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Argued before SAVAGE, C. J., and SPEAR, , 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, unD. I. Gould, of Bangor, for plaintiff. E. c. less she has expressly undertaken to be perRyder, of Bangor, for defendant.

sonally responsible for them.

[2] But the plaintiff may recover for the SAVAGE, C. J.

undoubted shock of the accident, and for all Case to recover for injuries sustained in a collision between the the suffering, mental and physical, which it juries sustained in a collision between the caused. The loss of health and strength was carriage in which the plaintiff was riding and the electric car of the defendant company.

her personal loss, irrespective of its effect The plaintiff obtained a verdict for $1,200. upon her ability to labor. For the endurance The case comes up on the defendant's motion of the nervous condition caused by her infor a new trial on the usual grounds. But juries she is entitled to compensation. Such counsel have argued only the question of dam- suffering may be both mental and physical.

There is no standard by which the damages ages, and to that question we shall confine

for such injuries as are shown in this case ourselves. The plaintiff is a married woman, and at

can be measured. In the end the question the time of the accident was about 71 years ment of the jury, to award such damages as

must be left to the sound sense and good judgof age, and in ordinarily good health for a woman of her age. The carriage in which seem to them to be fairly compensatory. And she was riding was overturned, and she was

when it appears that the jury have discharg

ed their duty with fidelity, and have reached thrown violently upon the ground, between

a reasonable approximation of the damages, the railroad tracks. The evidence would warrant a jury in finding that she sustained the court will not interfere, even though the a severe nervous shock; that two of her ribs verdict should seem to them somewhat large.

When the verdict is within the bounds of were broken, and that she was considerably bruised about her back and other parts of reason, the court will not institute a paring her body; that in consequence of her injuries process to make it conform more exactly to

their own views. Such is this case. she suffered great pain for several weeks on

Motion overruled. account of the irritation caused by the pricking ends of the fractured ribs, that she suffered also in other ways; that it was nec

(112 Me. 230) essary, in order to ease her pain, to turn her

LINDSEY V. SPEAR. in bed and give her a rubbing half a dozen (Supreme Judicial Court of Maine.

Oct. 8, times a night; that she was unable to sleep

1914.) well nights, that as a result of the shock a 1. MASTER AND SERVANT (88. 101, 102*)-INserious nervous condition was developed, JURIES TO SERVANT-DUTY OF MASTER-SAFE from which she had not fully recovered at PLACE TO WORK, the time of the trial, 14 months after the in

A master must use reasonable care to projury. Her attending physician, in testifying, vide a reasonably safe place for his servant

to spoke of this condition as "this horrible state

[Ed. Note.-For other cases, see Master and of the nervous system.” And the jury might Servant, Cent. Dig. $$ 135, 171, 174, 178–184, find that, although the fractured ribs united 192; Dec. Dig. $$ 101, 102.*] well in a few weeks, she suffered even up to 2. MASTER AND SERVANT (88 206, 217*)-INthe trial from pain and lameness in her right

JURIES TO SERVANT-ASSUMPTION OF RISK. side, and was unable to do any work of any dinarily incident to his employment, and such

A servant assumes the risks which are orconsequence.

other risks as are known to him, or which, by It appears that while confined to her bed the exercise of ordinary care, he ought to know. in consequence of her injuries, the plaintiff

[Ed. Note. For other cases, see Master and had an attack, but not a severe one, of hy- Servant, Cent. Dig. $8 550, 574-600; Dec. Dig. postatic pneumonia, which is a phase of pneu- 3. MASTER AND SERVANT (8278*)—INJURIES

88 206, 217.*] monia incident to old age. It is not claimed

TO SERVANT – SUFFICIENCY OF EVIDENCEthat the pneumonia was caused by her physi- NEGLIGENCE OF MASTER. cal injuries. Whether she was more suscepti

In an action for injuries to an employé ble to it by reason of her condition, does not caused by a fall from a stage upon which the

employé, who was at least partially intoxicated, clearly appear.

was engaged in unloading coal from a vessel, [1] Being a married woman and living evidence held insufficient to warrant the jury with her husband, the plaintiff is not entitled in finding that the master had failed to furnish to recover for loss of ability to do domestic a safe place to work, and therefore to require

the direction of a verdict for defendant. labor in their home, nor for the expenses in

[Ed. Note.-For other cases, see Master and caring for her, surgically and otherwise. Un- Servant, Cent. Dig. $$ 954, 956-958, 960–969, der the marital relation, the labor in the 971, 972, 977; Dec. Dig. § 278.*] house belonged to her husband. Her inabili. 4. MASTER AND SERVANT (8 286*)-INJURIES ty to perform that labor is his loss. And

TO

SERVANT - ACTIONS - QUESTIONS FOR

JURY. on the other hand, as the law imposes on

While the jury are the proper judges of him the duty of caring for her in sickness as questions of fact, the question of the negligence *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-Wo. Series & Rep'r Indexes

SHEARS

STAGE

B

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. 8 286.*]

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

SHED Case to recover for personal injuries by

PLATFORM 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.

WHARF Philip Howard, of Rockland, for plaintiff.

A- Dog. Arthur S. Littlefield, of Rockland, for de

B.C-BRACE.

0.0-E,E-CHAINS. fendant, SAVAGE, C. J. Case to recover for in

A rope or life line was stretched from post juries caused by defendant's alleged negli- to post across the front end of the stage, gence. The presiding justice directed a ver about 242 feet from the floor. The ends dict for the defendant, and the plaintiff ex

were attached to the outer rail posts. Becepted.

fore the plaintiff was employed, the stage The plaintiff was employed by the defend- had been pushed into place for work, and ant in unloading coal from a vessel. The its condition remained unchanged until the coal was being hoisted by means of shears time of the accident. and hoisting gear from the hold of the ves

[1, 2] It is the undoubted rule that it is sel in tubs to the level of the stage on which the duty of the master to use reasonable the plaintiff worked, and was then emptied care to provide a reasonably safe place for from the tubs into wheelbarrows, and the that the servant assumes the risks which

his servant to work in. It is also the rule plaintiff's particular duty was to wheel it from the tubs across the stage and dump it are ordinarily incident to his employment, in the shed. It was also his duty, when a and such other risks as are known to him, tub was hoisted, to assist in emptying or

or which, by the exercise of ordinary care, dumping it into his wheelbarrow. It took he ought to know.

It took he ought to know. He assumes the obvious two tubs, about 1,000 pounds of coal, to fill risks. These principles have been declared the wheelbarrow. When the accident hap- so many times that citation of authorities is pened, one tub had already been emptied in

unnecessary.

[3] The plaintiff in his specifications alto the barrow, and another one was hoisted. The plaintiff described what followed in leges in substance that the accident was due these words:

to one or two or all of the following factors, “When this tub came up we dumped it. namely: (1) The insufficiency in height and Those shears would certainly always have a material of the “lifeline,” which we assume shake; when this rocked, it rocked the whole was placed where it was to protect men from stage,

and something swiveled like falling off the stage either by accident or that,' and when it did I went over the line. when it was shaken by the dumping of coal;

* Something seemed to travel. I noticed when it was shaken by the dumping of coal; something slipped under my feet, and, when it (2) the rotten and decayed condition of the did, it throwed me right over the line.” platform, so that the dogs would not hold;

The stage was a completed structure. One (3) the insecure fastening of the iron dogs, end was suspended by chains attached to the whereby the stage could sway; (4) the inseshears overhead. The other end rested on cure fastening of the braces, so that they bea platform, which was several feet above came displaced, with the same effect; and (5) the wharf. When not in use, it appears to that the staging was improperly fastened to have been pulled in. When a vessel came to the shears. As to the insufficiency of the the wharf to be unloaded, it was pushed out lifeline, it need only be said that the defect, with crowbars, so that, when ready for use, if defect it was, was an obvious one, the both the shears and the front end of the stag- risk of which was assumed by the plaintiff. ing extended over the side of the vessel. The The plaintiff had worked on this stage many stage was then fastened in position by iron times, and was perfectly familiar with its dogs on either side driven into the platform construction. As to the other supposed on which it rested. It was further stayed defects, there is absolutely no evidence of by planks or bars on the platform extending them, except the rocking or swaying of the from cleats on the inner end of the stage to stage testified to by the plaintiff and by the end of the coal shed. And, so long as it one other witness whose presence there is remained stayed in this manner, no ques- denied and is doubtful. There is no evidence tion is made but that it was reasonably safe 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 *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 jury, would not have warranted them in things had occurred, it must necessarily have finding that the defendant had failed to been observed after the accident. There perform his duty to the plaintiff, with rewere six or eight men working on this coal spect to the safety of the stage on which the operation. They were known to the plaintiff. plaintiff worked. It was therefore the duty It is not shown that they were unfriendly of the presiding justice to direct a verdict to him. If the iron dogs were found to be for the defendant. Frederickson v. Central insecure, or the braces out of place after the Wharf Towboat Co., 101 Me. 406, 64 Atl. accident, it seems beyond belief that some 666; Young v. Chandler, 102 Me. 251, 66 Atl. of them would not have known of it, and, 539; Veano v. Crafts, 109 Me. 40, 82 Atl. 293. if they had known of it, it seems equally be- Exceptions overruled. yond belief that the knowledge should not have come to the plaintiff. All the witnesses who noticed the staging afterwards, and

(112 Me. 263)

DUPLISSY V. MAINE CENT. R. CO. there were several, declare that there was no trouble with dogs or braces. It is testi

(Supreme Judicial Court of Maine. Oct. 17,

1914.) fied to by one witness that planking in the platform was rotten, but that is of no conse

1. RAILROADS ($ 482*)-FIRES-ACTIONS_SUF

FICIENCY OF EVIDENCE. quence if the dogs held. The plaintiff sug. In an action for the value of buildings and gests that the defects, if they existed, may their contents destroyed by fire, evidence held have been remedied before the witnesses had sufficient to support a jury finding that the fire

was caused by sparks from a railroad locomoopportunity to observe them. But there is tive. no evidence to support the suggestion.

[Ed. Note.-For other cases, see Railroads, On the other hand, the case shows that the Cent. Dig. 88 1730-1732, 1734–1736; Dec. Dig. stage, from the very manner of its construc- $ 482.*] tion, was not and could not have been entire-2. DAMAGES (8 139*)-EXCESSIVENESS-INJU

RIES TO PROPERTY. ly steady and firm when great weights of

In an action against a railroad company coal were dumped from the tubs to the bar- for the value of a hotel and outbuildings and row. That it should shake or sway a little their contents destroyed by fire, where the eviwas inevitable. And this must have been dence showed the fair value of the buildings to known to the plaintiff, and was assumed by personal property amounted to $3,000, and the

be from $3,000 to $3,500, while the schedule of him.

furniture for the most part had been purchased Now it appears that the plaintiff had been within a year, a verdict for $5,341.67 was not drinking that morning. He admits it. The

He admits it. The so excessive as to require interferencė.

[Ed. Note.--For other cases, see Damages, evidence shows beyond any reasonable ques- Cent. Dig. 88 400-403; Dec. Dig. § 139.*] tion that he was more or less intoxicated, 3. RAILROADS ($ 481*)-INJURIES FROM FIREand that he had been warned that day by EVIDENCE-RELEVANCY-SIMILAR MATTERS. fellow workmen of the danger in working In an action against a railroad company upon that stage in an intoxicated condition. for the destruction of a hotel and its contents His description of his sensations at the time engine 'was equipped with a spark arrester in of the rocking and swiveling of the stage good condition, and called witnesses who exare not unlike what might be expected in the pressed the opinion that sparks could not have case of an intoxicated man.

been emitted that would have set the fire, a [4] It is true, as the learned counsel for properly permitted to testify as to finding a

person living five houses from the hotel was the plaintiff urges, that the questions we are large quantity of cinders on her piazza the discussing are questions of fact. It is true, morning after the fire. too, that the jury is the proper tribunal to Cent. Dig. Sj 1717-1729; Dec. Dig. $ 481.*]

[Ed. Note.-For other cases, see Railroads, determine questions of fact. But, when the evidence as to negligence in a case like this 4. TRIAL (8 194*)-INSTRUCTIONS-INVADING

PROVINCE OF JURY. is of such a character that only one conclu- An instruction prescribing in detail the sion can be drawn by reasoning and reason character of the evidence required, and which able men, it becomes a question of law would have necessitated the court passing upon (Maine Water Co. v. Crane, 99 Me. 485, 59 matters clearly within the province of the jury,

was properly refused. Atl. 953), and the judgment of the court

[Ed. Note.-For other cases, see Trial, Cent. must follow the conclusion of fact. And, if Dig. $$ 413, 436, 439–441, 446–454, .456–466 ; a verdict of the jury should happen to be Dec. Dig. & 194.*] contrary to that conclusion, it is the duty

Motion and Exceptions from Supreme Judiof the court to set it aside.

cial Court, Penobscot County, at Law. Again, the contention of the plaintiff rests Action by Edward W. Duplissy against the solely upon an inference which it draws Maine Central Railroad Company. Verdict from what he calls a “rocking” of the stage. for plaintiff, and defendant brings exceptions There is at least as strong an inference that and moves for a new trial. Motion and exthe rocking which the plaintiff seemed to ceptions overruled. feel was due to his intoxication.

Argued before SAVAGE, C. J., and SPEAR, Upon the whole, we feel bound to say that CORNISH, BIRD, HALEY, and PHILthe evidence, if it had been submitted to a BROOK, JJ.

James D. Rice, of Bangor, and Wm. R., stable did not take fire until after the shed, Pattengall,, of Waterville, for plaintiff. Fel- and from the shed or ell, and in the second lows & Fellows, of Bangor, for defendant. place it was found locked when the plaintiff

and his boarder went to it and removed the CORNISH, J. Action on the case to re- animals and contents. The other suggested cover damages for the loss of a hotel in King- source is within the hotel, and, to prove this, man, with outbuildings, stable, and contents, three employés of the defendant, who were including furniture, supplies, and personal living in a caboose at the station, testified effects, alleged to have been destroyed by that when they reached the fire it seemed to fire communicated by a locomotive of the de- be on the roof of the ell near the main part, fendant.

and they saw no fire elsewhere. But this

testimony, negative at the best, was overLiability.

whelmed by that of the neighbors, who clear[1] The evidence justifying the finding of ly prove that the fire spread from the shed liability is ample. It is for the most part un- to the ell and thence to the main part. disputed. The plaintiff's premises adjoined The only other evidence introduced by the the railroad location, being situated norther-defendant was that the engine was equipped ly thereof, with the shed nearest the right of with a spark arrester in good condition, and, way and the long ell and main part extending in the opinion of the witnesses, sparks could to Marginal street. A freight train of the not have been emitted that would have set defendant, with 12 empty cars, left Matta- the fire.

But, as showing the distance to wamkeag at 1:50 on the morning of Septem- which the sparks or cinders could fly, one ber 29, 1913, going east, passing Kingman neighbor testified to finding a large quantity about 2:15 a. m., and arriving at Danforth of cinders on her piazza the same morning: at 3:15 a. m. The train did not stop at King- her premises being in close proximity to the man station. There was an upgrade from burned buildings and adjoining the railroad the station for nearly one-half a mile, and location. the hotel was situated about midway this dis

Without discussing the evidence in detail tance. The train was 50 minutes late. The further, it is sufficient to say that, the proxnight was unusually dry; there being practi- imity of the premises, the direction of the cally no dew on the grass, as several wit-wind, the dryness of the night, the time of nesses stated. The wind was light, but from the passage of the train, the discovery of the a southerly or southwesterly direction, blow-fire within a short time thereafter, the locaing from the track toward the buildings. tion of the fire when first discovered, and the

One witness testified that he was up at absence of all other reasonably probable 2 o'clock and looked toward the hotel, and sources justified the jury in drawing the inno fire was visible then. Between that time ference that the locomotive of the defendant and the time when the fire was discovered, caused the fire. As was said in Jones v. Rail2:30 or 2:45 a. m., this freight train passed road Co., 106 Me. 442, 76 Atl. 710: by. The fire originated on the part of the "It is a question of reasonable inference from premises toward the railroad and spread to all the facts and circumstances, and the evithe rest of the buildings. A large number of dence should be of such a character that a rea

soning mind shall see the connection between witnesses testified that when they first saw

cause and effect." the fire it was on the southerly side of the

That test is fully met by the evidence in shed and creeping up onto the roof. The

this case. posts of an old pigpen which had formerly stood between the shed and the track were

Damages. burned, showing that the grass between the [2] The plaintiff's evidence showed the fair location and the buildings was on fire.

value of the buildings to be $3,000 or $3,500. All other sources, except the engine, are The schedule of personal property amounted practically eliminated. There had been two to $3,000, making an outside limit of $6,500. fires in the hotel, one a coal fire in the office, The verdict was $5,341.67. This might be and the other a wood fire in the kitchen for divided into buildings $3,500 and personal the 6 o'clock supper. The latter had gone property $1,841.67, and the evidence would out, and the former could not have caused justify the finding. The furniture was for the fire in question, because the people were the most part nearly new, having been purin and about the office, as well as the other chased within a year. The defendant offered rooms in the ell and main part, at the same no evidence whatever on values, either of time that the fire was burning in the shed. buildings or contents, and it would seem that,

The defendant attempted to suggest two on the uncontradicted evidence offered by other sources, but failed utterly. The fire- the plaintiff, the damages are not so maniman on the locomotive testified that, while festly excessive as to warrant the interfergoing through the town at the rate of 20 or ence of the court. 22 miles an hour, he saw through a crack in the stable a light that looked like a lantern,

Exceptions. but he saw no fire of any kind. This story [3] 1. The testimony of Mrs. Leach, a neighhas many inherent improbabilities, but the bor, who lived five houses west of the lotel, theory failed because in the first place the as to finding a large quantity of cinders on

her piazza the morning after the fire, was Exceptions from Superior Court, Kennebec properly admitted. The capacity of the en- County, at Law. gine to throw sparks was an issue, and upon Frances A. Vannah, alias Frank Vannah, that point her evidence was pertinent. The was convicted of murder, and he brings exobjections raised by the defendant go to the ceptions. Overruled. weight of the evidence rather than to its ad

Argued before SAVAGE, C. J., and CORNmissibility.

ISH, BIRD, HALEY, HANSON, and PHIL[4] 2. The instruction requested by the de- BROOK, JJ. fendant was properly refused, as it asked the court to prescribe in detail the character Co. Atty., of Augusta, for the State. B. F.

Scott Wilson, Atty. Gen., and W. H. Fisher, of the evidence required in this class of cases

Maher, of Augusta, for defendant. and to pass upon matters that are clearly within the province of the jury. The court, in the charge, properly instructed the jury

HANSON, J. This case is before the court upon the burden of proof resting on the plain on exceptions to the order of the justice of tiff, and fully protected the defendant's rights the superior court for the county of Kennein all respects.

bec, overruling four motions filed at the Motion and exceptions overruled.

January term of that court, 1914. The respondent was indicted for the murder of one

Edward E. Hardy, at the April term of that (112 Me. 248)

court, 1913, and at the September term, on STATE v. VANNAH.

his own motion, was committed to the State (Supreme Judicial Court of Maine. Oct. 10, Hospital for observation. He was tried at the 1914.)

January term, 1914, and was found guilty 1. CONSTITUTIONAL LAW ($ 197*)-STATUTES of murder.

($ 267*)-CRIMINAL PROCEDURE-RETROACTIVE LEGISLATION.

The motions in their order were: (1) To Rev. St. c. 79, $ 90, as amended by Laws continue to the Supreme Judicial Court. (2) 1913, c. 220, $ 3, provides that original and ap- To continue to a later term of the superior pellate jurisdiction in all criminal matters in court, when a justice of the Supreme Judithe counties of Cumberland and Kennebec, and all powers incident thereto, or formally 'exer- cial Court may preside. (3) Refusing to cised by the Supreme Judicial Court, but con- plead. (4) In arrest of judgment. The reaferred on and exercised by the superior courts, sons stated in the several motions are the are continued, and section 4 declares that any indictment for murder returned by a grand jury same. The first motion is as follows: in the superior court at the April term thereof, “And now comes the respondent and moves: in the year 1913, shall be in order for trial at First. That the superior court is without juris. the next September term of the court, which diction of the offense alleged in the indictment. shall have jurisdiction of all matters pertain- "Second. And the respondent further moves ing thereto. Held that, since such act did not that said superior court is without jurisdiction affect a crime previously committed but related in offenses such as charged in the aforesaid inentirely to the remedy, it was constitutional and dictment because the alleged offense was comapplicable to a prosecution for murder commit- mitted on the 20th day of March, A. D. 1913, ted prior to the adoption of the act, and, as to and said act, attempting to confer jurisdiction such prosecution, was neither retroactive legis- upon the aforesaid court, was passed on the lation nor an ex post facto law.

7th day of April, A. D. 1913, and took effect [Ed. Note.-For other cases, see Constitutional July 1, 1913, and was accordingly, in its atLaw, Cent. Dig. $ 550; Dec. Dig. § 197;* Stat-tempt to reach the aforesaid case at bar, retroutes, Cent. Dig. $$ 350–359; Dec. Dig. 's 267.*] active legislation and ex post facto in its nature. 2. CRIMINAL LAW (8 116*)-VENUE-CHANGE that said superior court is without jurisdiction

"Third. And the respondent further moves OF VENUE.

of the offense charged in this indictment, beThe right to a change of venue is not a common-law right, but is created and regulated wherein jurisdiction was sought to be conferred

cause chapter 220 of the Public Laws of 1913, by statute, and is a matter of procedure over upon said court in section 4 of said act, by its which the Legislature has plenary power. terms would make reply to this particular case,

[Ed. Note.-For other cases, see Criminal and was in effect the creation of a court to Law, Cent. Dig. $ 236; Dec. Dig. $ 116.*] try a particular case. 3. CONSTITUTIONAL LAW ($ 197*)-TRIAL BY “Fourth. And the respondent further moves JURY-SELECTION FROM DIFFERENT COUNTY that he was deprived of one of his constitutional -Ex Post FACTO LAW:

rights to seek and obtain change of venue for The right to have a jury selected from an- cause sought, which cause he says exists because other county or district is not one of the rights of the silence of the act, wherein jurisdiction guaranteed by the Constitution, prohibiting the for offenses, such as is charged in this indictpassage of ex post facto laws.

ment, is sought to be conferred upon said supe[Ed. Note.-For other cases, see Constitutional rior court. Law, Cent. Dig. $ 550; Dec. Dig. § 197.*]

"Fifth. And the respondent further moves, be

cause by virtue of the statute in such case made 4. CONSTITUTIONAL LAW ($ 197*)-Ex Post and provided, in offenses such as charged in this FACTO LAW-CONSTITUTION OF TRIAL COURT indictment, one of the justices of the Supreme -CHANGE.

Judicial Court to be designated by the Chief A statute merely changing the Constitution Justice thereof shall preside, which designation of the trial court, and leaving unchanged all the has not been made and no such justice presiding, substantial protections which the law in force at this court is without jurisdiction to proceed in the time of the commission of an alleged offense the absence of such designation, in conformity threw about accused, was not ex post facto. with the statute.

[Ed. Note. For other cases, see Constitutional "Wherefore, and because of the aforesaid reaLaw, Cent. Dig. $ 550; Dec. Dig. $ 197.*] sons 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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