Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-09-08

warranted by all the evidence pre-
scented to them, some of which is not
before us.
II. The jury were justified in find
ing that the plaintiff was in the eXer-
else of reasonable care at the time of
the accident She was walking rather
slowly" on the sidewalk where it was
proper for her to walk and where She
had a right to assume that no such de-
fective condition existed. There is no
evidence in the case tending to show a
want of due care on her part.
III. The defendant complains that
the amount of he verdict ($11OO) is ex-
cessive. Respecting her injuries DR..
Rogers testified that he found the
bones about the left elbow join so badly
shattered that 1t would feel as much
like a sack of crushed bone as ANY,
thing and that the usefulness of the
arm is very much impaired" She
was in the hospital three weeks ana
after she came out was unable to as
sist herself for seven or eight months
and then the most that | assisted my
self to was with the right arm, and |
don't noW DO much with this arm"
From careful examination of all
the evidence relating to the nature.
extent and permanency of the plain
tiff's injuries it is the conclusion of the
court that the amount Of the verdict is
not manifestly excessive
Motion overruled.
Reed September 4. 1909.
PenCbscot County. State of Maine. V.
Charlotte w. Fuller. Rescript.
Whitehouse, J.
In an indictment against the respond
end for obstructing town way by
erecting a fence across it, the follow
ing facts appear. The way in question
was legally laid out by the municipal
officers over two parcels of the de-
PENDANTS land and valid return of
their proceedings was made to the
town clerk showing that damages had
been awarded to the respondent on ac-
count of the taking of her land. SUBJ
ScGucntly the town voted to accept an
allow the way as laid out by the select
men. The respondent took an. appeal
to the Supreme Judicial Court from the
award of damages made to her by the
municipal officers and this appeal Is
now pending.
1t is contended in behalf of the de-
PENDANT that the construction or OPEN
ing of the road was illegal, first, be-
cause the se!ectmen undertook to have
the road constructed by virtue of Il
contract with a private party without
the authority of the vote of the town,
and secondly, because by reason of the
tendency of the defendants appeal
from the award Of damages, it\ is
claimed that no right had accrued to
the town to enter into actual occupa-
ton of the land for the purpose of
building a road and that the defendant
therefore was not liable for erecting a
fence upon her own land But the
road was duly located by the munich
pal officers and legally establi shed by
vote of the town. 1t was the impera-
tive duty laid upon the road commits
sioner of the town by public law to see
that the road was wrought and opened
for public travel. The selectmen as
sumed to make an oral contract with
certain citizens of the town for the
was done under the direction and su-
pervision of the road commissioner
and completed to his satisfaction.
Whether or not there had been created
legal obligation on the part of the
town to pay the price agreed upon
with the sclectmen for the services of
the contractors, it is unnecessary to
consider The road had been built I'M
der the direction of the road commits
sioner with the aid of the selectmen
and with the knowledge of the town.
1t was legally established and opened
for public travel after the lapse Of
sixty days and within the two years
allowed by statute and no further ac-
ton is shown to have been taken by
the town in relation to it.
The contention that the construction
or opening of the road was premature
for the alleged reason that the defen-
dant's appeal upon the question of
damages vacated the award made by
the municipal officers, is not supported
by the recent decision in Pierce V.
City of Bangor, 1O5th Maine, cited by
the defendant. In that case the de-
PENDANT took land owned by Mrs. Hay
ford as a cite for public library
building by virtue of sections 49, 80
and 81 of Chapter 4, r. S. The Just
compensation" to be paid by the city
for the land so taken has been estima-
ted by the municipal officers of the
city in the first instance, as provided
by section ninety, but the landowner
appealed from their award to the SUI
preme judicial Court in accordance
with section ninety-one and asked to
have the damages assessed by jury
in the manner provided respecting
town ways as prescribed in that sec
ton. Rut before the case was heard
Mrs. HayfOrd died and her legal rep
resentatives desired to prosecute the
appeal under the original petition. 1t
was held in Hayford V. Bangor, 103
Maine, 434, that as her right of appeal
was purely statutory and there was no
provision fer the survival and contin-
uance of such proceeding in the
event of her death. the petition could
not be further prosecuted by the rep
resentatives of the appellant, and must
be dismissed. This was the only
question involved and the only ques-
ton decided in that case. 1t was OBJ
served in the opinion, arguendo. that
Mrs. Hayford's right to have her
damages assessed by some constituted
tribunal upon notice and hearing was