Perkins v. Inhabitants of Oxford

• Citation: 66 Me. 545
• Parties: WILLIAM T. PERKINS, administrator, v. INHABITANTS OF OXFORD. 1876.
• Decision Date: 25 February 1877
• Court: Supreme Judicial Court of Maine (US)

66 Me. 545

WILLIAM T. PERKINS, administrator, v. INHABITANTS OF OXFORD.

1876.

Supreme Judicial Court of Maine.

February 25, 1877

ON EXCEPTIONS.

CASE for loss of life of Mrs. Hannah Blake, the plaintiff's intestate, May 14, 1874, through a defective bridge, while she, with her husband, who was then living, but has since deceased, was removing from Oxford to Hebron.

The defective bridge was across the inlet of Matthews' pond a small stream dividing Hebron and Oxford. The evidence showed that four stringers spanned the stream, resting upon stone abutments, fourteen feet apart at the base, and somewhat more at the top; that the planking of the bridge was twenty-four feet long and fourteen feet wide; that while Mrs Blake was riding on her goods loaded in a hay-rack, drawn by four oxen, the up river stringer broke, and she was precipitated into the stream, and killed.

The defendants introduced evidence, tending to show that the load as it passed on to the bridge was driven so near the upper edge that the near wheel struck the plank directly over the upper stringer, and that the cart passed on to near the center of the bridge, when the stringer and ends of the plank on the upper side of the bridge broke under the near wheel and let it down.

The plaintiff introduced evidence tending to show that the breaking occurred as soon as the cart passed from the abutment on the Oxford side; that the outside stringer on the upper end of the bridge was more or less decayed and unsound, that in consequence of said decay and unsoundness, the end resting on the Oxford abutment, fell to the bottom of the stream, and the other end resting on the Hebron abutment fell therefrom about two feet; that when Mrs. Blake fell from the top of the load, a portion of the goods, including a stove, fell on to her, and that when she was taken out, she was dead.

The defendants introduced evidence tending to show that the Oxford abutment was built some five or six feet into the stream measuring at high water mark, and the Hebron abutment, but one or two feet; that the place where the wheel broke through the planks, was from four to six feet on the Hebron side of the center line of the stream.

And the plaintiff introduced rebutting evidence.

The defendants introduced the " act to incorporate the town of Oxford, approved February 29, 1829, the first section of which reads as follows:"

" Be it enacted by the senate and house of representatives in legislature assembled, that so much of the town of Hebron, in the county of Oxford, as lies south-west of Matthews' pond, so called, and the inlet of said pond, running from Paris, and the outlet of said pond, running into Minot, be, and hereby is incorporated into a town by the name of Oxford," & c., & c.

The counsel for the defendants requested the presiding justice to instruct the jury:

I. That unless the plaintiff gave notice to the selectmen of the defendant town, setting forth the plaintiff's claim for damages, and specifying the nature of the injuries received, before the commencement of this action, it cannot be maintained.

II. That as a matter of law, the south-westerly bank of the inlet of Matthews' pond, at high water mark, is the dividing line between the towns of Hebron and Oxford, and if they find the defect which caused the accident, on the Hebron side of this line, the plaintiff cannot recover.

III. That if they find the place where the cart broke through the plank on the bridge, was within the limits of the town of Hebron, they must find for the defendants.

IV. That if they find the bridge described in the plaintiff's writ, part in the town of Oxford, and part in the town of Hebron, and that the same had been supported and kept in repair, by said towns in common and undivided, that a stringer under the bridge, extending from one abutment to the other, was so rotten and decayed that each end fell from the abutments upon which it rested, an action for damages against the defendant town alone, for injuries to which the defective stringer contributed, cannot be maintained, and their verdict must be for the defendants.

V. That if the inhabitants of the defendant town, through its officers or agents, have for more than twenty years made repairs on highways, roads or bridges, outside of its corporate limits, such labor or repairs do not operate to change town lines or boundaries, or render them liable for damages caused by defects in such highways, roads or bridges.

The presiding justice declined to give the requested instructions in Nos. 1, 2, and 4, but gave No. 5, and No. 3, with this qualification: " If it was the breaking of the planks which caused the accident, and that breaking of the planks was within the limits of the town of Hebron, undoubtedly that result would follow; for beyond the limits of the town of Oxford, or thread of the brook, the defendants are not responsible for the condition of the bridge; so that the main and great question for you to pass upon, is, whereabouts was the defect which caused the catastrophe."

The verdict was for the plaintiff, for $700; and the defendants alleged exceptions.

J. J. Perry, for the defendants.

H. C. Davis & A. Black, for the plaintiff.

BARROWS J.

Action upon the case to recover for the benefit of the estate which the plaintiff represents, the damages given by R. S., c. 18, § 65, in cases of loss of life.

The accident by which the plaintiff's intestate lost her life was the breaking down of a bridge over " the inlet of Matthews' pond," described in the exceptions as " a small stream dividing the towns of Hebron and Oxford."

It was in controversy before the jury, whether the disaster occurred by reason of the breaking of a rotten stringer, as soon...