some exceptions to these as well as to most gen- | employès of the existence of such a latent eral rules.'

99

In that case we quoted with approval as we had previously done what was said by the Supreme Court in B. & O. R. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772:

"A master employing a servant impliedly engages with him that the place in which he is to work and tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place and the tools and machinery, and, when he employs one to enter his service, he impliedly says to him that there is no other danger in the place, the tools, and the machinery than such as is obvious and necessary."

We gave, as illustrations of the exceptions above referred to, when a place is out of repair and dangerous, and the employè undertakes to make it safe, and when he accepts an employment or continues in it, with knowledge of the danger, the employè cannot ordinarily hold his employer liable.

danger.

Whether such conditions did in fact exist was for the jury, as was also the question whether the plaintiff was guilty of contributory negligence. The court could not say, as a matter of law, that it was negligence on the part of the plaintiff to place his foot where he did, if he believed the conveyor was covered, as it ought to have been, and as it usually was. The evidence certainly furnishes sufficient reasons for crossing where he did, and as he did, to require that to be submitted to the jury. The defendant's third prayer, asking the court to take the case from the jury on the ground of contributory negligence of the plaintiff, was therefore properly rejected. Its fourth, fifth, sixth, and seventh prayers, which were granted, fully instructed the jury as to plaintiff's alleged contributory negligence, and its seventh was properly modified. Its eighth, which was also granted with a slight modification, was as favorable as the defendant could expect or ask. ninth and tenth were properly rejected, and what we have already said will relieve us from discussing them.

The

In 2 Labatt's Master & Servant (2d Ed.) § 995, p. 2668, the effect of changes in the parts of machines is thus stated:

[5] Applying these principles to the facts of this case, the plaintiff's first prayer was properly granted, and the defendant's first and second and its prayer 1A were properly rejected. There is nothing whatever in the evidence to contradict the plaintiff, when he said he did not know that the top of the conveyor was not solid, as it was supposed to be "A servant may recover damages for an inand as the defendant claims it thought it was. jury caused by the removal or alteration of No witness was more positive about the dan- some essential part of a machine, when the danger of using it is thereby materially increased. ger of conveyors than Mr. Taylor, a super-Hence, whatever doctrine may be entertained as intendent of the company, and it may well to the existence of a duty on the part of the be inferred from his testimony that he re- employer to keep dangerous machinery covered garded them so dangerous as to inspect them (see sections 975, 976, ante), the employer is prima facie liable for an injury resulting from himself. He says he saw the old conveyor the entire or partial removal of a cover which the Sunday before the accident, and denied had been provided. The conditions thus created that there was then a collection of lime on are clearly more dangerous, because misleading, than those to which the servant is exposed when the machinery or that there was a sack there. there has never been a cover at all. In such That was either the day before or two days cases, therefore, the right to maintain the acbefore the accident. Bowers says the acci- tion is complete, and can only be defeated by dent was April 8th, which was Monday, while showing that he understood and deliberately enone of the witnesses, according to the record, changed circumstances." countered the specific risks arising from the said it was on April 9th. But there was not only some evidence, but abundant evidence, in contradiction of those statements of Mr. Taylor. He is also reported in the record to have testified that there was "no excuse not to protect screw conveyors," and, as it was known that some of the employès would be working about the old conveyor, he would seem to be undoubtedly right in that statement. We can appreciate the difficulties that employers meet with at such a plant, but, if the evidence on the part of the plaintiff is correct (that sacks had been used on this conveyor for a week or more, as one witness said, or two or three weeks, as another said, and that the sack and other parts of the top of the conveyor were covered with so much dust that it would have taken several weeks to accumulate; Mr. Taylor said "a couple of months"), it was inexcusable on the part of the defendant, and it did neglect its plain duty to correct the trouble, or at least to warn the

In reference to the master's duty under statutes relative to factories, the same learned author in volume 5, § 1856, p. 5665, says:

"It is not sufficient for the master to furnish the guards; he must also adjust them; and the duty of guarding is continuous, so that the guards must be maintained as well as furnished, contemplated by the statute." and kept in condition to perform the service

[6] It only remains to consider the first and second exceptions, which we will briefly do. The first was to permitting a section of the West Virginia Code to be read. That

section is as follows:

"1. In all manufacturing, mechanical and other establishments, in this state, where the machinery, belting, shafting, gearing, drums and elevators, are so arranged and placed as to be engaged in their ordinary duties, shall be safely dangerous to persons employed therein, while and securely guarded when possible, and if not possible, the notices of the danger shall be conspicuously posted in such establishments, and no minor or female of any age shall be permitted to clean any of the mill gearing or machinery in such establishments while the same is in mo

tion." 518).

Code W. Va. 1913, c. 15H, § 59 (sec. [ hole into which Bowers' foot went was

larger than the width of the sack, yet the witness in his experiment said he had "used the width of the bag for an experiment (this width was 26 inches), and placed 21⁄2 inches lime upon it; the hole was longer than the width of the sack." If his object was to show that the sack sagged under those circumstances, it is very probable that it did when the hole was longer than the width of the sack. There might have been altogether different results if he had experimented with a hole which was known to be of the same size as the one into which plaintiff's foot went. One of the witnesses said that Bowers' leg had pushed away a part of the covering on top of the conveyor. One sack might have been stiffer than the other, but even if the sack did sag some before Bowers was hurt, unless he knew or had some reason to suppose there was a sack or something other than the regular cover, he would not likely have observed the sagging. He and the other witnesses who saw it said they did not notice that there was a sack there. For this and other reasons which might be given, the experiment could not be accepted as satisfactory, but, at any rate, it is difficult to see how it could have had any material effect, in the face of the positive evidence as to the actual conditions. The judgment will be affirmed.

As this plant was in West Virginia, we think it was proper to admit that statute in evidence. It is not contended that the plaintiff could not sue the defendant in this state for these injuries, if service on the defendant could be had, as it was. It might materially affect the usefulness of such a statute, if, when suit is brought in a state other than the one where the injury happened, the courts of the former refused to admit it in evidence. It frequently happens that employés live on one side of a state line and work on the other side, and while they can sue in the state where the accident occurred, they are liable to be required to give security for costs and be subjected to other inconveniences, even if they can furnish the security. It is now very generally acknowledged that statutes of this character, if they were really and bona fide passed for the protection of employés, are not only desirable for them, but are in the end beneficial to employers and the public, and in a country like this, where there are so many different jurisdictions, the courts of one state should be inclined to aid in the enforcement of such meritorious statutes of another state, at least to the extent of applying their provisions to suits for injuries sustained where the statutes are in force. Of course we do not mean to say that, if a statute of one state be contrary to the policy adopted by the state in which suit is brought or is deemed unreasonable by the courts of that state, the latter must be governed by it, but, where such is not the case, it would seem to be only just to apply a statute which presum- (Supreme Judicial Court of Maine. Sept. 1, ably was read into the contract of employment or at least was binding on the parties. One count of this narr. specially relies on the West Virginia statute, and while, independent of that, there was enough to go to the jury under the other count, we are of the opinion that the West Virginia statute was admissible. Without quoting from authorities, we will refer to some where the question is considered. Boston & Maine R. R. v. Hurd, 47 C. C. A. 615, 108 Fed. 116, 56 L. R. A. 193; Christiansen v. William Graver Tank Works, 223 Ill. 142, 79 N. E. 97, 7 Ann. Cas. 69; 22 Am. & Eng. Ency. of Law, 1378; 26 Cyc. 1291.

Judgment affirmed; the appellant to pay the costs.

(112 Me. 175) ROLLINS v. CENTRAL MAINE POWER CO.

1914.)

1. COSTS (§ 49*)-DEMURRER-OVERRULING— PLEADING ANEW.

if a demurrer filed at the first term is overruled, Under Rev. St. c. 84, § 35, providing that, the defendant may plead anew on payment of costs, and that, after a decision on the demurrer has been certified by the clerk, .judgment shall be entered thereon unless costs are paid and new pleadings are filed on or before the second day of the next term, a defendant whose demurrer is overruled must either pay or tender costs on or before the second day of the next term, and, in case of failure, his amended pleadings will be stricken and judgment rendered on demurrer.

[Ed. Note. For other cases, see Costs, Cent. Dig. §§ 211-215, 217; Dec. Dig. § 49.*] 2. PLEADING (§ 239*)-DEMURRER-PLEADING OVER-WAIVER OF PAYMENT OF COSTS. journment of court on the second day of the A plaintiff, by failing to object, before adterm following the one when, defendant's demurrer was overruled, to the filing of amended pleadings by defendant, does not waive his right to demand that, as defendant did not pay the costs, judgment should be rendered on the demurrer, because defendant has until the end of the second day to pay, such costs and until fendant intends to make the payment. such time plaintiff cannot know whether de

[7] There was no error in the second exception. Without discussing the question from other standpoints, the conditions stated by the witness, as we understand them, are not shown to be the same as at the time of the accident. Precisely what the size of the opening was, which the sack covered when Bowers put his foot on the conveyor, is not shown, but there was evidence that the screw forced his leg along in the conveyor for some distance, but what the distance was is not known. There was no evidence that the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 626-635; Dec. Dig. § 239.*]

3. DAMAGES (§ 132*)-PERSONAL INJURIES-[gard to costs." The court ruled as matter of MEASURE OF DAMAGES. law that the filing of the plea without payment of costs did not make a good plea and granted the motion. No objection thus overruled can avail. The objections are based upon failures and omissions of defendant. The plaintiff was under obligations to do none of the things alleged to be undone.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

On Motion from Supreme Judicial Court, had been given him by Mr. Strout, the agent Kennebec County, at Law.

Action by George A. Pierce against Charles J. Cole. On motion for a new trial. Granted. Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, BIRD, and PHILBROOK, JJ.

Williamson, Burleigh & McLean, of Augusta, for plaintiff. George W. Heselton, of Gardiner, for defendant.

PER CURIAM. This is an action of deceit arising from the sale of a farm by the defendant to the plaintiff, in which the plaintiff alleges that the defendant misrepresented the amount of hay which the farm cut in 1907 and previous years, as an inducement to the plaintiff to buy the farm. This case has been tried twice and each time contained a very long record involving, as such cases usually do, much conflicting testimony. The plaintiff obtained a verdict in his favor at each trial. The first verdict was set aside upon exceptions, and the merits of the case, of course, were not considered. The case is now before us on motion only. It would be useless to attempt a detailed review of the evidence contained in this long record of 532 pages. The plaintiff's action sounds in deceit. It was therefore incumbent upon him to prove all the elements necessary to make

of whom he bought the farm of the plaintiff. But the statement did not contain such a representation as to the quantity of hay in the barn as would sustain an action of deceit. Accordingly, at the present trial the plaintiff furnished the technical oral proof that would sustain his action.

(Supreme Judicial Court of Maine. Sept. 10, 1914.)

1. MUNICIPAL CORPORATIONS (§ 176*)-CITY MARSHAL-TERM OF OFFICE.

and shall hold office for two years, and repealing all inconsistent acts.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 427-440; Dec. Dig. § 176.*]

2. MUNICIPAL CORPORATIONS (§ 183*)-CITY MARSHAL "TERM."

The provision of Lewiston city charter that the city council should annually, on or after the third Monday of March, elect and apout and sustain this form of action. The point all subordinate officers for the ensuing plaintiff's chief contention was that the de- year, the same to be chosen and vacancies filled fendant made such misrepresentations as to for the current year, was repealed as to the city the quantity of hay in the barn cut the year marshal by Sp. Laws 1878-80, c. 293, which he purchased, and as to the quantity cut ined by the mayor with consent of the aldermen, provides that the city marshal shall be appointprevious years, as to sustain in law an action of deceit. It was, of course, the first duty of the plaintiff to prove the misrepresentations claimed. We think he has failed to do this. His own testimony is so contradictory and conflicting upon this vital point that the denial of the defendant of the representations, as claimed by the plaintiff, must prevail in determining this issue. It appeared at this trial of the case that the plaintiff, at a trial in the superior court in 1909 involving other issues, but raising directly and emphatically the representations made by the defendant when the plaintiff purchased the farm of him, denied, upon oath, both upon cross and direct examination that the defendant made any such representations, either to himself, or to his son in his presence and hearing, as he now claims. This trial occurred nearly four years before the present one, when his recollection of what took place must have been fresh and clear. His testimony was certainly without bias or prejudice. We think it should have been regarded by the jury as sufficient to overcome the later testimony which he produced when he was influenced by selfinterest to sustain his action of deceit. In this connection it should be noted that at the trial in the superior court, the plaintiff said repeatedly that he relied upon a writing which

Under Sp. Laws 1878-80, c. 293, § 1, providing that the city marshal of the city of Lewiston shall hold office for two years, a city marshal holds office for the full term of two years from his appointment, whether appointed at the beginning of one of the successive periods of two years counting from the date the act became effective, or to succeed one who did not serve out the full term, especially as the word "term" means a limited or definite extent of time, or the time for which anything lasts, and, when used with reference to the tenure of office, ordinarily refers to a fixed and nate a fixed, definite time that the person apdefinite time, and is used in the act to desigpointed shall hold the office.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 472-481; Dec. Dig. $183.*

vol. 8, pp. 6916, 6917.]
For other definitions, see Words and Phrases,

Report from Supreme Judicial Court, Androscoggin County, at Law.

Petition in the nature of quo warranto by Scott Wilson, Attorney General, on relation of George R. Hall, against C. H. McCarron. On report. Petition dismissed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Argued before SAVAGE, C. J., and COR- | 1910, when Arsene Callier was appointed city NISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.