Daily Kennebec journal., 1911-02-15

lcaused by sparks or cinders from the
idefendant's smokestack used in con-
Inection with its boilers at its steam
mill plant situated southerly and ad-
Joining the plaintiffs property. and
| that the defendant was negligent in
the construction. maintenance and
operation OF that smokestack
| The defendant does not contend in
this court that the finding of the jury
that the fire was caused by sparks
from its smokestack is so manifestly
wrong rs To authorize the law court to
set il aside but ii does confidently
urge that the finding that the defend
ant was negligent in either the con-
| jstruction. maintenance or opcration of
its smokestack is so manifostly against
the weight OF the evidence as to re-
qnire this court to set il aside
The principles OF law applicable to
the question of the defendants negli-
Gence are not in controversy. The mere
fact that the fire was caused by n
spark or Cinder from the defendant's
STACK IS not alone sufficient to estab-
liz h its liability. The defendant was
not an insurer Of the plaintiff's prop
erty from fire from its plant. It's duty
construction. maintenance and onera-
tlon OF its plant to prevent injury TO
the nIaihthl s.propertN. And the oues-
ton now presented is whether the evi-
""ncc JnstliieS the finding of the jury
that the defendant did not exercise
such ordinary care.
The presiding justice defined ordi
nary care to the jury as such care
as the ordinarily prudent man, mind
iul of himself ana of the rights of
others, would have exercised under the
same conditions and circumstances
Il definition fully in accord with the
decision of this court
u was not Cortetidef that the hoij !
orS ano snokestdck We're not a an
approved and standard pattern. They
" ere installed in 1890 and according!y
lad :een in use :or /. wears. The
stack was 81 feet nigh. From = caro-
iu. tNarnin&tion & the evidence We
arc Gnahl" to fiad any pr,of that
during the |. years this s,lokesta,E |
lod been il. use. prior To the fire in. |
N"lved in this case. 4 fire large c-I
small WAS set fI1rl Il SPARK or Gin
Ger that came from this stuck ThisI
W." rot q mere lack of proc. far the
Witness Were Sp officially inquired of |
with reference II that point. The /
officers OF the defendant company teSti-
lied thai they had Observed tile smoke /
stack when the mill was in operation, i
both by day and iy night. and ihevt
never know or heard OF a fire hoine /
set Icy a spark ar eindcr that came
from the stack.
To appreciate Fulir he weight mail
should be given IL the fact. that dur
log the constant use of this smoke I
stack, through that neriod of Il years
TO fire is shown t. have been set byl
q spark from il, il must BIZ borne In
IT ind that al about the stack and in
the millvard there was material oil
4 highly inflamablc character, chips.
saw dust. shaNings and fh,faber Clriea
ana drying. We udote. fss particular
Is applicable her, the language of
the Ne.r York court. No structure
is ever so made hat il nay mol he
made safer. Blt il is General rule
when IN aHrli21re. or machine. or I
structure. unt obviously dangerous.
has teen, tally used for years. and |
has uniformly proved adequate. safe !
and Convenient, its use ma! be cor
tirued without the imputation OF cul-
pahlc ir;nrudencc or tarelessness."
LaGir Y. r. & :. Il. II. 90. 1o6 y. Y
II.
Ih. h@rGen was on tho plaintiff to
establish by :. fair preronderence OF
the evidence that the defendant was
negligent in maintaining and using |
tn&t smckestaol under. I'll the exist |
ner ci,cpmt0rceS. IN other words. that |
an or 7iAariiy prod, ri tla!. in the Same
sit,tatioH in which III. d..erdant MS
would rot have tone 20.
1t viii not be useful here - attempt
IA detailed anllySi" Of tho volrmirous
evidence. bpt ;.ftei painstaking con
liberation Of il Az the court is con-
str.irsd To hold ,hGt the finding or
she jury t'at II" defenuant was not
in the exercise o. ordinary care il
he II ailtenarco and use of its smoke
stack is so manifestly contrary TO the
weight f he eVidercc that the YER
iirt must he set ASIDE
Motion sustained
Nc,lict set aside.