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the heir but indirectly. The construction while he was employed in the defendant's we give it renders section 34 of chapter 65, power house, and caused by the alleged negR. S., in harmony with the other provisions ligence of the defendant. Plea, the general of statute as interpreted by prior adjudica- issue. At the conclusion of the evidence, tions. Downing, Appellant, V. Porter, 9 counsel for the defendant moved that a verMass. 386; Veazie Bank v. Young, 53 Me. dict be directed for the defendant. 555, 560; Grant v. Bodwell, 78 Me. 462, 7tion was overruled. The case was then withAtl. 12; Stilphen, Appellant, ubi supra. drawn from the jury and reported to the The deceased intestate, Benjamin

Benjamin E. law court, with the stipulation that “if the Sprowl, upon the decision of the law court motion for the direction of a verdict for above referred to, would, if living, have had the defendant should have been granted, or the right to enter his appeal and prosecute if the decision shall otherwise be for the de it to conclusion. His administrator, as one fendant, judgment shall be entered for the claiming under him, has the same right as defendant. If the decision be for the plainhis intestate to do so.

tiff, the law court is to assess the damages." Attention is called to the fact that the ap Argued before WHITEHOUSE, C. J., and peal alleges that the appellant is aggrieved, SAVAGE, SPEAR, CORNISH, KING, and but it is fairly inferable from the other facts BIRD, JJ. stated that his intestate was aggrieved, and

Geo. F. & Leroy Haley, for plaintiff. that the appellant prosecutes the appeal as Cleaves, Waterhouse & Emery, for defendhis administrator.

ant. Exceptions overruled.

KING, J. Action of tort by the adminis

tratrix of the estate and widow of Charles (108 Me. 357) FOURNIER v. YORK MFG. CO.

Fournier, under the provisions of chapter

258, Laws 1909, to recover damages for the (Supreme Judicial Court of Maine. Oct.

death of the plaintiff's intestate while he 2, 1911.)

was employed in the defendant's power 1. MASTER AND SERVANT ($ 265*)-INJURY TO house, alleged to have been caused by the de

SERVANT – CONTRIBUTORY NEGLIGENCE
BURDEN OF PROOF.

fendant's negligence in not warning him of a The burden is on plaintiff to show affirm-danger incident to the place where he was atively that decedent did not, by his own fault, directed to work. The case is before this either directly or by legitimate inference contribute to the accident which caused his death. court on report. [Ed. Note.-For other cases, see Master and

The plaintiff's intestate and two other Servant, Cent. Dig. $ 908; Dec. Dig. $ 265.*] workmen were directed by the defendant's 2. MASTER AND SERVANT (8 265*)-INJURY TO "boss piper" to remove a short section of a SERVANT-CONTRIBUTORY NEGLIGENCE, six-inch iron pipe connecting two pumps in

Where the death of an employé was caused by his own act in producing a contact with a the power house, and replace it with another fuse box in a powerhouse, it must affirmatively piece of pipe to which was to be attached appear that in doing the act he was not negli- an air chamber. One of the three workmen, gent, but in the exercise of due care.

Charles Dawley, was an experienced pipe [Ed. Note.-For other cases, see Master and fitter, and the other two, Fournier and Evans, Servant, Cent. Dig. § 908; Dec. Dig. § 265.*]

were common laborers or helpers. The six3. MASTER AND SERVANT ($ 265*)-INJURY TO inch pipe was parallel with the floor of the

SERVANT - CONTRIBUTORY NÉGLIGENCE
EVIDENCE.

power house, and its top eight feet and ten Where an employé in a power house was inches above the floor. The distance from injured apparently by coming in contact with the top of this pipe to the ceiling was seven a fuse box, and there was no evidence whether

Sixteen inches behind he was reasonably attentive and alert to avoid feet and one inch. such contact, and he had worked for defendant and about thirty-two inches above the sixsome time, during which the power house was inch pipe, and apparently parallel with it, constructed, and had worked in the power was a three-inch steam pipe. The distance house, the burden was on plaintiff to show that from the steam pipe to the ceiling was four and did not negligently contribute to the injury feet and five inches. Upon the ceiling of which caused his death.

the power house was a "network" of in[Ed. Note. For other cases, see Master and sulated electrical wires, carrying a strong Servant, Cent. Dig. $ 908; Dec. Dig. $ 265.*] and dangerous current of electricity. Nearly

Report from Supreme Judicial Court, York directly over the piece of pipe to be removed County.

and attached to the ceiling was a "fuse box,” Action by Philomen Fournier against the so called, about seven inches square, and York Manufacturing Company. Case report projecting down from the ceiling about two ed. Judgment for defendant.

inches and a half. To be more descriptive, Action of tort brought under the provisions there were three fuse "blocks", each about of Pub. Laws Me. 1909, c. 258, known as the seven inches long and two and one-half inch"Employer's Liability Act," to recover dam- es wide placed side by side. These fuse ages for the death of the plaintiff's intestate blocks were of porcelain with brass or copper

Me.)

FOURNIER v. YORK MFG. CO.

83

*

a current of electricity is on the wires, a The plaintiff contends that it

*

"terminals” inserted into them to which the spot on the top of the head. Q. What did wires were attached, and between the ter- the red spot have the appearance of? A. minals was a "fuse," so constructed that, in Well, that would indicate several things, of case of a short circuit, it would quickly melt course, but it was similar to a little burn, or burn out, thus serving as a safety device. not a wound or anything of the kind, a The evidence tends to show that if some part very small place it was. * Q. As of a person should come in contact with two large as what? A. I should say about the of the terminals at the same time, or should size of a dime, as I recall it now. Q. It come in contact with one terminal while the looked red? A. Just a little red." The person was standing on an iron pipe or some foregoing is substantially all the evidence other thing connected with the ground, when relating to the cause of Fournier's death.

can be short circuit would result, and the person reasonably and logically inferred from this would receive a shock. The fuse box was not evidence that Fournier's death was caused covered in, and accordingly the terminals by an electric shock resulting from a conwere exposed.

tact of the top of his head with the fuse Mr. Dawley, the experienced pipe fitter, box. having screwed an eye-bolt into the ceiling On the other hand, the defendant insists about 12 inches from the center of the fuse that such is not a reasonable inference, con. box, directed the plaintiff's intestate to attending that, if a current of electricity suffitach a chain tackle and fall to the eye-bolt cient to produce instant death had entered for use in removing and replacing the piece Fournier's body, there would have been more of pipe. Dawley thus described what he saw external evidence of it than the very small of the accident to Fournier: “Q. How did he red spot on the top of the head, as testified start to get up? A. He passed the chain to by the undertaker, but not discovered by and fall to Evans on the pump, got up on the physician; also, that if Fournier stood the pipe himself, and Evans passed him the on the six-inch pipe, as it appeared to Dawfall. * * *

Q. What happened then, what ley he did, or if he stood with one foot on do you next know? A. The next I knew that pipe and the other on the three-inch Mr. Evans hollered.

Q. Did you steam pipe, it would have been physically look up? A. I looked. Q. Where was Four- impossible for his head to have come in connier? A. Well, he appeared to be hanging tact with the fuse box; and, still further, up in some way. Q. Hanging on the pipe? that it is unreasonable to suppose that he A. No; up overhead somewheres. Q. Seem- attempted to stand with both feet on the threeed to be hanging to the ceiling,' didn't he? inch steam pipe, which was only four feet A. Yes. Q. Did he still hold the tackle and and five inches below the ceiling. Moreover, fall? A. He did. Q. What did you do? A. the defendant urges that, under all the cirI hollered for them to shut off the power. cumstances disclosed in the case, it is not *

Q. Did they shut it off ? A. They unreasonable to conclude that Fournier's did. Q. What happened then? A. He drop- death was the result of heart disease, and in ped. Q. To the floor? A. Yes. Q. What he support of this the plaintiff relies upon the had in his hands dropped with him? A. It testimony of Dr. Thompson as tending to dropped first. Q. He never showed any signs show that death from heart disease might be of life, did he? A. No, sir; he didn't." as sudden as the death of Fournier, and that

In cross-examination Mr. Dawley was ask- he discovered nothing in his examination of ed if he did not state to a representative of the body that enabled him reasonably to dethe defendant company on the day of the termine whether his death was caused by an accident that, when he looked up, Fournier's electric shock or by heart disease. feet were on the six-inch pipe, and he an The defendant also claims that there was. swered: "That is the way it looked to me. no negligence on its part in not expressly Q. That is the way it looks to you now as warning Fournier of the fuse box and its you recall it? A. Yes.” He further stated dangerous character, because either he knew that, as he looked up, it appeared to him of it, or by the exercise of ordinary care : that Fournier was standing apparently erect, would have known of it, and, further, bewith his hands in front of him, still hold-cause it was not reasonably to be anticipated ing the chain tackle. Evans was not at the that the three workmen would undertake to trial; neither party knowing of his where- secure a tackle to the ceiling of the power abouts. Dr. Thompson, who was called to the house among the electric wires and beside power house immediately after the accident the fuse box, when the work to be done could and examined the body before it was remov- have been performed in an easier and safer ed, noted a small abrasion, "a *

place way from the floor. Again, the defendant where the skin was scraped off," above the contends that Dawley, who directed Fournieyebrows, but discovered no other marks or er to hook the tackle to the eye-bolt, was not external evidence of injuries. The undertaker, a person, "who was intrusted with and was Mr. Bradbury, testified that, in addition to exercising superintendence, and whose sole the slight abrasion of the skin which the doc- or principal duty was that of superinten:'tor noted, he discovered, in iis examination ence, or, in the absence of such superintendof the body at the morgue, “a small rec ent," was "acting as superintendent with the

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authority or consent” of the defendant, with nothing to prevent his seeing the network of in the meaning of chapter 258, Laws 1909. wires on the ceiling, and the fuse box was

We do not find it necessary, however, to directly before his eyes when he looked up determine the question of the defendant's to the eye-bolt. Whether he did in fact negligence, nor whether Dawley was a su- know of it before, or then saw it and apperintendent within the terms of the statute, preciated the danger from contact with it, since in the opinion of the court the plain- we do not know. He may have. No person tiff's case is otherwise fatally defective. who saw the accident itself has informed us

The defendant's contention that the cause how it happened that Fournier came in con-
of Fournier's death is not sufficiently proved, tact, if he did, with the fuse box. Wheth-
but is left as a matter of conjecture only, is er he was reasonably attentive and alert to
not without much weight, and yet, if that avoid such a contact, or in a moment of
were the only objection to the plaintiff's case, thoughtless inattention by some can
we might hesitate to decide that from all came against it, does not appear in evi-
the evidence an inference might not reason- dence. The burden was on the plaintiff to
ably be drawn that in some way Fournier show that her intestate was in the exercise
received an electrical shock which caused of due care, and did not negligently contribute
his death. But, assuming that inference in to the injury which caused his death. This
the plaintiff's favor, still the case is fatally in the opinion of the court she has failed
defective, for there is no evidence to show to do, and, in accordance with the stipula-
that the deceased was in the exercise of due tion of the report, the entry must be:
care. [1] The burden was on the plaintiff to

Judgment for defendant.
show affirmatively, either directly or by le-
gitimate inference, that Fournier did not by

HALEY, J., having been of counsel, did
his own fault contribute to the accident not sit.
which caused his death. This principle is
firmly settled in the decisions of this court.
See Gleason v. Bremen, 50 Me. 222; State
V. Maine Central R. R. Co., 76 Me. 357, 49

(232 Pa. 13) Am. Rep. 622; McLane v. Perkins, 92 Me.

SIEGEL V. MEGRAW. 39, 42 Atl. 255, 43 L. R. A. 487; Cunningham v. Iron Works, 92 Me. 501, 43 Atl. 106. The (Supreme Court of Pennsylvania. May 17, case is clearly distinguishable from those

1911.) where a plaintiff is injured while merely pas- APPEAL AND ERROR ($ 1010*)-REVIEW-FINDsive in the care of the defendant, without

INGS OF FACT. any active agency on his own part in the Findings of fact that arbitrators were not matter, or where a laborer, rightfully in his guilty of misconduct will not be reversed, when

based on sufficient evidence. place in the performance of his duty, is neg

[Ed. Note.-For other cases, see Appeal and ligently injured by some extraneous interfer- Error, Cent. Dig. $$ 3979-3982; Dec. Dig. $ ence not reasonably to be anticipated in the 1010.*] exercise of the care to be expected of prudent men in like situations, or where he has Appeal from Court of Common Pleas, Phil. an assurance, express or implied, that he adelphia County. will receive timely warning of any such in Action by Clarence R. Siegel against John terference, as pointed out in Maguire v. Megraw. From an order discharging a rule Fitchburg Railroad, 146 Mass. 379, 15 N. E. to set aside an award of arbitrators, defend904. In this case Fournier was not passive ant appeals. Affirmed. in the care of the defendant, but active. [2] Argued before FELL, C. J., and BROWN, It was his act that produced the contact with POTTER, ELKIN, and STEWART, JJ. the fuse box, if there was a contact, and I. Hazleton Mirkil and J. Hibbs Buckman, therefore it should affirmatively appear that for appellant. Frank P. Prichard and Robert in doing that act he was not negligent but James Earley, for appellee. in the exercise of due care.

[3] But of this there is no evidence. Dawley says that he (Fournier) "got up on the PER CURIAM. The learned judges of the pipe himself, and Evans passed him the fall." common pleas carefully considered the testiWhat he did further does not appear. It is mony in support of the rule to show cause wholly left to conjecture. There is no evi- why the report of the arbitrators should not dence tending to show that he did not know be set aside, and found that the allegaof the fuse box and of its dangerous char- tions of misconduct were not sustained. This acter. He was an intelligent person, had finding appears to be fully sustained by the worked for the defendant some time, during testimony. Nothing short of clear error which the power house was constructed, and would warrant us in disturbing it. had worked some, at least, in the power The order of the court discharging the rule house. The room was light, and there was is affirmed, at the cost of the appellant.

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Pa.)

COMMONWEALTH v. MCAFEE

85

(232 Pa. 36)

ever, we prefer to state our reasons for our COMMONWEALTH ex rel. BARRATT V. judgment. MCAFEE, Secretary of the

"The relator is a judge of the court of Commonwealth.

common pleas No. 2 of Philadelphia, in the (Supreme Court of Pennsylvania. May 17,

First judicial district of Pennsylvania. He 1911.)

was duly elected for the constitutional term 1. JUDGES (8 3*)—ELECTION—CONSTITUTIONAL of January, 1903, and ending on the first

of 10 years, commencing on the first Monday LAW.

Const. art. 5, § 15, provides that district Monday of January, 1913. judges shall be elected and hold office for the "By the constitutional amendment of Noperiod of 10 years.

Const. Amend. 1909 (P. L. 949) of article 8, 83, provides for the elec:vember 2, 1909, the election of judges can tion of judges on the Tuesday next following take place only in odd-numbered years. The the first Monday of November in odd-numbered act of April 30, 1874 (P. L. 118), provides years. A schedule to the amendment provides that the term of judges 'shall commence on that district judges holding office at the date of the approval of the amendment, whose terms the first Monday of January next succeedof office expire in 1911, shall continue to hold ing their election. The relator contends that their offices until the first Monday in January, as the year immediately preceding the termi1912. Act April 30, 1874 (P. L. 118), provides that the terms of judges thereafter elected shall nation of his term is an even-numbered year, commence on the first Monday of January suc- in which no election for the office of judge ceeding their election. Held, that an election can lawfully be held, the appropriate time cannot be held in November, 1911; to fill the for the election of his successor is in the office of a judge of the court of common pleas or orphans' court whose term expires on Janu- present year, 1911, and he accordingly filed ary 1, 1913.

a petition for the printing of his name upon [Ed. Note. For other cases, see Judges, Dec. the ballot for the June primary, 1911, with Dig. § 3.*]

the Secretary of the Commonwealth, request2. JUDGES (8 7*)-TERM OF OFFICE-EXTEN- ing him to certify his name for printing SION-CONSTITUTIONAL LAW. Acts 1911, p. 9, § 2, providing that dis- the Commonwealth has refused to so certify,

upon the primary ballot. The Secretary of trict and other judges, whose commissions expire on the first Monday of January in odd- and the relator now asks that he be directed numbered years, shall hold their offices until to comply with his request. the first Monday of January in the following

"Upon the presentation of the relator's peeven-numbered year, is unconstitutional, as an attempt to extend the term of the judges beyond tition, the respondent made answer, waiving the limit fixed by the Constitution.

issuance of the alternative writ, admitting [Ed. Note. For other cases, see Judges, Dec. all the facts alleged in the petition and Dig. $ 7.*]

claiming that his refusal to certify relator's 3. JUDGES ($ 8*) — VACANCY — APPOINTMENT name, as requested, is entirely legal. The BY GOVERNOR.

Where a judicial term ends on the first question, therefore, is one of law. Monday of January, 1913, a vacancy exists

"The Constitution and statutory provisions which must be filled by the Governor under relative to the subject are as follows: Const. art. 4, § 8.

“(1) Article 5, § 15, of the Constitution: [Ed. Note. For other cases, see Judges, Dec. All judges required to be learned in the law, Dig. $ 8.*]

except the judges of the Supreme Court, 4. OFFICERS (8 55*)—“VACANCY."

The word "vacancy," as applied to an of- shall be elected by the qualified electors of fice, has no technical meaning. An existing the respective districts over which they are office without an incumbent is vacant. There to preside, and shall hold their offices for the is no basis for the distinction that it applies period of ten years, if they shall so long only to an office vacated by death, resignation, behave themselves well.' or otherwise (citing 8 Words and Phrases, 7259).

(2) Act of April 30, 1874 (P. L. 118): [Ed. Note. For other cases, see Officers, 'That the term of office of judge of the SuCent. Dig. 88 76-84; Dec. Dig. $ 55.*]

preme Court and other judges learned in the Fell, C. J., and Brown, J., dissenting.

law hereafter elected shall commence on the

first Monday of January next succeeding Appeal from Court of Common Pleas, Dau- their election, and they shall be commisphin County.

sioned accordingly.' Application by the Commonwealth, on the

(3) Constitutional amendment of article relation of Norris S. Barratt, for writ of 8, § 3, adopted November 2, 1909 (P. L. 951): mandamus against Robert McAfee, Secretary All elections for judges of the courts of the of the Commonwealth. From an order dis- several judicial districts *

shall be missing the petition, relator appeals. Af.

held on the municipal election day, namely, firined.

the Tuesday next following the first Monday Kunkel, P. J., filed the following opinion: of November in each odd-numbered year, but

“This cause has been submitted to us with the General Assembly may by law fix a out argument, with the suggestion that we different time, two-thirds of the members shall enter a judgment pro forma, so that of each House consenting thereto; provided. the question may be speedily and authorita- that such election shall always be held in an tively settled by the Supreme Court. How-Todd-numbered year.'

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

"(4) Article 4, § 8, of the Constitution: 'He bered years. Several theories are suggeste: [the Governor) shall nominate, and, by and for the adjustment of conditions to this limiwith the advice and consent of two-thirds of tation. One is that the act of April 30, all the members of the Senate, appoint a sec- 1874, has either been entirely repealed by retary of the commonwealth and an attorney the amendment of the Constitution in 1909, general during pleasure, a superintendent of or has been so modified thereby, when the public instruction for four years, and such term ends in January of an odd-numbered other officers of the commonwealth as he is year, as to permit an election in Yovember or may be authorized by the Constitution or of the last preceding odd-numbered year. by law to appoint; he shall have power to "The act of April 30, 1874 (P. L. 118), profill all vacancies that may happen, in offices vides that the terms of all judges learned in to which he may appoint, during the recess the law 'shall commence on the first Monday of the Senate, by granting commissions of January next succeeding their election.' which shall expire at the end of their next There is no language in the amendment limitsession; he shall have power to fill any va- ing the election to odd-numbered years which cancy that may happen, during the recess of indicates any intention to either repeal or the Senate, in the office of Auditor General, modify the act of 1874, fixing the commenceState Treasurer, Secretary of Internal Af- ment of judicial terms. The relator's term fairs or Superintendent of Public Instruction, continued until the first Monday of January. in a judicial office, or in any other elective 1913. To permit the election of his succesoffice which he is or may be authorized to sor in 1911, nearly 14 months before the fill; if the vacancy shall happen during the commencement of the official term, would be session of the Senate, the Governor shall | in disregard of the provisions of this statnominate to the Senate, before their final ute, and would be without precedent in Pennadjournment, a proper person to fill said va- sylvania, so far as we are advised. To so cancy; but in any such case of vacancy, in hold would result in confusion and unceran elective office, a person shall be chosen to tainty, because if, after the election of a said office on the next election day appro- successor to the relator in 1911, the relator priate to such office according to the provi- should die or resign a vacancy would be sions of this Constitution, unless the vacancy created, which would be filled by executive shall happen within two calendar months im- appointment, and that would be followed by mediately preceding such election, in which another election. It is within the limits of case the election for said office shall be held possibility that some person other than the on the second succeeding election day ap- relator might be elected in November, 1911, propriate to such office.'

and then, in the event of the death or resig"5 Schedule to constitutional amendment nation of the relator before the end of his of November 2, 1909: “All judges for the present term, the vacancy would be filled by courts of the several judicial districts * * * executive appointment until the first Monholding office at the date of the approval day in January, 1914, followed by an elecof these amendments, whose term of office tion in 1913. Thus we would have the situmay end in the year 1911, shall continue to ation of the Governor's appointee in office hold their offices until the first Monday of until the first Monday in January, 1914, with January, 1912.'

the successful candidate at the election of [2] “(6) Act of March 2, 1911, in its sec- November, 1911, claiming the right to the ond section, provides as follows: 'All judges office on the first Monday of January, 1913. of the courts of the several judicial districts, The same undesirable situation might likeassociate judges and county officers holding wise arise as to the judicial terms expiring office at the date of the approval of said in 1915, 1917, and 1919. Surely a conclusion amendments, whose commissions expire on leading to such complicated and confusing the first Monday of January in an odd-num- results ought, if possible, to be avoided. bered year, shall continue to hold their of "Another theory is that the schedule to the fices until the first Monday of January in the amendments of 1909, providing that judges following even-numbered year.'

whose terms expire in the year 1911 'shall “This second section of the act of March continue to hold their offices until the first 2, 1911, just quoted, is an attempt to extend Monday of January, 1912,' is to be construed the constitutional terms of judges beyond as inferentially extending all judicial terms the limit fixed by the Constitution, and is expiring in January of odd-numbered years therefore of no validity for that purpose. to the first Monday of January in the next Commonwealth v. Sheatz, 228 Pa. 301, 77 succeeding even-numbered year. We have no Atl. 547.

power to read into the schedule to the [1] "The question to be determined is, Can amendments of 1909 the extension of any the successor of a judge, whose term ends judicial terms. The schedule only extends on the first Monday in January, 1913, be terms expiring in 1911. We must assume lawfully elected at the November election that the people did not intend to extend any 1911?

other terms, else they would have so specifi“The present contention arises solely from cally stated. The expression of one thing in the operation of the constitutional amend the Constitution necessarily excludes things

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