Bean v. Maine Water Co.

Emery, J. The defendant company was maintaining a hydrant in the sidewalk of a public street in Calais, not on either edge of the walk so as to be out pf the way of the foot travel, but so near the middle of the walk as to be a vexatious and dangerous obstruction to the travel. The plaintiff while l'ightfully and (as the jury found) carefully walking along the sidewalk in the evening fell over the hydrant and was injured. In defending against the plaintiff’s action for such injury it is not enough for the defendant company to show lawful authority to maintain the hydrant in the street or even in the sidewalk. It must show lawful authority to maintain the hydrant at that particular and peculiar place in the sidewalk however dangerous it might be to persons lawfully using the sidewalk for traveling. The only authority set up is that the city council of Calais, acting under powers conferred by the legislature for that purpose, [474] designated that spot in the sidewalk as the lawful position of the hydrant. It is not necessary to consider the validity of the action of the city council until it is made to appear by competent evidence that it did in fact designate that spot. To establish this proposition of fact, the defendant company introduced certain records of the city council, showing,— (1) 'that March 9,1896, the city council “Ordered, That the Committee on Fire Department, with the Chief Engineer, and Willis E. McAllister, locate the eighty hydrants to be placed on the streets of the city, and designate where each hydrant shall be placed. Said location to be made by said Committee and reported to the city council at the next meeting.” — (2) that March 22 following, the committee thus appointed made report as follows: “To the City Council. Your committee to which was referred the laying out of the hydrants submits the accompanying plan. George Kalish, W. E. King, Josiah H. Pineo, Willis E. McAllister, Committee. Voted, To accept the report and that the said ‘Plan’ be placed on file.” , The natural inference from this action is that the committee located the positions for the hydrants, marked these positions on a plan, and returned the plan as their report. It is to be presumed that the positions marked on the plan were the positions designated upon the surface of the earth. Indeed a member of the committee called by the defendant company testified that such was the fact. Therefore, this plan, thus officially made and returned to the city council as the report of the committee and by the council accepted and placed on file, became the official and record evidence of the particular places on the surface of the earth where the company could lawfully maintain its hydrants. The production of this plan, and evidence fitting it to the earth’s surface, would have determined whether this hydrant was in the position authorized by the city council. But the plan was not produced, nor any certified or other copy of it;, nor was its absence in any way accounted for. The city [475] clerk was not called, nor was there any evidence of any effort to obtain the plan or a copy. The defendant therefore utterly failed to adduce the best evidence that this hydrant was being maintained in the position designated by the city council. The defendant company’s contention not being sustained by legally competent evidence must be overruled. The defendant company, however, while not producing or accounting for the official plan, offered to show by the oral testimony of one of the committee that the hydrant was in fact in the position designated for it by the committee. This testimony was objected to by the plaintiff but was admitted. The witness then testified on the direct examination as follows: Q. What did you do as a member of that committee? A. I made a tracing of the city streets, and with the committee located the hydrants on them, and afterwards whenever the matter of location of hydrants came up, I went with the water company’s engineer and definitely located that hydrant. Q. Were you present at the location of all the hydrants? A. Practically all of them. Q. Were you present when the hydrant on North street, in front of the McCoy house, was located ? A. I can’t remember that hydrant specially; but I located every hydrant that there was any question about. Q. Would that hydrant be included in the number ! A. I think-very likely it was. And upon the cross-examination as follows: Q. You said that you didn’t know where that hydrant was located exactly ? A. I said I did not know whether I had-to go there and make a special location for it. I thought very likely I did. Q. You state now that you didn’t know distinctly where that-hydrant was put in? A. I don’t think I said just that. Q. Did you know exactly where that hydrant was put in ? A. I might have at the time. Q. Do you know ? [476] A. I cannot say positively that I did. We think this testimony, even if admissible without accounting for the plan, falls short of proof that the dangerous place in which the hydrant was found was the place designated by the committee and marked on its plan. The witness disclaims any recollection of designating that particular position for that particular hydrant. At the most he thought it very likely that he did. If a water company desires to maintain a hydrant so near the middle of a sidewalk, in a position so dangerous to the public using the sidewalk, it may properly be held to make full legal proof of its authority to do so. The oral testimony of one witness that “ very likely ” that was the position designated by the committee is manifestly insufficient. The verdict of the jury upon all the other propositions of fact was sufficiently sustained by the evidence. Motion overruled. Judgment on the verdict.