Barnes v. Inhabitants of Rum-Ford

• Decision Date: 20 March 1902
• Citation: 52 A. 844,96 Me. 316
• Parties: BARNES v. INHABITANTS OF RUM-FORD.
• Court: Maine Supreme Court

52 A. 844

96 Me. 316

BARNES

v. INHABITANTS OF RUM-FORD.

Supreme Judicial Court of Maine.

March 20, 1902.

(Official.)

Exceptions from supreme judicial court, Oxford county.

Action by M. A. Barnes against the inhabitants of Rumford. Verdict for plaintiff, defendants except, and move for a new trial. Exceptions and motion overruled.

This was an action on the case, under section 80, c. 18, Rev. St., to recover for bodily injuries claimed to have been received by the plaintiff through an alleged defect in the highway in the defendant town. The defect claimed was the want of a railing at the point where plaintiff sustained her injuries. The defendant town defended mainly on the ground that the town, through its proper officers, did not have the 24 hours' actual notice of the defect required by statute.

Also that Thomas, the plaintiff's driver, who was carrying her for hire, and who owned and controlled the team, had actual knowledge of the condition of the way prior to the accident, and had not notified the municipal officers of the same.

That Thomas, the driver, was negligent in driving the horses, and did not exercise proper care; that the hole or V-shaped place into which the wheel dropped was made at the time of the injury by the slumping of the near horse, and the near wheel of the carriage breaking down the turf, and did not exist prior to the Injury.

The presiding justice, among other things, in charging the jury in regard to the several claims made both by plaintiff and defendant, charged as follows:

First in regard to 24 hours' actual notice: "The statute does not say actual knowledge in the sense that the town officers must have actually seen it * * * Or it would be competent to show that the selectmen were seen looking at it; that would be notice and knowledge both, for what a man sees he has notice of."

Second. As to the ruling in regard to actual knowledge of Thomas, the driver, as to the condition of the way, and not notifying the municipal officers previous to the accident, as claimed by defendant he was obliged by law to do, the presiding justice said: "Gentlemen, I overrule that contention of the defendant, and do not sustain it. The statute says that if the sufferer—that is, the plaintiff in this case—had notice of the condition of such way previous to the time of the injury, he cannot recover. It isn't claimed that the sufferer in this case had any knowledge of the condition, and she is not chargeable in that respect with the knowledge of her driver, so that you will have no difficulty on that proposition."

Third. As to declarations and statements of Thomas, the driver, made at the immediate time of the injury and early the following morning. The court said: "Mr. Thomas, the driver, was upon the stand as a witness, and, after he became a witness, the defendant as it had a right to do, put upon the stand several witnesses, who testified to declarations made by Mr. Thomas afterwards,— that is, that night, and some the next morning,—which it is claimed are somewhat Inconsistent with the story he has told here upon the stand, and weaken it, or impeach it as we say. Now, so far as any declarations made by Mr. Thomas that night to Mr. Richardson or Mr. Howe, or the next day to the other two parties, whose names I do not now recall, but whose depositions were read—I say, so far as any declarations he made that night to these parties or to other parties the next morning are concerned, they are properly before you for one single purpose, and only one purpose, and that is to attack or impeach the credibility of Mr. Thomas as a witness. Mr. Thomas is not a party to this suit; he is an outsider,—a bystander, so to speak,—and parties in court must not have their rights jeopardized by outside talk. Any outside talk they may make themselves is, of course, to be considered as weighing upon the principal facts at issue, but talk of other parties is simply hearsay, and if Mr. Thomas had not been introduced as a witness it would not have been competent for the defendant to show any of his declarations outside; but, inasmuch as he was a witness, the defendant had a right to show, if he could, that he had made varying and different statements elsewhere; but that should be taken into account simply in Judging of the weight to be given to Mr. Thomas' story. What he said outside that night or the next morning is not to be weighed, and must be carefully excluded as bearing upon what actually took place that night; it only bears upon his statements as a witness, and does not prove any different state of facts."

Fourth. The plaintiff offered testimony tending to prove that one of the selectmen and the road commissioner for 1898 (year prior to injury) were upon the way adjacent to the alleged defect, and had an opportunity to notice the defect. This testimony was seasonably objected to by defendant as not being admissible, claiming notice could only be given to officers of the town for the year the injury was received,—November, 1899.

The presiding justice overruled this objection, and admitted the testimony of the witnesses, subject to the exceptions of the defendant's, as will appear in the case.

To all these rulings and instructions, and refusals to instruct, the defendants excepted.

The writ was dated March 28, 1900, and was entered at the May term, 1900, ad damnum, $4,000. The plea was the general issue. Verdict for plaintiff for $1,304.33, October 17, 1900.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, FOGLER, and PEABODY, JJ.

Jas. S. Wright, for plaintiff.

Geo. D. Bisbee and Ralph T. Parker, for defendants.

WHITEHOUSE, J. The plaintiff recovered a verdict of $1,304.33 for personal injuries alleged to have been received through a defect in one of the highways of the defendant town, and the case is before this court on exceptions and a motion for a new trial as against evidence.

On the 1st day of November, 1899, in the evening, the plaintiff was traveling on the highway leading from Rumford Point to Andover by way of the covered bridge near the mouth of Ellis river. She was one of four passengers in a public carriage drawn by two horses driven by A. W. Thomas. The night was very dark and rainy, and when they arrived at a point opposite the southeast corner of the dwelling house of M. E. Barker, where the road bends around the steep bank going from Rumford Point to the bridge, the driver suddenly discovered that his near horse was traveling on the grass ground, and the next instant the horse slumped, the forward wheel dropped into a V-shaped hole about 21 inches deep, and 18 or 20 inches outside of the wheel tracks of the usually traveled road, and thereby the plaintiff was thrown out and injured.

It was not in controversy that there was an embankment on the side of the road where the accident happened, with a precipitous descent into a ravine the end of which, next to the traveled way, had assumed the shape of the letter V near the crown of the curve in the road. A culvert had also been built across the road at this point, extending Into the embankment about three feet beyond the wrought part of the road. The condition may be approximately shown by the following lines:

The plaintiff claims that the road was defective at that point, for want of a sufficient railing or guard of any kind to prevent those traveling in the nighttime from driving out over the bank into the ravine.

1. The exceptions. There was evidence tending to show that the driver who had control of the carriage in which the plaintiff was riding had actual notice of the condition of the road at that point, prior to the accident, and had not given notice of the defect to any one of the municipal officers. It was therefore contended, in behalf of the defense, that the plaintiff was barred of her right to recover by one of the provisions of section SO of chapter 18 of the Revised Statutes. But the presiding justice overruled the plaintiff's contention on this point, and instructed the jury that under that statute the plaintiff was not chargeable in that respect with the knowledge of the driver.

This ruling was undoubtedly correct. The statute in question says: "If the sufferer had notice of the condition of such way previous to the time of the injury, he...