Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1922-06-21
juries received by reason of an al

juries received by reason of an al
legged defect in a city street.
On April 6, last, the claimants
horse, being driven by himself, fell
into a manhole on Cony street. near
the store of E. E. Smith and was
SO seriously injured that it is claimed
that he will have to be killed. Notice
in writing of the injury was given
to the mayor on April II and the
matter was referred to me at the
last regular meeting of the council,
the claim as filed amounting to
5000. Claims against municipalities
for defects in highways are surround
ed by statutory restrictions, as a
necessary guard against the cupidity
of human nature.
To maintain a suit based upon a
claim of this sort the plaintiff must
prove that the municipality had "a
hours notice of the existence of the
defect, and that he had given notice
himself previous to the injury if he
had notice of the defect, also he must
within ii days afterward give a
written notice to one of the NUM-
for damages, and specifying the
nature of his injuries and the nature
ana location of the defect which
caused such injury.
At the threshold of the injury, the
question naturally arises whether
there was a defect in the highway
at the time. There is no question
that the horse got into the manhole,
exactly how it happened does not
appear the street commissioner with
whom | talked was of the opinion
that the horse caught one of his
calks on one of his shoes in the cover
of the manhole and in his language
clipped it" off. Mr.. Barton himself
couldn't tell how it was done, but
was very clear that it was done. On
the street commissioners theory of
the manner of the accident l am
very clear that a properly constructed
manhole should include a cover with
openings close enough together and
so locked to the frame that no horse
could get into it. | was informed
by the street commissioner that this
particular manholc cover did not lock-
| further learned from him that there
was a kind manufactured which did
lock. | therefore believe that this
manhole was defective in this respect.
There is no question that Mr.. Barton,
the claimant, knew nothing about this
whatever, there also is no question
that the manhole was installed under
the direction Of the highway de-
partment of the city, which fact, un-
der the ruling of the court in Buck
VS.. Biddeford 80 Me433, eliminates
the necessity of proof of "a hours
actual notice of the existence of the
defect.
Notice of the injury and claim for
damages was seasonably given, which
leaves only open the question of
damages.
The plaintiffs bill as filed calls for
$3.50. of which al but S25 is for
money actually expended in con-
nection with the accident, this bill
bears date Of May !. 1922. Mr.. Bar
ton tells me now, however, that at
the time of filing the bill he thought
the horse would recover, but that he
now believes that it will not and
VIII ultimately have to DO killed. If
this is true of course the city is
responsible for the value of the
horse.
| have talked with Or. Wakefield.
who examined the horse at the time
Of its injury and he was of the
opinion that 500 would cover its fair
value. | therefore recommend that
the sum of s14l.50 be paid to Mr..
Barton in fun settlement of his claim,
that is to say the sum of 500 plus
his cash disbursements as stated in
his bill
| would further recommend that
the highway department he instruct
ed to make the manholcs in our high
ways, safe, in accordance with this
opinion.
Respectfully submitted.
MELVIN E. SAIVTELLE.
City Solicitor.