Crocker v. Inhabitants of Orono , 113 Me. 567 ( 1915 )

This is an action against defendant town for the recovery of damages alleged to have been sustained by reason of a defect in a highway. The case has been twice tried. The verdict for plaintiff rendered in the first trial was set aside upon motion of defendant upon the ground that upon the evidence a finding that defendant had failed to keep the highway, at the place of the alleged accident, reasonably safe and convenient as by statute required, was not warranted and also upon the ground of the contributory negligence of plaintiff. Crocker v. Orono, 112 Maine, 116. The second trial also resulted in a verdict for plaintiff which defendant moves may be set. aside upon the usual grounds. The evidence at the second trial does not materially differ from that adduced at the first trial, save in an attempt to set up a different defect from that described in the “fourteen days” notice and that described by plaintiff’s witnesses in the first trial. We discover nothing from a careful reading of the evidence to warrant a different conclusion from that reached in Crocker v. Orono, 112 Maine, 116, upon either point. If plaintiff was injured by the defect now alleged to have existed, it is sufficient to say that the great weight of the evidence denies its existence and moreover it is not the defect described with considerable particularity in the notice. As to the contributory negligence of plaintiff we find no occasion to alter the conclusion reached upon the first motion. 112 Maine, 116. Motion for new trial granted.

A. G. Averill, and G. E. Thompson, for plaintiff. C. J. Dunn, for defendant.