Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1921-11-04
Rescripts in Penobscot
and Cumberland Cases


and Cumberland Cases
The law court Thursday handed
down two rescrpts, one, from Cum
/ berland and the other from Penobscot
county.
CUMBERLAND CASE
In the Cumberland county case OF
Ernest II. Dyer VS. the Cumberland
County Power and Light Co, the mo-
ton of the defendant on the ground
that the damages are excessive is
sustained unless the plaintiff within
! 80 days after the receipt Of the
| rescript by the clerk remit all Of the
verdict over $500. The motion of
! the defendant on the ground of new
! IL discovered evidence is denied.
/ The rescript, which was drawn hy
Associate Justice Scott Wilson OF
! Portland is as follows:
Tpon the motion by the defendant
: for a new trial on the usual grounds
and also upon newly discovered evi-
dence. Held:
/ That as TO the manner in Which
; the accident occurred, the jury must
{
contention and in this respect the
iury's finding is not so manifcstlE
wrong as to warrant the verdict be
! ing disturbed by this Court.
That the defendant company owed
! a duty TO travellers lawfully upon the
! highway to keep a lookout and eXcr-
1 else all reasonable care to avoid in
juring them.
That in view OF these conclusions.
the defendants servant operating the
electric car must either have seen the
plaintiff in his position Of pe"L and
| n1isiudged his distance from the
track. or in the exercise Of due care
should have discovered him in time
to have avoided the accident.
That in applying the rule of the
"Iast clear chance" it is not neces-
sary for the defendant to have actual
knowledge of the plaintiffs peril, if
he owed the plaintiff a duty Of keep
ing a lookout to avoid injuring him.
and in the performance of that duty
should have discovered the plaintiffs
peril in time to have avoided the ac-
| cident:
IN guilty of contributory negligence
in stopping his truck so near the
tracks of the defendant and duty
also rested upon him to keep look
ont for the car he knew was behind
him, the jury may have found, II
the motorman could have stopped
the electric car, as he testified he
did within a distance of one foot,
or even a greater distance, after dis
covering the plaintiffs danger. that
! after the plaintiff could no longer
cXtricate himself from his rerilous
, position. the motorman could still
have stopped the car in time to
avoid the accident.
| That it must be presumed that
| proper instructions were given the
| Jury as to the rights of the parties
under these conditions and while
| this Court might have reached q
| different conclusion upon the eVi
dence. it is unable to say, as upon
| the other branch of the case. that
a finding of the jury that the de-
PENDANT had the last clear chance
! of avoiding the accident was clearly
wrong.
/, That the alleged newly discovered
| evidence. upon which the second
motion of the defendant is based.
is purely cumulative and it cannot
be said that il -prcscntcd to another
Jury N would arrive at a different
verdict.
That upon the question of dam
ages. the Court after carefully con
sidering the evidence is of the opin
ion that they are clearly excessive
and unless the plaintiff remit all
over seventy-five hundred dollars,
the motion of the defendant must
be sustained
4 PENOBSCOT CASE
In the Penobscot county case Of
Mary f. Tarbox. petitioner. vs.. Har-
ry G. TarboX. the exceptions of the
plaintiff are sustained.
The rescript. which was drawn by
Chief Justice Leslie G. cornish of
Augusta. is as follows:
Section II of Chapter 60 of the
Revised Statutes provides that
within three years after Judgment
on a libel for divorce. a new trial
may De granted as 70 tHe divorce,
when the parties have not cOhabited
nor either contracted new mar
riage since the former trial" etc.
Held. considering the history and
purpose of this stacute. a petition
for a new trial filed within the
Fthree-year period. even though final
Judgment thereon is not entered I'M
til after the expiration of that time.
is not barred by this limitation.