Whitman v. City of Lewiston

• Decision Date: 18 May 1903
• Citation: 97 Me. 519,55 A. 414
• Parties: WHITMAN v. CITY OF LEWISTON.
• Court: Maine Supreme Court

55 A. 414

97 Me. 519

WHITMAN

v. CITY OF LEWISTON.

Supreme Judicial Court of Maine.

May 18, 1903.

(Official.)

On Motion from Supreme Judicial Court, Androscoggin County.

Action by Susan R. Whitman against the city of Lewiston.

Action on the case, under Rev. St. c 18, § 80, to recover for bodily injuries sustained by plaintiff by reason of the overturn ing of the one-horse open wagon in which plaintiff was traveling with her husband, who was driving. The wheels next to the northerly sidewalk curbing struck a pile of dirt extending into the traveled portion of Main street, in Lewiston. Both occupants of the wagon were thrown out. The accident occurred on a clear, moonlight night, four days before the full of the moon, about 10 minutes before 9 o'clock. The horse was totally blind. Verdict for plaintiff. Motion for new trial sustained.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and SPEAR, JJ.

Tascus Atwood, for plaintiff.

A. T. L. Heureux, City Sol., and Ralph W. Crockett, for defendant.

WISWELL, C. J. While the plaintiff was being driven by her husband in an open wagon drawn by one horse along one of the public streets of Lewiston, the wheels upon one side of the carriage came in contact with, and went onto, an obstruction in the street, so that the carriage was overturned, the plaintiff, as well as her husband, thrown out, and she sustained some bodily injury. In the trial of the action to recover damages for the injuries sustained by reason of the alleged defective condition of the street, the plaintiff recovered a verdict. The case comes here upon the defendant's motion for a new trial.

Assuming, without deciding, that the jury may have been authorized in its finding that the condition of the highway was defective in the respect complained of, we come to the equally important question as to whether or not the jury was also authorized in its finding, necessarily involved in the verdict, that the defective condition of the highway was the sole cause of the accident; because it is well settled in this state that in this statutory action, if the negligence of the plaintiff, or even if any other efficient cause for which neither the plaintiff nor the municipality is responsible, contributes to produce the injury, the action cannot be maintained.

The defective condition complained of was a quantity of earth taken from an excavation made for the purpose of obtaining connection with the public sewer, and left upon the...