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 proyis-
ions of section so of chapter Is, K. s.,
saws: 'sIf the sufferer had notice of the
condition of such way previous to the
time of the injury, he cannot recover OF
a town unless he has previous notified
one of the municipal officers OF the de-
fective condition of such way" But
there was no claim that the plalntlfi,
who was the sufferer" in this case, had
any notice of the condition of the way
prior to the accident. This requirement
of the statute imposes upon the traveller
a distinct personal duty as a condition
precedent to his right TO recover for IN
juries suffered on account OF such de-
feet. But with respect to the discharge
of this particular statutory obligation,
it would be an unwarranted construction
of the act TO hold that the sufferer was
chargeable with the knowledge of the
driver of public carriage in which the
plaintiff was a passenger, and thus re-
sponsible for his failure to notify the
municipal officers.
This express statutory duty is of
course clearly distinguishable from the
obligation imposed by the doctrine OF
contributOry negligence or concurring
causes, which, under the construction
placed upon the statute by our court,
has uniformly been held specially APP
plicable to this class of actions against
towns for defective highways. Upon
this question of cOntributory negligence
the plaintiff was held responsible for the
conduct of the driver, and in that re-
spect she was chargeable with his
knowledge of the existence of any defect
at the point where the accident happen
ed. But breach of this distinct statu-
tory duty of the traveller to give to the
municipal officers the benefit of any
knowledge he may have of the existence
of the defect, is sufficient to defeat his
right to recover Independently of the
doctrine of eOntributory negligence or
concurring causes. In that respect the
sufferer in this case was not charge
able with the knowledge which the driv-
or had but which she did not have, and
was not responsible for his failure to
communicate it to the municipal officers.
The declaration made by the driver
out of court was admissible for the pur-
pose of impeaching his credibility as a
witness, but could not be considered by
the jury as evidence of the fact stated
tending to show how the accident hap
pened. The declaration must have been
made three or four minutes after the
accident happened. The driver was not
then performing any act. The occur
renee had terminated His statement
was not a spontaneous exclamation &C
an act and tending to ex-
plain or illustrate it, but simple MARIA
ton of a past event. 1t was not part
of the res gestae.
The town is made chargeable with the
of the neglect of its officers
to make the necessary repairs after re-
ceiving such notice of the defect, and II
is immaterial whether the notice is TO
one of the officers for the municipal year
in which the accident occurred, or for
some previous year, provided the de
fective condition of the way remained
unchanged.
The motion. Whether the condition
of the way at this point of the accident
was reasonably safe and convenient
within the meaning of the statute as
by our court, was question OF
fact not entirely free from difficulty.
jury of practical men, majority of
whom had doubtless had experience in
repairing highways, evidently found the
road defective for want of an appropriate
railing or guard to prevent travellers from
driving into the ravine in the night time,
and we are unable to say that their con-
clusion was Enthusiastically wrong. The
evidence appears to have satisfied the
jury that the municipal officers must have
observed the condition of the road at
that point unless grossly inattentive to
their duty, 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 defect
i've condition which caused the accident.
1t is the opinion of the court that this
question of notice is attended with less
difficulty than that respecting the ex-
istence of defect, and that the verdict
Of the jury should not be disturbed ON
this ground.
Exceptions and motion oyer-ruled.
Judgment on verdict.
Three gifts to Bowdoin College were