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Argued before SAVAGE, C. J., and SPEAR, I well as in health, the burden of the expenses CORNISH, BIRD, HALEY, and PHIL- for medical and surgical treatment and for BROOK, JJ, nursing falls upon him and not upon her, un

D. I. Gould, of Bangor, for plaintiff. E. C. less she has expressly undertaken to be perRyder, of Bangor, for defendant. sonally responsible for them.

SAVAGE, C. J. Case to recover for injuries sustained in a collision between the carriage in which the plaintiff was riding and the electric car of the defendant company. The plaintiff obtained a verdict for $1,200. The case comes up on the defendant's motion for a new trial on the usual grounds. But counsel have argued only the question of damages, and to that question we shall confine ourselves.

The plaintiff is a married woman, and at the time of the accident was about 71 years of age, and in ordinarily good health for a woman of her age. The carriage in which she was riding was overturned, and she was thrown violently upon the ground, between

the railroad tracks. The evidence would

warrant a jury in finding that she sustained a severe nervous shock; that two of her ribs were broken, and that she was considerably bruised about her back and other parts of her body; that in consequence of her injuries she suffered great pain for several weeks on account of the irritation caused by the pricking ends of the fractured ribs, that she suffered also in other ways; that it was necessary, in order to ease her pain, to turn her in bed and give her a rubbing half a dozen times a night; that she was unable to sleep well nights, that as a result of the shock a serious nervous condition was developed, from which she had not fully recovered at the time of the trial, 14 months after the injury. Her attending physician, in testifying, spoke of this condition as "this horrible state of the nervous system." And the jury might find that, although the fractured ribs united well in a few weeks, she suffered even up to the trial from pain and lameness in her right side, and was unable to do any work of any

consequence.

[2] But the plaintiff may recover for the undoubted shock of the accident, and for all the suffering, mental and physical, which it caused. The loss of health and strength was her personal loss, irrespective of its effect upon her ability to labor. For the endurance of the nervous condition caused by her injuries she is entitled to compensation. Such suffering may be both mental and physical.

There is no standard by which the damages for such injuries as are shown in this case can be measured. In the end the question ment of the jury, to award such damages as must be left to the sound sense and good judgseem to them to be fairly compensatory. And when it appears that the jury have discharged their duty with fidelity, and have reached a reasonable approximation of the damages, the court will not interfere, even though the verdict should seem to them somewhat large. When the verdict is within the bounds of reason, the court will not institute a paring process to make it conform more exactly to

their own views. Such is this case. Motion overruled.

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1. MASTER AND SERVANT (§§. 101, 102*)—INJURIES TO SERVANT-DUTY OF MASTER-SAFE PLACE TO WORK.

A master must use reasonable care to proto work in. vide a reasonably safe place for his servant

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.*]

2. MASTER AND SERVANT (§§ 206, 217*)-INJURIES TO SERVANT-ASSUMPTION OF RISK. A servant assumes the risks which are ordinarily incident to his employment, and such other risks as are known to him, or which, by the exercise of ordinary care, he ought to know. [Ed. Note.-For other cases, see Master and

Servant, Cent. Dig. §§ 550, 574-600; Dec. Dig. §§ 206, 217.*]

It appears that while confined to her bed in consequence of her injuries, the plaintiff had an attack, but not a severe one, of hypostatic pneumonia, which is a phase of pneu-3. MASTER AND SERVANT (§ 278*)—INJURIES monia incident to old age. It is not claimed that the pneumonia was caused by her physical injuries. Whether she was more susceptible to it by reason of her condition, does not clearly appear.

[1] Being a married woman and living with her husband, the plaintiff is not entitled to recover for loss of ability to do domestic labor in their home, nor for the expenses in caring for her, surgically and otherwise. Under the marital relation, the labor in the house belonged to her husband. Her inability to perform that labor is his loss. And on the other hand, as the law imposes on him the duty of caring for her in sickness as

TO SERVANT SUFFICIENCY OF EVIDENCENEGLIGENCE OF MASTER.

In an action for injuries to an employé caused by a fall from a stage upon which the employé, who was at least partially intoxicated, was engaged in unloading coal from a vessel, evidence held insufficient to warrant the jury in finding that the master had failed to furnish a safe place to work, and therefore to require the direction of a verdict for defendant.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*]

4. MASTER AND SERVANT (§ 286*)-INJURIES SERVANT-ACTIONS- QUESTIONS FOR

ΤΟ

JURY.

While the jury are the proper judges of questions of fact, the question of the negligence

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

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of a master, in failing to provide a safe place | for men to work upon. The following will for work, becomes a question of law, where the give a sufficiently approximate profile view evidence on that issue is such that only one of the situation: conclusion can be drawn by reasonable men.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]

Exceptions from Supreme Judicial Court, Knox County, at Law.

Case to recover for personal injuries by Alvah Lindsey against Fred R. Spear. Verdict directed for defendant, and plaintiff excepts. Exceptions overruled.

Argued before SAVAGE, C. J., and BIRD, HALEY, HANSON, and PHILBROOK, JJ.

Philip Howard, of Rockland, for plaintiff. Arthur S. Littlefield, of Rockland, for defendant.

SAVAGE, C. J. Case to recover for injuries caused by defendant's alleged negli gence. The presiding justice directed a verdict for the defendant, and the plaintiff excepted.

The plaintiff was employed by the defendant in unloading coal from a vessel. The coal was being hoisted by means of shears and hoisting gear from the hold of the vessel in tubs to the level of the stage on which the plaintiff worked, and was then emptied from the tubs into wheelbarrows, and the plaintiff's particular duty was to wheel it from the tubs across the stage and dump it in the shed. It was also his duty, when a tub was hoisted, to assist in emptying or dumping it into his wheelbarrow. It took two tubs, about 1,000 pounds of coal, to fill the wheelbarrow. When the accident happened, one tub had already been emptied into the barrow, and another one was hoisted. The plaintiff described what followed in

these words:

* *

"When this tub came up we dumped it. Those shears would certainly always have a shake; when this rocked, it rocked the whole stage, and something swiveled like that, and when it did I went over the line. * * * Something seemed to travel. I noticed something slipped under my feet, and, when it did, it throwed me right over the line."

The stage was a completed structure. One end was suspended by chains attached to the shears overhead. The other end rested on a platform, which was several feet above the wharf. When not in use, it appears to have been pulled in. When a vessel came to the wharf to be unloaded, it was pushed out with crowbars, so that, when ready for use, both the shears and the front end of the staging extended over the side of the vessel. The stage was then fastened in position by iron dogs on either side driven into the platform on which it rested. It was further stayed by planks or bars on the platform extending from cleats on the inner end of the stage to the end of the coal shed. And, so long as it remained stayed in this manner, no question is made but that it was reasonably safe

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A rope or life line was stretched from post to post across the front end of the stage, about 21⁄2 feet from the floor. The ends were attached to the outer rail posts. Before the plaintiff was employed, the stage had been pushed into place for work, and its condition remained unchanged until the time of the accident.

[1, 2] It is the undoubted rule that it is the duty of the master to use reasonable care to provide a reasonably safe place for his servant to work in. It is also the rule that the servant assumes the risks which are ordinarily incident to his employment, and such other risks as are known to him, or which, by the exercise of ordinary care, he ought to know. He assumes the obvious These principles have been declared so many times that citation of authorities is unnecessary.

risks.

[3] The plaintiff in his specifications alleges in substance that the accident was due to one or two or all of the following factors, namely: (1) The insufficiency in height and material of the "lifeline," which we assume was placed where it was to protect men from falling off the stage either by accident or when it was shaken by the dumping of coal; (2) the rotten and decayed condition of the platform, so that the dogs would not hold; (3) the insecure fastening of the iron dogs, whereby the stage could sway; (4) the insecure fastening of the braces, so that they became displaced, with the same effect; and (5) that the staging was improperly fastened to the shears. As to the insufficiency of the lifeline, it need only be said that the defect, if defect it was, was an obvious one, the risk of which was assumed by the plaintiff. The plaintiff had worked on this stage many times, and was perfectly familiar with its construction. As to the other supposed defects, there is absolutely no evidence of them, except the rocking or swaying of the stage testified to by the plaintiff and by one other witness whose presence there is denied and is doubtful. There is no evidence that the dogs had failed to hold, or that the

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

braces were out of place. If either of these things had occurred, it must necessarily have been observed after the accident. There were six or eight men working on this coal operation. They were known to the plaintiff. It is not shown that they were unfriendly to him. If the iron dogs were found to be insecure, or the braces out of place after the accident, it seems beyond belief that some of them would not have known of it, and, if they had known of it, it seems equally beyond belief that the knowledge should not have come to the plaintiff. All the witnesses who noticed the staging afterwards, and there were several, declare that there was no trouble with dogs or braces. It is testified to by one witness that planking in the platform was rotten, but that is of no consequence if the dogs held. The plaintiff suggests that the defects, if they existed, may have been remedied before the witnesses had opportunity to observe them. But there is no evidence to support the suggestion.

On the other hand, the case shows that the stage, from the very manner of its construction, was not and could not have been entirely steady and firm when great weights of coal were dumped from the tubs to the barThat it should shake or sway a little was inevitable. And this must have been known to the plaintiff, and was assumed by

row.

him.

Now it appears that the plaintiff had been drinking that morning. He admits it. The evidence shows beyond any reasonable question that he was more or less intoxicated, and that he had been warned that day by fellow workmen of the danger in working upon that stage in an intoxicated condition. His description of his sensations at the time of the rocking and swiveling of the stage are not unlike what might be expected in the case of an intoxicated man.

[4] It is true, as the learned counsel for the plaintiff urges, that the questions we are discussing are questions of fact. It is true, too, that the jury is the proper tribunal to determine questions of fact. But, when the evidence as to negligence in a case like this is of such a character that only one conclusion can be drawn by reasoning and reasonable men, it becomes a question of law (Maine Water Co. v. Crane, 99 Me. 485, 59 Atl. 953), and the judgment of the court must follow the conclusion of fact. And, if a verdict of the jury should happen to be contrary to that conclusion, it is the duty of the court to set it aside.

Again, the contention of the plaintiff rests solely upon an inference which it draws from what he calls a "rocking" of the stage. There is at least as strong an inference that the rocking which the plaintiff seemed to feel was due to his intoxication.

Upon the whole, we feel bound to say that the evidence, if it had been submitted to a

jury, would not have warranted them in finding that the defendant had failed to perform his duty to the plaintiff, with respect to the safety of the stage on which the plaintiff worked. It was therefore the duty of the presiding justice to direct a verdict for the defendant. Frederickson v. Central Wharf Towboat Co., 101 Me. 406, 64 Atl. 666; Young v. Chandler, 102 Me. 251, 66 Atl. 539; Veano v. Crafts, 109 Me. 40, 82 Atl. 293. Exceptions overruled.

(112 Me. 263)

DUPLISSY v. MAINE CENT. R. CO. (Supreme Judicial Court of Maine. Oct. 17, 1914.)

1. RAILROADS (§ 482*)-FIRES-ACTIONS-SUFFICIENCY OF EVIDENCE.

In an action for the value of buildings and their contents destroyed by fire, evidence held sufficient to support a jury finding that the fire was caused by sparks from a railroad locomotive.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1730-1732, 1734-1736; Dec. Dig. 8 482.*]

2. DAMAGES (§ 139*)-EXCESSIVENESS-INJURIES TO PROPERTY.

In an action against a railroad company for the value of a hotel and outbuildings and their contents destroyed by fire, where the evidence showed the fair value of the buildings to personal property amounted to $3,000, and the be from $3,000 to $3,500, while the schedule of furniture for the most part had been purchased within a year, a verdict for $5,341.67 was not so excessive as to require interference.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 400-403; Dec. Dig. § 139.*] 3. RAILROADS (§ 481*)-INJURIES FROM FIRE

EVIDENCE-RELEVANCY-SIMILAR

MATTERS.

In an action against a railroad company for the destruction of a hotel and its contents engine was equipped with a spark arrester in by fire, where the company showed that its good condition, and called witnesses who expressed the opinion that sparks could not have been emitted that would have set the fire, a person living five houses from the hotel was properly permitted to testify as to finding a large quantity of cinders on her piazza the morning after the fire.

Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.*]
Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.*]
4. TRIAL (§ 194*)-INSTRUCTIONS-INVADING
PROVINCE OF JURY.

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

An instruction prescribing in detail the character of the evidence required, and which would have necessitated the court passing upon matters clearly within the province of the jury, was properly refused.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]

Motion and Exceptions from Supreme Judicial Court, Penobscot County, at Law.

Action by Edward W. Duplissy against the Maine Central Railroad Company. Verdict for plaintiff, and defendant brings exceptions and moves for a new trial. Motion and exceptions overruled.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, BIRD, HALEY, and PHILBROOK, JJ.

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

James D. Rice, of Bangor, and Wm. R. I Pattengall,, of Waterville, for plaintiff. Fellows & Fellows, of Bangor, for defendant.

CORNISH, J. Action on the case to recover damages for the loss of a hotel in Kingman, with outbuildings, stable, and contents, including furniture, supplies, and personal effects, alleged to have been destroyed by fire communicated by a locomotive of the defendant.

Liability.

[1] The evidence justifying the finding of liability is ample. It is for the most part undisputed. The plaintiff's premises adjoined the railroad location, being situated northerly thereof, with the shed nearest the right of way and the long ell and main part extending to Marginal street. A freight train of the defendant, with 12 empty cars, left Mattawamkeag at 1:50 on the morning of September 29, 1913, going east, passing Kingman about 2:15 a. m., and arriving at Danforth at 3:15 a. m. The train did not stop at Kingman station. There was an upgrade from the station for nearly one-half a mile, and the hotel was situated about midway this distance. The train was 50 minutes late. The night was unusually dry; there being practically no dew on the grass, as several witnesses stated. The wind was light, but from a southerly or southwesterly direction, blowing from the track toward the buildings.

One witness testified that he was up at 2 o'clock and looked toward the hotel, and no fire was visible then. Between that time and the time when the fire was discovered, 2:30 or 2:45 a. m., this freight train passed by. The fire originated on the part of the premises toward the railroad and spread to the rest of the buildings. A large number of witnesses testified that when they first saw

the fire it was on the southerly side of the shed and creeping up onto the roof. The posts of an old pigpen which had formerly stood between the shed and the track were burned, showing that the grass between the location and the buildings was on fire.

All other sources, except the engine, are practically eliminated. There had been two fires in the hotel, one a coal fire in the office, and the other a wood fire in the kitchen for the 6 o'clock supper. The latter had gone! out, and the former could not have caused the fire in question, because the people were in and about the office, as well as the other rooms in the ell and main part, at the same time that the fire was burning in the shed.

The defendant attempted to suggest two other sources, but failed utterly. The fireman on the locomotive testified that, while going through the town at the rate of 20 or 22 miles an hour, he saw through a crack in the stable a light that looked like a lantern, but he saw no fire of any kind. This story has many inherent improbabilities, but the theory failed because in the first place the

stable did not take fire until after the shed, and from the shed or ell, and in the second place it was found locked when the plaintiff. and his boarder went to it and removed the animals and contents. The other suggested source is within the hotel, and, to prove this, three employés of the defendant, who were living in a caboose at the station, testified that when they reached the fire it seemed to be on the roof of the ell near the main part, and they saw no fire elsewhere. But this testimony, negative at the best, was overwhelmed by that of the neighbors, who clearly prove that the fire spread from the shed to the ell and thence to the main part.

The only other evidence introduced by the defendant was that the engine was equipped with a spark arrester in good condition, and, in the opinion of the witnesses, sparks could not have been emitted that would have set the fire. But, as showing the distance to which the sparks or cinders could fly, one neighbor testified to finding a large quantity of cinders on her piazza the same morning; her premises being in close proximity to the burned buildings and adjoining the railroad location.

Without discussing the evidence in detail further, it is sufficient to say that, the proximity of the premises, the direction of the wind, the dryness of the night, the time of the passage of the train, the discovery of the fire within a short time thereafter, the location of the fire when first discovered, and the absence of all other reasonably probable sources justified the jury in drawing the inference that the locomotive of the defendant caused the fire. As was said in Jones v. Railroad Co., 106 Me. 442, 76 Atl. 710:

"It is a question of reasonable inference from all the facts and circumstances, and the evidence should be of such a character that a reasoning mind shall see the connection between cause and effect."

That test is fully met by the evidence in this case.

Damages.

[2] The plaintiff's evidence showed the fair value of the buildings to be $3,000 or $3,500. The schedule of personal property amounted to $3,000, making an outside limit of $6,500. The verdict was $5,341.67. This might be divided into buildings $3,500 and personal property $1,841.67, and the evidence would justify the finding. The furniture was for the most part nearly new, having been purchased within a year. The defendant offered no evidence whatever on values, either of buildings or contents, and it would seem that, on the uncontradicted evidence offered by the plaintiff, the damages are not so manifestly excessive as to warrant the interference of the court.

Exceptions.

[3] 1. The testimony of Mrs. Leach, a neighbor, who lived five houses west of the hotel, as to finding a large quantity of cinders on

her piazza the morning after the fire, was properly admitted. The capacity of the engine to throw sparks was an issue, and upon that point her evidence was pertinent. The objections raised by the defendant go to the weight of the evidence rather than to its admissibility.

[4] 2. The instruction requested by the defendant was properly refused, as it asked the court to prescribe in detail the character of the evidence required in this class of cases and to pass upon matters that are clearly within the province of the jury. The court, in the charge, properly instructed the jury upon the burden of proof resting on the plaintiff, and fully protected the defendant's rights in all respects.

Motion and exceptions overruled.

(112 Me. 248)

STATE v. VANNAH.

Exceptions from Superior Court, Kennebec County, at Law.

Frances A. Vannah, alias Frank Vannah, was convicted of murder, and he brings exceptions. Overruled.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

Scott Wilson, Atty. Gen., and W. H. Fisher, Co. Atty., of Augusta, for the State. B. F. Maher, of Augusta, for defendant.

HANSON, J. This case is before the court on exceptions to the order of the justice of the superior court for the county of Kennebec, overruling four motions filed at the January term of that court, 1914. The respondent was indicted for the murder of one Edward E. Hardy, at the April term of that court, 1913, and at the September term, on his own motion, was committed to the State

(Supreme Judicial Court of Maine. Oct. 10, Hospital for observation. He was tried at the

1914.)

1. CONSTITUTIONAL LAW (§ 197*)-STATUTES (§ 267*)-CRIMINAL PROCEDURE-RETROACTIVE LEGISLATION.

Rev. St. c. 79, § 90, as amended by Laws 1913, c. 220, § 3, provides that original and appellate jurisdiction in all criminal matters in the counties of Cumberland and Kennebec, and all powers incident thereto, or formally exercised by the Supreme Judicial Court, but conferred on and exercised by the superior courts, are continued, and section 4 declares that any indictment for murder returned by a grand jury in the superior court at the April term thereof, in the year 1913, shall be in order for trial at the next September term of the court, which shall have jurisdiction of all matters pertaining thereto. Held that, since such act did not affect a crime previously committed but related entirely to the remedy, it was constitutional and applicable to a prosecution for murder committed prior to the adoption of the act, and, as to such prosecution, was neither retroactive legislation nor an ex post facto law.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 550; Dec. Dig. § 197;* Statutes, Cent. Dig. §§ 350-359; Dec. Dig. § 267.*] 2. CRIMINAL LAW (§ 116*)-VENUE-CHANGE OF VENUE.

The right to a change of venue is not a common-law right, but is created and regulated by statute, and is a matter of procedure over which the Legislature has plenary power.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 236; Dec. Dig. § 116.*] 3. CONSTITUTIONAL LAW (§ 197*)-TRIAL BY JURY-SELECTION FROM DIFFERENT COUNTY -Ex POST FACTO LAW.

The right to have a jury selected from another county or district is not one of the rights guaranteed by the Constitution, prohibiting the passage of ex post facto laws.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 550; Dec. Dig. § 197.*] 4. CONSTITUTIONAL LAW (§ 197*)-Ex POST FACTO LAW-CONSTITUTION OF TRIAL COURT -CHANGE.

A statute merely changing the Constitution of the trial court, and leaving unchanged all the substantial protections which the law in force at the time of the commission of an alleged offense threw about accused, was not ex post facto.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 550; Dec. Dig. § 197.**]

January term, 1914, and was found guilty of murder.

The motions in their order were: (1) To continue to the Supreme Judicial Court. (2) To continue to a later term of the superior court, when a justice of the Supreme Judicial Court may preside. (3) Refusing to plead. (4) In arrest of judgment. The reasons stated in the several motions are the same. The first motion is as follows:

"And now comes the respondent and moves: First. That the superior court is without jurisdiction of the offense alleged in the indictment. "Second. And the respondent further moves that said superior court is without jurisdiction in offenses such as charged in the aforesaid indictment because the alleged offense was committed on the 20th day of March, A. D. 1913, and said act, attempting to confer jurisdiction upon the aforesaid court, was passed on the 7th day of April, A. D. 1913, and took effect July 1, 1913, and was accordingly, in its attempt to reach the aforesaid case at bar, retroactive legislation and ex post facto in its nature. "Third. And the respondent further moves that said superior court is without jurisdiction of the offense charged in this indictment, bewherein jurisdiction was sought to be conferred cause chapter 220 of the Public Laws of 1913, upon said court in section 4 of said act, by its terms would make reply to this particular case, and was in effect the creation of a court to try a particular case.

"Fourth. And the respondent further moves that he was deprived of one of his constitutional rights to seek and obtain change of venue for cause sought, which cause he says exists because of the silence of the act, wherein jurisdiction for offenses, such as is charged in this indictment, is sought to be conferred upon said superior court.

"Fifth. And the respondent further moves, because by virtue of the statute in such case made and provided, in offenses such as charged in this indictment, one of the justices of the Supreme Judicial Court to be designated by the Chief Justice thereof shall preside, which designation has not been made and no such justice presiding, this court is without jurisdiction to proceed in the absence of such designation, in conformity with the statute.

"Wherefore, and because of the aforesaid reasons now before the impaneling of a jury, the re

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

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