were not guarded, and that he was not instructed or cautioned as to dangers.

There were no guards in front of the rolls on the machine, except that the wooden roll itself served as a guard to the nip of the two iron rolls. To get the hand into the nip of the iron rolls it would be necessary to put it over and back of, or under and back of, the wooden roll. And the mechanical construction is such that it is practically certain that the plaintiff put his hand over and back of the wooden roll. The top of the roll, as already stated, was 4 feet 11 inches from the floor. The plaintiff's armpit was 4 feet from the floor. It follows that his hand must have been lifted somewhat above a level from his shoulder.

Whether the plaintiff was cautioned or not is in dispute. The condition of the floor is also in dispute. The plaintiff says it was wet and slippery from the starch. The de

fendant admits that it had been wet and starchy an hour or more before, but claims that the floor had been swept clean of water

and starch before the accident. And the weight of the evidence clearly supports that contention. There is no question, however, that the floor was damp.

While there are some improbabilities in the plaintiff's story, we think it may be conceded that it is possibly true. But, giving to the evidence and to the situation an effect most favorable to the plaintiff, we think that he is not entitled to recover, and that the verdict in his favor is indisputably wrong.

[3] In the first place, we think it cannot properly be said that the defendant owed to the plaintiff the duty of guarding the nip of the iron rolls more than it was guarded. The plaintiff was not working at the machine. He had no occasion to come into proximity with the rolls. The nip was nearly as high as his shoulder. There was a wooden roll

in front of it. His work was at the box, nearly 3 feet from the rolls. And we do not overlook the claimed fact that the floor was slippery, a condition known to the plaintiff. The master is not an insurer of the safety of his servant. He is only bound to use reasonable care to have the place where the servant works in a reasonably safe condition.

[4] But, if we were to assume that the place in this case was unsafe and dangerous, the plaintiff stands in no better position. It is so well settled, that it needs no citation of authorities to sustain the doctrine, that the servant assumes the risk of all obvious dangers, and of all dangers incidental to the business which are known to and appreciated by him, and, as well, of all dangers that he ought to have known and appreciated. It is equally well settled that the servant is not entitled to instructions and cautions about dangers which he already knows and appreciates.

The plaintiff's own testimony shows that he knew the consequences of getting his hand between the rolls. He knew where they were. He knew or ought to have known which way they were turning. He knew the condition of the floor. He knew the danger of slipping. He says he was "afraid" of it, and was "careful" by reason of it. Although he was young, it is clear that he knew and understood the dangers. We cannot do otherwise than to hold that the plaintiff assumed the risks of which he now complains. The verdict is so clearly without warrant that we feel compelled to set it aside. Motion for a new trial sustained.

Plaintiff, a man 79 years of age, induced his daughter and her husband, J., to live with him on his property without any lease or special arrangement. Plaintiff had full control of the premises, but because of his age and feeble health left the work to J., who attempted to smoke meat which belonged to him and intended for use in the home, and while doing this in a shed, fire escaped and burned the house. Held, that in the absence of evidence that plaintiff had anything to do with the smoking there was no such alteration of the situation of the ham or advised or consented thereto, affecting the risk or increase of risk by or with plaintiff's knowledge, advice, agency, or consent as would avoid the policy.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 842-846; Dec. Dig. § 333.*] 2. TRIAL (§ 136*)-QUESTIONS OF LAW-REA

SONABLE TIME.

What constitutes reasonable time on undisputed facts is a question of law.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 318, 320, 321, 323-327; Dec. 'Dig. § 136.*]

3. INSURANCE (§ 559*)-PROOF OF LossWAIVER.

Where plaintiff's dwelling house was destroyed by fire on May 2, 1913, and on June 18th following plaintiff received a letter from that the insurer could not legally pay the loss, the secretary of the insurer, notifying him such letter operated as a waiver of proofs of loss.

Cent. Dig. §§ 1391, 1392; Dec. Dig. § 559.*ĺ 4. INSURANCE (§ 665*)-FIRE POLICY-LOSSPROOFS REASONABLE TIME.

[Ed. Note.-For other cases, see Insurance,

Where plaintiff suffered a fire loss May 2, 1913, and on June 18th the insurer notified him that it could not legally pay the loss, and proofs were filed August 5, 1913, there was sufficient basis for a finding that a statement in writing of the loss had been rendered to insured within a reasonable time.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.*]

On Motion from Supreme Judicial Court, Androscoggin County, at Law.

for defendant.

HANSON, J. This is an action on a fire insurance policy, dated February 11, 1911. The fire occurred May 2, 1913, and proof of loss was filed August 5, 1913. The jury returned a verdict for the plaintiff in the sum of $1,234.24. The case is before the court on a general motion for a new trial. The material facts in the case are substantially these:

The fire was caused by smoking a large ham and a shoulder in a shed about 20 feet square. The hams were suspended by a tarred string from an iron rod running

across the bottom of a wooden barrel, which

was inverted over a similar barrel; the latter standing on the wooden floor. A kettle containing the fire and combustible material stood on bricks in the bottom of the lower barrel.

The premises were owned by the plaintiff, The premises were owned by the plaintiff, who had occupied them for 35 years, and continued to live in the house until driven out by the fire. For about 2 years his daughter and her husband, a Mr. Jackson, had lived there, without any lease or special arrangement, but doing the work about the place and owning some of the personal property. The plaintiff retained full control of the premises, but on account of his advanced age and feeble condition was obliged to secure the assistance of Mr. Jackson and his cure the assistance of Mr. Jackson and his wife in the management of his farm and care

He

of himself in his sickness. The ham and shoulder were the property of Mr. Jackson, and he was smoking them for use in the plaintiff's home. The plaintiff was confined to his bed at the time of the fire, and was carried from his house by neighbors. lost his deed and other papers, and much of his personal property, in the fire. The plaintiff introduced a certified copy of the deed of the premises from Charles D. Fox to Leonard C. Andrews, dated November 8, 1874, and the following letter:

"Dirigo Mutual Fire Insurance Co. "Gorham, Maine, June 18, 1913. "L. C. Andrews, 'Monmouth, Me.-My Dear Sir: I am very sorry to be obliged to notify you that we cannot see how the company can legally pay you for your loss which was caused by smoking hams in your carriage house without permission.

"Very truly yours, T. F. Millett, Sec'y. "TFM-B."

The proof of loss was offered and admitted, and the following admission was made: "It is admitted that August 5, 1913, the firm of McGillicuddy & Morey sent proof of loss of

L. C. Andrews to the Dirigo Mutual Fire Irsurance Company at Gorham, Maine; and on Mr. Andrews to the same company a list of the 15th day of August, 1913, we submitted for three appraisers, from which they were requested to make their selection in the fire loss Fire Insurance Company, stating the names, of L. C. Andrews against the Dirigo Mutual and that no answer was ever made by the company to either the proof of loss, nor did they ever suggest any names from which we could select, or make a selection of ours."

The defendant pleaded the general issue, with the following brief statement: "(1) That at the time the fire occurred, to wit, on May 2, 1913, the property insured was not then the property of the plaintiff in suit.

"(2) That the fire which resulted in the loss of the property, the value of which is in suit in this case, was caused through the gross negligence and want of care of the plaintiff acting through his servants and agents in the care and custody thereof, and in the matter in which the fire occurred, and was set directly by the plaintiff or by his servants and agents."

At the conclusion of the plaintiff's testimony, the attorney for the defendant stated to the court that he would not undertake to offer any further testimony, that the facts were brought out practically as they existed, and that he desired "to address the jury on the evidence as it stands."

The defendant contends: That the fire was caused by the gross negligence of the

plaintiff, and that he has violated two conditions of the policy, namely, that provision

that:

"The policy shall be void if * without such consent [that of the company], the situation or circumstances affecting the risk shall, by or with the knowledge, advice, agency, or consent of the insured be so altered as to cause an increase of such risks." And the provision that, "in case of loss or damage statement in writing

*

shall be within a reasonable time

rendered to the company setting forth the rendered to the company setting forth the value of the property insured," etc., and says "that the only fair inference to be drawn

from the evidence is that whatever was done

was the act of the plaintiff done through his agents or employés. Jackson and his wife claim of any lease, or independent contract were doing the active work, but there is no they were simply one family, and, as Mrs. of any sort. The plaintiff remained there;

The transactions about the place were as Jackson said, he still had full control of it. much his as though he had been personally present every minute and had done them with his own hand," and that the fire was due to gross negligence. That smoking a ham in a shed, without constant watching, was negligence. That the place and means selected, instead of locating the barrel outside the buildings, was inexcusable. In effect defendant claims that the plaintiff was grossly careless, and therefore cannot re

cover.

We are not able to agree with the defendant's claim that the plaintiff violated two of the conditions of his policy as set out in the brief of counsel, viz.: (1) That the situation

[1] As to the first contention the record does not disclose that it was submitted to the jury, but it does show conclusively that the plaintiff had no knowledge of the situation or circumstances causing the fire; that he had given no instructions in relation to smoking hams, or any other work on that day, or previously; that he did not own the ham in question, or know of its existence. He was 79 years old, and had been ill for months, and in no condition to voluntarily assume control, or in any manner to direct another in the conduct of his farm, or other work. He was helpless and dependent, and the evidence is conclusive that the situation and circumstances affecting the risk were not so altered as to cause an increase of the risk, by or with his knowledge, advice, agency, or consent. Nor does the evidence justify an inference that whatever was done was the act of the

plaintiff performed through Mr. Jackson and his wife, as agents, thus violating a condition of the policy.

The defendant relies particularly upon its claim that a proof of loss was not furnished "within a reasonable time." From the briefs of counsel on either side it appears that this question was submitted to the jury by the presiding justice, and the jury passed upon it, but the defendant says that:

"In the absence of proof of an express waiver, it was not a matter of positive instructions by the court to be reviewed on exceptions, but was a question for the jury on which it erred," and "that the only possible way in which the plaintiff can prevail is by reading into the law words which are not there, in order to avoid giving force to the words which are there."

[2] Counsel agree that it was a proper question to be submitted to the jury, and in the absence of exceptions, and the charge of the presiding justice, we must assume that the question was submitted under proper instructions. The words under consideration are the same in the statute and policy, to wit, "within a reasonable time." It is firmly settled in this state that what constitutes reasonable time, on undisputed facts, is not for the jury, but is a question of law. Hill v. Hobart, 16 Me. 164; Greene v. Dingley, 24 Me. 131; Libby v. Haley, 91 Me. 331, 39 Atl. 1004; Watson v. Fales, 97 Me. 366, 54 Atl. 853, 94 Am. St. Rep. 504.

[3] Other questions were involved, and the case was necessarily submitted to the jury.

It is manifest that there was evidence from which the jury could properly find that there was a waiver of the right of the defendant to require a proof of loss, or that such proof of loss was furnished within a reasonable

[4] The letter in the case, which was obviously a reply to a communication from the plaintiff on the subject of the loss, the continued illness of the plaintiff, his great age, the facts admitted touching the offer on the plaintiff's part to submit his claim to arbitrators, the silence of the defendant and its neglect to answer communications from the plaintiff, and the further fact that the notice, when furnished, was for the benefit of the defendant, and that substantially all the facts connected with the fire were known to the defendant before the date of the letter to the company on June 18, 1913, furnished ample ground for a finding that a statement in writing was rendered within a reasonable time, as required by the statute and the terms of the policy.

It is the opinion of the court that the verdict should stand. The entry must be: Motion overruled.

CARE.

-

living with her husband by the negligence of a Where a married woman is injured while third person, she may not recover for loss of ability to do domestic labor in their home, nor for the expenses of her treatment and care, since her inability to labor is the loss of her husband, and the burden and expense of caring for and nursing her is also his, unless she has expressly undertaken to be personally responsible therefor.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 766-772, 968, 973; Dec. Dig. § 209.*]

2. DAMAGES (§ 130*) - EXCESSIVENESS-PER

a

SONAL INJURIES.

Plaintiff, a married woman, was injured in collision between a carriage in which she Plaintiff was 71 years old and in good health was riding and one of defendant's cars. for a woman of her age. She was thrown violently to the ground between the railroad tracks, severely bruised; two of her ribs were broken, and she sustained a severe nervous shock. She suffered great pain for several weeks on account of the irritation caused by the pricking ends of the fractured ribs, was unable to sleep, and though the fractured ribs united, she continued to suffer pain and lameness in her side up to the time of the trial and was unable to do any work. Held, that a verdict allowing her $1,200 was not excessive.

[Ed. Note. For other cases, see Damages,

Cent. Dig. §§ 357-367, 370; Dec. Dig. § 130.*]

On Motion from Supreme Judicial Court, Penobscot County, at Law.

Action by Emily E. Felker against the Bangor Railway & Electric Company. On motion for a new trial. Overruled.