Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-07-20
For the Lumbelmen Of the
Lower PsIlobscot.
Law Court Decides Against
i Great Northern Paper Co.


bangor, ME-, July AS.-Au TeSCfIPt
from the law court handed down to- |
day a verdict for plaintiff for $9S71.31
is given In case of Marsh & Aver VS..
Great Northern Paper Co. for damages
resulting from loss Of logs driven on
West Branch by defendant in floods of
December, 1901 and March, 1902. The
decision Is important, the case being
practically Identical with a number of
others which have been pending for
three years and which involve, in the
aggregate, 100000. The case has been
in the law court two years.
The rescript in full follows:
Penobscot county, Herbert w. Marsh.
ct al. VS.. Great Northern Paper Com
pany. Rescript, Powers, j.
Prior to 1901 by legislative charter
the Penobscot Log Driving Company
had the exclusive right and duty Of
driving all logs coming into the West
branch of the Penobscot between the
head OF Chesuncook lake and the East
branch. to any place at or above the
Penobscot boom when logs are usually
RATED. at as early period as prac-
ticable. In February. 1901. it contract
said boom during the driving season
OF that year all the logs which the log
company should have to drive under
its charter. By Section /. Chapter 293
Of the Private and Special Laws of
1901. the Legislature ratified and con-
firmed this contract and power and
authority necessary to carry out it's
terms and for its execution was con-
ferred upon the respective parties
thereto. The plaintiffs logs formed
part of the drive of 1901 and this suit
is brought to recover damages alleged
to have been sustained by the negli-
gence Of the defendant in making said
drive
Held, That privity of contract Is not
essential to the maintenance of the ac-
tion. By accepting the legislative act, as
1t did by accepting and undertaking to
drive the logs the defendant came under
a duty to the public. including the plain
tiffs. to drive the logs in accordance with
the contract.
That duty was co-eXtensive with the
contract, but as independent of 1t as IL,
instead Of referring to the contract, the
duties Of the defendant had been set
forth in the act itself.
The defendant drove the plaintiffs
logs not only in the performance OF the
terms Of Its contract with the Log Driv-
ing Co, but also in the exercise Of the
powers conferred upon 1t by the State
which carried along with them the CORE
spending duty to use due care and dill
gence in the exercise of those powers.
Under the terms Of the report in this
case upon the question of fact the issue
is whether the evidence is sufficient to
support a verdict for the plaintiff.
A ma jOrity of the court are of the
opinion that the evidence is sufficient to
support verdict in favor of the plain
tih's contentious and allegations. that on
account of the defendants misr1anage-
ment. either through negligence or mis-
feasance, this drive of logs was un-
necessarily delayed that 1T did not arrive
at IT'S destination In season to be AIRED
for and secured before the river froze
that as a result of this delay the loge
became separately frozen into the ice OF
the river so that they could not be in
any manner secured. that thcysthere re-
manned until portion OF 7plaint!n's
logs were carred down river and out to
sea during the December freshct of that
year. and another portion of them was
lost In the same manner IN the freshet
OF the next spring.
In determining the question of proxi-
mate cause the true rule Is that the in
jury must be the natural and probable
consequence of the negligence complain
ed OF.
1t is not necessary to prove that the
x1aFA ~ 80
binary prudence should have anticipated
the precise form in which the injury re
suited. 1t IL sufficient that after tho in
jury 1t appears to have been a natural
and probable consequence of the de-
PENDANTS negligence.
Closeness of casunl relation and not
time or distance is the decisive test OF
proximity of cause, although in some
cases time and distance may have an
important bearing upon the question OF
casual relation. Upon the other hand
1t is not sufficient that the negligent &C.
complained of may constitute one OF q
series of antecedent events without
which the damage would not have hap
pened. or that the negligence in question
afforded only an opportunity or occasion
for the injury or a mere condition OF 1t.
The loss OF the logs cannot be attrib-
nted to the magnitude of the freshets as
there was evidence from which a jury
wouldEbe justified in finding that the logs
would have been lost, unsecured as they
were, during any ordinary freshet which
might happen while they were in this
condition.
The early freezing of the river. in con-
Junction with the defendants negligence
whereby the logs were delivered muc!,
later than they might or should have
been. caused the plaintiffs loss. This.
however, was not an independent inter-
vening cause, but a natural condition.
the chance of the occurrence of which
should have been foreseen. Unusual eli
matte conditions occur so frequently that
In dmportant affairs they must be antici-
mated and guarded against.
In accordance with the stipulation of
the report,
Judgment for the plaintiffs for $9S7l.3
and interest from the date of the writ
The history of the Marsh & Aver
case AGAINST the Great Northern Paper
- q. the lumbermen refer to 1T, up to