Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-09-08
The Law COURT,
Decisions Handed Down
In Important Gases.
Matters Of Interest to People
," OF -Four Counties.
Cumberland, Penobscot, Somerset
And Washington Concerned. I
Cumberland County.
Martha G. COOlbrOth
CITY of South Portland


Rescript, Ono opinion) by King. J.
The plaintiff recovered verdict for
$l1o0, as damages for personal injuries
received on the evening of March 30,
1908, by reason of an alleged defect in
the sidewalk on the westerly side of
Elm street in the defendant city. The
case is here on defendants motion 90"
a new trial on the ground that the YER
dict is against the weight of the eVi-
dence, and that the damages are cX-
cessive. No question is raised as to
the defendants liability to maintain
and keep the sidewalk in repair, or as
to the notices given.
l. In the declaration the plaintiff
thus decribcS the accident and the al
legged defect: while she was lawfully
travelling over and along said highway
called Elm street, and while she was
exercising due care and was not negli-
gent. she stepped upon and against a
stone in the ground at a place near
the corner made by the intersection ri
the westerly side line of Elm street
with the southerly side line of Robin
son street, said stone projecting up
wards from the level of the sidewalk Il
great ulSldIltt " VII, Ten inches so
that the plaintiff was then and there
thrown violently to the ground and suf-
fered great bodily injury etc.
The evidence presented in behalf of
the plaintiff sustains this description of
the accident and the alleged defect
which caused it.
At the close of the plaintiffs case
counsel for defendant said: 'In de-
Tense we will not present any Witness
es, relying on the fact that the jury
have been out there and have seen the
place where they claim the accident
happened" In the brief Of defendants
counsel it is said: "The stone extend
ed above the ground in the shape of a
wedge and at it's highest point was
about eight inches above the ground.
1t had been placed there by the Street
Commissioner in 1907. for the purpose
Of saving the sidewalk from teams,
and was so near the driveway that Dr.
Rogers complained that he had run
against it several times in turning the
corner" A witness for the plaintiff
testified that he assisted the Commits
sioner in placing the stone, that it then
extended above the walk about eight
inches and inclined inward towards
Robinson street" and that it's position
was unchanged up to the time of the
trial
Whether this stone was q defect in
the sidewalk at the time Of the acct
dent was question to be determined
with reference to the special facts ana
conditions then existing there. such as
it's position, size and shape, the Ioca-
ton. construction and character of the
sidewalk, and the nature and extent of
the travel thereon. The jury exam
ined the place. and the conditions they
saw were admittedly the same as at
does not reproduce all the facts. condi-
tions and circumstances that the jurJ
perceived from their view, and which
were proper for their consideration in
deciding whether the sidewalk was de-
fective as alleged. This question was
properly submitted to the jury with
full and explicit instructions as to the
principles of law by which they were
to be governed in it's determination.
the presiding justice saying to them
among other things: You must there
fore consider the evidence in the case,
the knowledge you obtained by your
own view of the locality, the character
of the street. the nature of the passing
by, the character of the light, the time
of night, and all those things that go to
make up the circumstances OF the
case" They decided that the way was
defective as alleged, and this court.
upon examination of the record. can