Mason v. Inhabitants of Ellsworth

Howard, J., orally.—Dunham and Hinkley were inhabitants of Ellsworth. Dunham testified that he knew of the defect about a week before the accident, and that he drove over the place with an ox-cart every day. Hinkley testified, that he was in the habit of passing there with a loaded team, saw the defect a week before the accident, was afraid to let his horses go into the hole, lest they should “ get stuck.” He found the mud in the hole to be 15 inches deep. Dunham was assessed $2,60 out of more than $5000, tax. Hinkley was not assessed. The Judge ruled that, if the jury believed the testimony of these witnesses, the notice, requisite for charging the town, was made out. Was that ruling correct ? It was early found that the beneficial operation of the statute would be in a great measure defeated, if express notice to the town, in its corporate capacity, or to its officers, must be proved. It was then decided that the requisite notice might be implied. And it was held, that actual notice to some of its principal inhabitants would be sufficient. After-wards it became the rule, that knowledge of a defect by some of the inhabitants would answer, if they were capable to receive and to give notice to the town. It has not, perhaps, been settled how many of the inhabitants must have had the notice. We think it quite unimportant what amount of taxes [273] may have been assessed against such inhabitants. The notion which contemplated the notice to be given to some principal inhabitant seems to have been long disregarded. On the whole, there does not appear to be any valid objection to the Judge’s ruling. 2. The jury were instructed, that in their assessment of the damage, they should compensate the plaintiff for his suffering of bodily pain. We consider that ruling to be correct ,and that it is in harmony with the decisions in this and in other States, and that it is now the settled doctrine. Verrill v. Minot, 31 Maine, 299. Exceptions overruled.