Linn v. Barker

• Court: Maine Supreme Court
• Writing for the Court: SPEAR, J.
• Citation: Linn v. Barker, 106 Me. 339, 76 A. 700, 20 Ann.Cas. 697 (Me. 1909)
• Decision Date: 23 December 1909
• Parties: LINN et al. v. BARKER et al.

76 A. 700

106 Me. 339

LINN et al.

v. BARKER et al.

Supreme Judicial Court of Maine.

Dec. 23, 1909.

On Motion from Supreme Judicial Court, Penobscot County.

Action by Robert D. Linn and others against George W. Barker and others. Verdict for defendants, and plaintiffs moved for a new trial. Motion overruled.

Action on the case to recover damages for the loss of the plaintiffs' buildings by fire and, caused by the alleged negligence of the defendants.

The declaration is as follows:

"In a plea of the case, for that the said defendants on the 28th day of April, A. D. 1905, were occupying and running mills known as the Bodwell Water Power Company's mills, situated in said town of Milford. And the plaintiffs aver that the defendants were using said mills for the manufacture of box boards and clapboards, and that there was adjacent to and west of said mills on the east bank of the Penobscot river a piece of land used by the said defendants as a common dump in said town of Milford, said mills and dump being located upon lands leased to the said defendants by the Bodwell Water Power Company and situated on the east bank of said Penobscot river. And the plaintiffs aver that the said defendants used said dump in common for the purpose of placing upon it the refuse from their said mills, and thereon burning the same, and on the day and year last aforesaid the defendants were so using said dump for piling the refuse of said mills, separately used by the said defendants, thereon and burning the same.

"And the plaintiffs aver that whereas according to the law and custom of the land hitherto used and approved, every person, copartnership, or corporation is bound to keep his, their, or its fire secure by day and by night so that no damage may accrue to his, their, or its neighbors for want of good care of his, their, or its fire.

"And the plaintiffs aver that they were on the day and year last aforesaid, and ever since have been, seised and possessed of a lot of land together with the buildings thereon situate in said town of Milford, on the westerly side of Davenport street in said Milford, about 200 feet easterly from said mills and said dump used as aforesaid by the defendants.

"And the plaintiffs aver that the said defendants on said 28th day of April, 1905, at said Milford, did rashly and inconsiderately kindle a fire in a pile of refuse piled upon said dump located as aforesaid. And the plaintiffs aver that there were around and about said dump and approximate thereto large piles of lumber belonging to said defendants and other people, and large piles of refuse which were dry and combustible. And the plaintiffs aver that the defendants took no precaution whatever to guard against the fire set by them on said dump on said day, and that they had no hose or men to guard against the spreading of said fire, and that notwithstanding all of which the said defendants did negligently and carelessly set said fire.

"And the plaintiffs aver that said defendants aforesaid wittingly kindled said fire on said dump and on land next adjoining to the plaintiffs' in said town of Milford, and at about the distance of 200 feet, more or less, from the plaintiffs' said land, and so negligently watched and tended said fire that the said fire came into the plaintiffs' said land and consumed their dwelling house, barn, and buildings thereon situate of the value of $3,500, and personal property contained in said dwelling house, barn, and buildings of the value of $500, all of which damage and injury to the property of the plaintiffs was through the negligence and carelessness and want of due care on the part of the said defendants, and through no negligence and want of due care on the part of the plaintiffs.

"And the plaintiffs aver that on said day and year last aforesaid said defendants did negligently and carelessly set fire to a large pile of refuse piled by them on said dump as aforesaid, although being cautioned not so to do, and that then and there, with full knowledge of the surrounding conditions, the velocity of the wind, and the dryness of the combustibles around and about said dump said defendants did negligently and carelessly set said fire as aforesaid, which spread from the dump behind the mills where it was set as aforesaid to the home of the plaintiffs as aforesaid, utterly destroying and burning the same to the ground, consisting of the dwelling house, barn, and sheds, and most of the personal property therein contained, all of which is to the damage of the plaintiffs, as they say, in the sum of $5,000.

"Yet though often requested, said defendants have not paid said sum, nor any part thereof, but neglect and refuse so to do, to the damage of said plaintiffs (as they say) the sum of $5,000."

Plea, the general issue. Verdict for defendants. The plaintiffs then filed a general motion for a new trial.

The case is stated in the opinion.

Argued before WHITEHOUSE, SAVAGE. FEABODY, SPEAR, CORNISH, and KING, JJ.

P. H. Gillin and Harvey D. Eaton, for plaintiffs.

H. H. Patten, Louis C. Stearns, Louis C. Stearns, Jr., and W. H. Powell, for defendants.

SPEAR, J. In April, 1905, there were two sawmills on the east side of the Penobscot in the town of Milford owned by the Bodwell Water Power Company, one of which was rented to George W. Barker & Son, the defendants. From underneath these mills a small narrow gauge railway track led out and down the east bank of the river for several hundred feet. Its object was to remove waste, and it was equipped with several cars for that purpose operated by hand. For 300 or 400 feet at the south end of this railway ran a stone wall which was from four to six feet high on the west side, next the river, and by the steepness...