Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1921-12-07
RESCRIPTS FROM
THE Law COURT
Handed Down in Cases Of Rose
=. Harmon vs. the City of
Portland; and Anthony o.
Fernald VS.. Edward N.
French

Two rescripts, both from Cumber-
land county. were handed down by
the law courtTuesday.
The exceptions of the plaintiff are
overruled In the case OF Rose E.
Harmon vs.. the City of Portland.
The rescript which was drawn by
Associate Justice Albert M. Spear of
Gardiner reads as follows:
On the 2Sth day of March 1910.
the plaintiff met with an accident on
a cross walk in the city Of South
Portland by stubbing her toe, in the
night time. against the end of
plank that projected above the sur
face OF the cross walk some where
from four to eight inches. At the
close ~of the plaintiffs evidence the
court granted a motion for a nom
suit. to which the plaintiff filed ex-
ceptions. and this is the way the
case comes up. The only question
involved is. whether there is sufficient
evidence, If fully believed by the
jury, to sustain verdict in favor
OF the plaintiff If SO found.
The trouble with the plaintiff case
ments. The statute places a heavy
burden upon the plaintiff in highway
cases against town for damages.
First the plaintiff must prove "a
hours actual notice to one of the off,
Gals named in the statute, and also
the IA days notice of the accident.
There is vet another notice to be
complied with that proves fatal to
the plaintiffs case, upon her own
testimony. This requirement is:
And if the sufferer had notice of
the condition of such way previous to
the time of the injury he cannot re-
cover of town unless he has pre-
viously notified one of the municipal
officers of the defective condition of
such way" 1t will be observed that
this notice must be given by the
sufferer the plaintiff, to one of the
municipal offices, not to a municipal
officer the street commissioner or
their substitute. as the other "a hour
actual notice Of the defect may be
given.
We find no evidence whatever of
such notice.
Exceptions Overruled.
Automobile Case
In the case of Anthony .. Fernald
VS.. Edward n. French, the motion
of the defendant is sustained and Il
new trial granted. The rescript was
drawn by Associate Justice Spear.
This case involves an automobile
accident. The plaintiff recovered a
| verdict and the case comes up on
the usual motion.
The rescript says in part:
Held. THAT this reckless con-
duct on the part of the plaintiff s
car is established by the plaintiffs
own evidence.
Held. >. That up TO this time
| there is no evidence tending to prove
| the negligence of the defendant eX-
eept that collision took place.
Held. 3.-That the defendant was
not guilty of negligence.
/ Held 4. That he was not guilty
of subsequent negligence.
Held. 5. That it should be de-
clared as rule of law, that the
movement of motor vehicles under
| the conditions and circumstances of
the present case, that Il car intend
ing to cross the street in front of
another car, having the right Of way,
should SO watch and time the move
ments of the other car as to reason
ably insure itself of a safe passage,
either in front or rear OF such car,
either to the extent Of stopping and
waiting, if necessary.
| Held. 6. A new trial should be
| granted