Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1902-02-27
LAW COURT DECISIONS.
A New Trial Granted in One-Exeep'
tions OverruIed in Other.

A rescript drawn by Justice Savage
was received from the Maine law court
Monday in the Penobscot county case
Of Frank f. Moore Of Brewer, vs. Ed
ward Stetson ct al. The case was triea
a Bangor at the October, 1888, term Vi
the supreme court and the pialntih Mas
given a verdict for $500 damages. Inc
case went to the law court on excep
lions and by the rescript just rendered
i. ia sent back for a new trial. 1t will
probabfy go to the jury again at the
coming April term.
The action was one in which Moore
sued to recover damages for injuries re-
ceived by him while working at Stet-
sons marine railway in Brewer A
rock which was used for ballast fell
ard broke one of his legs. The jury
awarded him $500.
p. II. Gillin, Esq, and Charles J.
Hutchings. Esq. appeared for the plain
tin, and Appleton & Chaplin for the
defence. The rescript is as follows:
Ia a case where the owners Of a
steamer, desiring to make repairs upon
her, contracted with the owners or a
marine railway to take the steamer out
of the water upon the railway, for the
purpose Of repairs, and to return her TO
the water when the repairs were fin
ished, and the owners of the steamer
were to have the use and occupancy OF
the railway, while the repairs were be-
ing made and were to employ their
own men, and furnish their own mate
rails in making the repairs and were
to pay a certain sum per day for the
use Of the railway, ii is held that the
lot nf he
lessor and lessee, but rather that OF
licensor and licensee.
1t Is also held that the licensors owed
To the licensees and to the servants OF
the licensees engaged in the work of re-
pairs, the duty of seeing to it that their
railway and appliances, so far as they
were used in the repair Of the steamer.
were in a reasonably safe condition;
and that If the licensors failed to per-
form that duty, they are not relieved
from liability to servant OF the
licensees by the fact that the master
of the steamer in charge of the repairs.
knew the condition of the railway al
legged to be unsafe and by which the
servant was injured, and neglected to
notify the servant thereof.
But the court is of the opinion that
the evidence IN TINS case fdllS TO snow
negligence on the part of the defend
ant. The stone. the insecure condition
Of which. the plaintiff contends, pro-
duced his injury, was placed and main
tanned upon the bed-piece Of the rail-
way for the purpose Of ballast, and for
no other purpose.
The defendant had no reason to sup
pose it would be used for any other
purpose. The evidence fails to disclose
that the stone was not fitted or suffi-
GENTLY secured for the purpose for
which 1t was intended and used. Nor
is there any testimony that prior to, or
at the time when the steamer was
taken from the water, the stone was
not safely and securely placed and held
in position. 1t Is not contended that
the defendants knew that the stone was
liable to tip.
The court is further of the opinion
that from the position of the stone, its
irregular shape and great size, ii must
have been apparent to the plaintiff
that it was intended for ballast only.
and was not intended to be used as a
place for workmen to walk, stand or
work in the performance of their labor,
or for any purpose.
1t is familiar rule of law that when
a workman uses an appliance or instru-
mentality for purpose for which 1t is
not intended. the intended use being
apparent and obvious, he does go at his
own risk. In so using the stone for a
purpose for which IL was obviously not
intended. the plaintiff. in this case. as
sumed the risk of danger, and cannot
hold the defendants responsible for the
consequences. The verdict for the plain
tiffs. therefore, cannot be sustained.
Exceptions awarded. Motion sus-
tanned. New trial granted.
An interesting rescript, drawn by
Justice Emery, was received from the
Maine law court. Monday, i'm the Han
cock county case of Alvin II. Walsh ct
ais. VS.. Andrew c. Wheelwright The
case was taken to the full bench on ex-
ceptions and it involves some knotty
legal problems. The exceptions are
overruled. The rescript will be read
with much interest by the members of
the bar and others. 1t is as follows:
1. In real action by the heirs'of one
who died seized, evidence that a will
was left by the deceased without any
evidence of it's contents does not defeat
the action.
2. When a party, to prove title by
adverse possession, introduces evidence
of occupation by one whom he had
placed i'm possession as a purchaser I'M
der oral contract and who had in fact
paid for the land but was deceased be-
fore obtaining a deed; the declarations
Of such deceased occupant made on or
near the land during his occupation, to
the effect that such occupation was not
adverse to the owner by record, are adj
MISSILE evidence upon the issue wheth-
er the possession was adverse.
g. The rule that actual adverse oc-
cupation of part of a tract of land I'M
der a recorded deed is a constructive
adverse occupation Of the whole tract
covered by the deed, does not apply to
a record owner none of whose land is
thus occupied. Unless some part of his
own land is adversely occupied. the rec
ord owner is not affected by the fact
that his land is included with other
land in deed between strangers fol-
lowed by an adverse occupation of some
part of the other land not his The case
Noyes VS.. Dyer. % Me. 468 is overruled