Posted by
stew
- Mon, Dec 1, 2008
Gazette & Courier - Monday, March 22, 1875
Court record
The usual session of the March term of the Superior Court was begun Tues. the 10th, Judge William Allen of Northampton presiding. Rev. A.J. Lyon was present and made the opening prayer. The Grand and Traverse Juries were empaneled with little delay, and the Grand Jury retiring with the District Attorney, the trial list was taken up and run through, showing a larger number of cases ready for trial than is usual, considering the number on the list. The civil cases were put on trial with commendable promptness, and if the same diligence is shown in the trials themselves, the term will not be an extended one. We give below the list of jurors empaneled.
/ Grand Jury - John Sanderson of Bernardston, Foreman; Robert Abercrombie of Deerfield, George W. Bradford of Conway, O. Frank Brown of Rowe, Lowell Brown of Shelburne, Cyrus W. Carley of Heath, Alonzo Crafts of Whately, Richard A. Dudley of Leverett, Alonzo Eldridge of Ashfield, George Gammell of Montague, Lysander Hillman of Charlemont, Joseph W. Houston of Hawley, Seth Leonard of Shutesbury, John I. Mattoon of Northfield, David Mowry of Leyden, William H. Packard of Erving, Simon C. Phillips of Gill, Theo C. Shearer of Coleraine, William Stickney of Greenfield, James M. Tenney of New Salem, Kendrick Ware of Buckland, Lafayette Worrick of Orange.
/ The Traverse Juries are as follows...[long list of names for first jury, second jury, and supernumeraries]. The following bills were found by the Grand Jury against Lewis Buck for Adultery; Levi Huntoon, for breaking and entering; also same for assault; Cornelius Bullman, common nuisance; Town of Heath, neglect to repair highway - two indictments.
/ The following appealed cases are on the docket: Commonwealth vs. Charles Peck, a common seller; same, keeping liquors; John Dempsey, assault; __ Champlin, assault and battery.
/ The first case which was taken up was that of George E. Williams vs. the Inhabitants of Leyden; and that of George E. Williams et al. vs. the Inhabitants of Leyden, depending on the same facts substantially, was joined with the first named action. The actions were for injuries alleged to have been received while traveling on a public highway in the town of Leyden, the amount claimed by the former case being $500, and in the latter case $1000. The second mentioned action was brought by Williams and his wife for injuries received by her, but upon objection by the defendants' counsel that the husband and wife were improperly joined, that the said action should have been in the name of Mrs. Williams alone, it was moved to have a non-suit entered in the case; but leave being given by the court, the plaintiff amended by striking out the husband's name from the second action and the trial proceeded.
/ The plaintiffs to the suits, at the time of the accident, resided at Montague City. The day of the accident, which occurred in September, 1873, the plaintiffs, with their two children, a Mr. Drake and his child, 6 persons in all, started from Montague City, after dinner, in a common two-seated carryall, with one horse, and came to Greenfield. This being the second day of the Agricultural Fair, the party spent some time upon the fair ground in Greenfield, about 4 p.m. starting for Leyden, where they arrived about 6 o'clock. After supper, it being then quite dark, and raining slightly, the plaintiffs and their two children started with the same team to go from the residence of Mrs. Dorril to Leyden Center.
/ While midway on the crossroad, and while ascending a hill, the horse suddenly stopped and commenced backing, upon which both Mr. and Mrs. Williams jumped from the vehicle, the latter having a child two years old in her arms, just as the horse and carryall went over the wall and down a bank some 5 or 6 feet high. The carriage and harness were broken, and Mr. Williams received some slight abrasions of the skin upon his limbs; but though Mrs. Williams did not seem to be much injured at the time, it proved by subsequent events that she did receive severe and perhaps permanent injuries. It was admitted on the trial that the road was a town way, and that the town was lawfully bound to keep said way in suitable repair. The town also, while admitting that there was no railing at all at the point where the accident occurred, contended that, considering the travel and use for which the way was ordinarily used, it was in suitable repair and no railing was needed.
/ On the question of injury received by Mrs. Williams, all the leading physicians from Greenfield, and also one from Montague, were called to the stand. The evidence of the medical gentlemen, both as to facts and as experts, giving the probabilities in certain supposable cases, agreed remarkably well. From evidence adduced, it seems that Mrs. Williams was troubled with severe pains in the head immediately subsequent to the accident; that about 8 days thereafter she suffered a miscarriage; that previous to the accident she was a strong and robust woman, while since that occurrence she has been very nervous, had much pain, and is not a strong or well woman at present.
/ The evidence of the defense was exceedingly weak and mostly of a technical nature. The court held the plaintiffs very close to the law, ruling amongst other things, that if the negligence of the plaintiff or the viciousness of the horse were a contributing cause of the accident, the plaintiffs could not recover. He also instructed the jury by request of defendant's counsel, that if the jury should find that the horse stopped and refused to go forward, at a point not less than 25 feet from where they went over the wall, and the driver lost control of the horse and did not regain control before the accident, their verdict must be for the defendants; that if the horse was vicious at the time of the accident, though never had been before, if the viciousness contributed to the accident, the plaintiffs could not recover. The jury were instructed as to the estimate of damages and required to bring in the verdict and damages if any, in each of the two actions separately. The case seems to have created considerable interest, the court room being filled with spectators during the whole of the trial, lasting 2 days. Verdict for plaintiff in both actions. Damages in case of Mr. Williams, $200; and for Mrs. Williams, $175. C.C. Conant and S.O. Lamb for plaintiffs; Charles Delano and C.G. Delano for defts. [The question remains as to whether the other child and the driver remained in the carriage, and were not hurt].
/ Mary R. Newell vs. Ira Carpenter appt. This was the next case in order, and was an action of tort, wherein the plaintiff sued the defendant for $100 damages, for breaking and entering her close, trampling the grass and digging up the soil. This is a purely Greenfield case, and one that has been the subject of much remark in its various forms; it may be said to have agitated the 'Log Plains' district, from center to circumference.
/ The facts in the case are, briefly, that for many years prior to Mr. Newell's death, a small hydraulic ram has been used and operated by a small stream of water which has its course through the lands of Mr. Carpenter, and afterwards winds its way through the lands of the plaintiff. In order to divert the water and get the required head sufficient to generate the ram, a slight dam has been maintained for year after year, without complaint or objection from the defendant. Soon after Mr. Barnard Newell's death (the plaintiff's husband), the now defendant, brought an action for alleged injury from the flowing of his meadow, in consequence of the said dam, erected and maintained on the plaintiff's land. This action was at last settled after being taken to the Supreme Court, by an entry of judgment for Mr. Carpenter, with a nominal damage of one cent.
/ After this settlement the dam was lowered, and only raised to a height barely sufficient to run the ram, but not high enough, the plaintiff's witnesses testified, to throw any water back upon the land of Mr. Carpenter. This state of things did not seem to suit the ideas of all concerned, and the next move was an entry by defendant upon plaintiff's land, to remove the dam or portions of it, and to make a free channel for the stream. The injury mentioned was soon repaired by the neighbors, and the ram was again at work, supplying water to the plaintiff's premises. A truce from hostilities ensued for a time, but only to break out afresh and with still greater violence. Mr. Carpenter and his hired man, again came on the plaintiff's premises with the implements of destruction, and commenced digging a new opening for the exit of the water from the dam - which by the way was but a few inches in height. Mr. L.G. Barton, who resides near, was apprised of the state of affairs, when he and his hired man appeared upon the scene, armed with the instruments of construction, and then began: A serio-comic battle of the spades! / With might and main the conflict raged / From dawn till eve of day / At last the strength of arm had failed / The dam still closed the way/.
/ The evidence of this passage at arms was graphically described by eye witnesses, during the course of the trial, and was extremely ludicrous. But this case has also a serious side, and involves several as nice questions of law as has probably any, before the courts for years. The defense claims that the real question decided, in the previous suit alluded to, was the right of the plaintiff to maintain the dam. They also allege that, that was the understanding when it was agreed to have the verdict of nominal damages entered, and further justify the destruction and entry charged in this action on the ground of abating a nuisance, so adjudged by the verdict in the former case. To this, the plaintiffs say, that the previous decision had nothing to do with the question of the right of maintaining the dam, but only applied to the flowing of the defendant's land. Thus a nice point comes up, as to how far the judicial decision rendered in the former case, shall be admitted as evidence in the present one.
/ The criminal business will be taken up this morning. The Court will attend to naturalizations on Tues. at 2 o'clock. The Court adjourned Sat. noon till 10 o'clock Monday, at which time the arguments of counsel will be made on the case of Newell vs. Carpenter.
Subjects: Accidents, Animals / Reptiles, Ashfield (MA), Bernardston (MA), Births, Buckland (MA), Charlemont (MA), Children, Coleraine [now Colrain] (MA), Conway (MA), Courts, Crime, Criminals, Deerfield (MA), Drunkenness, Economics, Emigration and Immigration, Erving (MA), Eye, Fairs, Family, Farmers & Farming / Flowers, Food, Gill (MA), Government, Greenfield (MA), Hampshire / Hampden Counties, Horses, Households, Jokes, Law and Lawyers, Leverett (MA), Liquors, Massachusetts, Medical Personnel, Medicine / Hospitals, Montague (MA), Names, Natural Resources, New Salem (MA), Northfield (MA), Orange (MA), Poetry, Religion, Rivers / Lakes / Oceans, Roads, Robbers and Outlaws, Sales, Sex Crimes, Shelburne and Shelburne Falls (MA), Shutesbury (MA), Transportation, Trees, Weather, Whately (MA), Widows and Widowers, Women, Work, Leyden (MA), Heath (MA), Hawley (MA), Rowe (MA), Geography
