E. 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. The mo555, 560; Grant v. Bodwell, 78 Me. 462, 7 tion was overruled. The case was then withAtl. 12; Stilphen, Appellant, ubi supra. drawn from the jury and reported to the law court, with the stipulation that "if the motion for the direction of a verdict for the defendant should have been granted, or if the decision shall otherwise be for the defendant, judgment shall be entered for the defendant. If the decision be for the plaintiff, 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 that the appellant prosecutes the appeal as The deceased intestate, Benjamin Sprowl, upon the decision of the law court above referred to, would, if living, have had the right to enter his appeal and prosecute it to conclusion. His administrator, as one claiming under him, has the same right as his intestate to do so. his administrator. Exceptions overruled. (108 Me. 357) FOURNIER v. YORK MFG. CO. (Supreme Judicial Court of Maine. Oct. 2, 1911.) 1. MASTER AND SERVANT (§ 265*)-INJURY TO SERVANT CONTRIBUTORY NEGLIGENCE BURDEN OF PROOF. The burden is on plaintiff to show affirmatively that decedent did not, by his own fault, either directly or by legitimate inference contribute to the accident which caused his death. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 908; Dec. Dig. § 265.*] 2. MASTER AND SERVANT (§ 265*)—INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE. Where the death of an employé was caused by his own act in producing a contact with a fuse box in a power house, it must affirmatively appear that in doing the act he was not negligent, but in the exercise of due care. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 908; Dec. Dig. § 265.*] 3. MASTER AND SERVANT (§ 265*)-INJURY TO SERVANT CONTRIBUTORY NEGLIGENCE EVIDENCE. Geo. F. & Leroy Haley, for plaintiff. Cleaves, Waterhouse & Emery, for defend ant. KING, J. Action of tort by the administratrix of the estate and widow of Charles Fournier, under the provisions of chapter 258, Laws 1909, to recover damages for the death of the plaintiff's intestate while he was employed in the defendant's power house, alleged to have been caused by the defendant's negligence in not warning him of a danger incident to the place where he was directed to work. The case is before this court on report. The plaintiff's intestate and two other workmen were directed by the defendant's "boss piper" to remove a short section of a six-inch iron pipe connecting two pumps in the power house, and replace it with another piece of pipe to which was to be attached an air chamber. One of the three workmen, Charles Dawley, was an experienced pipe fitter, and the other two, Fournier and Evans, were common laborers or helpers. The sixinch pipe was parallel with the floor of the power house, and its top eight feet and ten inches above the floor. The distance from the top of this pipe to the ceiling was seven feet and one inch. Sixteen inches behind Where an employé in a power house was injured apparently by coming in contact with a fuse box, and there was no evidence whether he was reasonably attentive and alert to avoid such contact, and he had worked for defendant and about thirty-two inches above the sixsome time, during which the power house was constructed, and had worked in the power house, the burden was on plaintiff to show that the intestate was in the exercise of due care, and did not negligently contribute to the injury which caused his death. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 908; Dec. Dig. § 265.*] Report from Supreme Judicial Court, York County. Action by Philomen Fournier against the York Manufacturing Company. Case reported. Judgment for defendant. Action of tort brought under the provisions of Pub. Laws Me. 1909, c. 258, known as the "Employer's Liability Act," to recover damages for the death of the plaintiff's intestate inch pipe, and apparently parallel with it, was a three-inch steam pipe. The distance from the steam pipe to the ceiling was four feet and five inches. Upon the ceiling of the power house was a "network" of insulated electrical wires, carrying a strong and dangerous current of electricity. Nearly directly over the piece of pipe to be removed and attached to the ceiling was a "fuse box," so called, about seven inches square, and projecting down from the ceiling about two inches and a half. To be more descriptive, there were three fuse "blocks", each about seven inches long and two and one-half inches wide placed side by side. These fuse blocks were of porcelain with brass or copper Me.) FOURNIER v. YORK MFG. CO. "terminals" inserted into them to which the wires were attached, and between the terminals was a "fuse," so constructed that, in case of a short circuit, it would quickly melt or burn out, thus serving as a safety device. The evidence tends to show that if some part of a person should come in contact with two of the terminals at the same time, or should come in contact with one terminal while the person was standing on an iron pipe or some other thing connected with the ground, when a current of electricity is on the wires, a short circuit would result, and the person would receive a shock. The fuse box was not covered in, and accordingly the terminals were exposed. 83 spot on the top of the head. Q. What did The plaintiff contends that it can be reasonably and logically inferred from this evidence that Fournier's death was caused by an electric shock resulting from a contact of the top of his head with the fuse box. Mr. Dawley, the experienced pipe fitter, 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, conbox, directed the plaintiff's intestate to at- tending 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? 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 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 had in his hands dropped with him? A. It dropped first. Q. He never showed any signs of life, did he? A. No, sir; he didn't." * In cross-examination Mr. Dawley was asked if he did not state to a representative of the defendant company on the day of the accident that, when he looked up, Fournier's feet were on the six-inch pipe, and he answered: "That is the way it looked to me. Q. That is the way it looks to you now as you recall it? A. Yes." He further stated that, as he looked up, it appeared to him that Fournier was standing apparently erect, with his hands in front of him, still holding the chain tackle. Evans was not at the trial; neither party knowing of his whereabouts. Dr. Thompson, who was called to the power house immediately after the accident and examined the body before it was removed, noted a small abrasion, "a ** * * place where the skin was scraped off," above the eyebrows, but discovered no other marks or external evidence of injuries. The undertaker, Mr. Bradbury, testified that, in addition to the slight abrasion of the skin which the doctor noted, he discovered, in his examination of the body at the morgue, "a small re support of this the plaintiff relies upon the testimony of Dr. Thompson as tending to show that death from heart disease might be as sudden as the death of Fournier, and that he discovered nothing in his examination of the body that enabled him reasonably to determine whether his death was caused by an electric shock or by heart disease. The defendant also claims that there was no negligence on its part in not expressly warning Fournier of the fuse box and its dangerous character, because either he knew of it, or by the exercise of ordinary care would have known of it, and, further, because it was not reasonably to be anticipated that the three workmen would undertake to secure a tackle to the ceiling of the power house among the electric wires and beside the fuse box, when the work to be done could have been performed in an easier and safer way from the floor. Again, the defendant contends that Dawley, who directed Fournier to hook the tackle to the eye-bolt, was not a person, "who was intrusted with and was exercising superintendence, and whose sole or principal duty was that of superintendence, or, in the absence of such superintendent," was "acting as superintendent with the 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 determine the question of the defendant's negligence, nor whether Dawley was a superintendent within the terms of the statute, since in the opinion of the court the plaintiff's case is otherwise fatally defective. directly before his eyes when he looked up to the eye-bolt. Whether he did in fact know of it before, or then saw it and appreciated the danger from contact with it, we do not know. He may have. No person who saw the accident itself has informed us how it happened that Fournier came in contact, if he did, with the fuse box. Whether he was reasonably attentive and alert to avoid such a contact, or in a moment of thoughtless inattention by some careless move came against it, does not appear in evidence. The burden was on the plaintiff to show that her intestate was in the exercise of due care, and did not negligently contribute to the injury which caused his death. This in the opinion of the court she has failed to do, and, in accordance with the stipulation of the report, the entry must be: Judgment for defendant. HALEY, J., having been of counsel, did not sit. SIEGEL v. MEGRAW. (232 Pa. 13) The defendant's contention that the cause of Fournier's death is not sufficiently proved, but is left as a matter of conjecture only, is not without much weight, and yet, if that were the only objection to the plaintiff's case, we might hesitate to decide that from all the evidence an inference might not reasonably be drawn that in some way Fournier received an electrical shock which caused his death. But, assuming that inference in the plaintiff's favor, still the case is fatally defective, for there is no evidence to show that the deceased was in the exercise of due care. [1] The burden was on the plaintiff to show affirmatively, either directly or by legitimate inference, that Fournier did not by his own fault contribute to the accident 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 Am. Rep. 622; McLane v. Perkins, 92 Me. 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 where a plaintiff is injured while merely passive in the care of the defendant, without any active agency on his own part in the matter, or where a laborer, rightfully in his place in the performance of his duty, is negligently injured by some extraneous interference not reasonably to be anticipated in the exercise of the care to be expected of prudent men in like situations, or where he has an assurance, express or implied, that he will receive timely warning of any such interference, as pointed out in Maguire v. Fitchburg Railroad, 146 Mass. 379, 15 N. E. 904. In this case Fournier was not passive in the care of the defendant, but active. [2] It was his act that produced the contact with the fuse box, if there was a contact, and therefore it should affirmatively appear that in doing that act he was not negligent but in the exercise of due care. 1911.) APPEAL and Error (§ 1010*)-REVIEW-FIND- Findings of fact that arbitrators were not guilty of misconduct will not be reversed, when based on sufficient evidence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3979-3982; Dec. Dig. § 1010.*] Appeal from Court of Common Pleas, Philadelphia County. Action by Clarence R. Siegel against John Megraw. From an order discharging a rule to set aside an award of arbitrators, defendant appeals. Affirmed. Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and STEWART, JJ. I. Hazleton Mirkil and J. Hibbs Buckman, for appellant. Frank P. Prichard and Robert James Earley, for appellee. PER CURIAM. The learned judges of the common pleas carefully considered the testimony in support of the rule to show cause why the report of the arbitrators should not be set aside, and found that the allegations of misconduct were not sustained. This finding appears to be fully sustained by the testimony. Nothing short of clear error would warrant us in disturbing it. [3] But of this there is no evidence. Dawley says that he (Fournier) "got up on the pipe himself, and Evans passed him the fall." What he did further does not appear. It is wholly left to conjecture. There is no evidence tending to show that he did not know of the fuse box and of its dangerous character. He was an intelligent person, had worked for the defendant some time, during which the power house was constructed, and 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. Pa.) COMMONWEALTH v. MCAFEE (232 Pa. 36) MCAFEE, Secretary of the (Supreme Court of Pennsylvania. May 17, 85 ever, we prefer to state our reasons for our judgment. "The relator is a judge of the court of common pleas No. 2 of Philadelphia, in the First judicial district of Pennsylvania. He was duly elected for the constitutional term of 10 years, commencing on the first Monday 1._JUDGES (§ 3*)-ELECTION-CONSTITUTIONAL of January, 1903, and ending on the first LAW. 1911.) Const. art. 5, § 15, provides that district judges shall be elected and hold office for the period of 10 years. Const. Amend. 1909 (P. L. 949) of article 8, § 3, provides for the elec tion of judges on the Tuesday next following the first Monday of November in odd-numbered years. A schedule to the amendment provides that district judges holding office at the date of the approval of the amendment, whose terms of office expire in 1911, shall continue to hold their offices until the first Monday in January, 1912. Act April 30, 1874 (P. L. 118), provides that the terms of judges thereafter elected shall commence on the first Monday of January succeeding their election. Held, that an election cannot be held in November, 1911; to fill the office of a judge of the court of common pleas or orphans' court whose term expires on January 1, 1913. [Ed. Note.-For other cases, see Judges, Dec. Dig. § 3.*] 2. JUDGES (§ 7*)-TERM OF OFFICE-EXTENSION-CONSTITUTIONAL LAW. Acts 1911, p. 9, § 2, providing that district and other judges, whose commissions expire on the first Monday of January in oddnumbered years, shall hold their offices until the first Monday of January in the following even-numbered year, is unconstitutional, as an attempt to extend the term of the judges beyond the limit fixed by the Constitution. Monday of January, 1913. "By the constitutional amendment of November 2, 1909, the election of judges can take place only in odd-numbered years. The act of April 30, 1874 (P. L. 118), provides that the term of judges 'shall commence on the first Monday of January next succeeding their election.' The relator contends that as the year immediately preceding the termination of his term is an even-numbered year, in which no election for the office of judge can lawfully be held, the appropriate time for the election of his successor is in the present year, 1911, and he accordingly filed a petition for the printing of his name upon the ballot for the June primary, 1911, with the Secretary of the Commonwealth, requesting him to certify his name for printing upon the primary ballot. the Commonwealth has refused to so certify, The Secretary of and the relator now asks that he be directed to comply with his request. "Upon the presentation of the relator's petition, the respondent made answer, waiving issuance of the alternative writ, admitting [Ed. Note.-For other cases, see Judges, Dec. all the facts alleged in the petition and Dig. $ 7.*] 3. JUDGES (§ 8*)- VACANCY-APPOINTMENT BY GOVERnor. Where a judicial term ends on the first Monday of January, 1913, a vacancy exists which must be filled by the Governor under Const. art. 4, § 8. [Ed. Note.-For other cases, see Judges, Dec. Dig. § 8.*] 4. OFFICERS (8 55*)-"VACANCY." The word "vacancy," as applied to an office, has no technical meaning. An existing office without an incumbent is vacant. There is no basis for the distinction that it applies only to an office vacated by death, resignation, or otherwise (citing 8 Words and Phrases, 7259). [Ed. Note.-For other cases, see Officers, Cent. Dig. §§ 76-84; Dec. Dig. § 55.*] Fell, C. J., and Brown, J., dissenting. The claiming that his refusal to certify relator's name, as requested, is entirely legal. question, therefore, is one of law. "The Constitution and statutory provisions relative to the subject are as follows: "(1) Article 5, § 15, of the Constitution: 'All judges required to be learned in the law, except the judges of the Supreme Court, shall be elected by the qualified electors of the respective districts over which they are to preside, and shall hold their offices for the period of ten years, if they shall so long behave themselves well.' "(2) Act of April 30, 1874 (P. L. 118): "That the term of office of judge of the Supreme Court and other judges learned in the 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. Application by the Commonwealth, on the relation of Norris S. Barratt, for writ of mandamus against Robert McAfee, Secretary of the Commonwealth. From an order disFrom an order dismissing the petition, relator appeals. Affirmed. sioned accordingly.' "(3) Constitutional amendment of article 8, § 3, adopted November 2, 1909 (P. L. 951): All elections for judges of the courts of the several judicial districts * shall be held on the municipal election day, namely, the Tuesday next following the first Monday of November in each odd-numbered year, but the General Assembly may by law fix a different time, two-thirds of all the members of each House consenting thereto; provided. that such election shall always be held in an How-odd-numbered year.' Kunkel, P. J., filed the following opinion: "This cause has been submitted to us without argument, with the suggestion that we shall enter a judgment pro forma, so that the question may be speedily and authoritatively settled by the Supreme Court. *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 [the Governor] shall nominate, and, by and with the advice and consent of two-thirds of all the members of the Senate, appoint a secretary of the commonwealth and an attorney general during pleasure, a superintendent of public instruction for four years, and such other officers of the commonwealth as he is or may be authorized by the Constitution or by law to appoint; he shall have power to fill all vacancies that may happen, in offices to which he may appoint, during the recess of the Senate, by granting commissions which shall expire at the end of their next session; he shall have power to fill any vacancy that may happen, during the recess of the Senate, in the office of Auditor General, State Treasurer, Secretary of Internal Affairs or Superintendent of Public Instruction, in a judicial office, or in any other elective office which he is or may be authorized to fill; if the vacancy shall happen during the session of the Senate, the Governor shall nominate to the Senate, before their final adjournment, a proper person to fill said vacancy; but in any such case of vacancy, in an elective office, a person shall be chosen to said office on the next election day appropriate to such office according to the provisions of this Constitution, unless the vacancy shall happen within two calendar months immediately preceding such election, in which case the election for said office shall be held on the second succeeding election day appropriate to such office.' "(5) Schedule to constitutional amendment of November 2, 1909: All judges for the courts of the several judicial districts *** holding office at the date of the approval of these amendments, whose term of office may end in the year 1911, shall continue to hold their offices until the first Monday of January, 1912.' [2] "(6) Act of March 2, 1911, in its second section, provides as follows: 'All judges of the courts of the several judicial districts, associate judges and county officers holding office at the date of the approval of said amendments, whose commissions expire on the first Monday of January in an odd-numbered year, shall continue to hold their offices until the first Monday of January in the following even-numbered year.' "This second section of the act of March 2, 1911, just quoted, is an attempt to extend the constitutional terms of judges beyond the limit fixed by the Constitution, and is therefore of no validity for that purpose. Commonwealth v. Sheatz, 228 Pa. 301, 77 Atl. 547. bered years. Several theories are suggested for the adjustment of conditions to this limitation. One is that the act of April 30, 1874, has either been entirely repealed by the amendment of the Constitution in 1909, or has been so modified thereby, when the term ends in January of an odd-numbered year, as to permit an election in November of the last preceding odd-numbered year. "The act of April 30, 1874 (P. L. 118), provides that the terms of all judges learned in the law 'shall commence on the first Monday of January next succeeding their election.' There is no language in the amendment limiting the election to odd-numbered years which indicates any intention to either repeal or modify the act of 1874, fixing the commencement of judicial terms. The relator's term continued until the first Monday of January, 1913. To permit the election of his successor in 1911, nearly 14 months before the commencement of the official term, would be in disregard of the provisions of this statute, and would be without precedent in Pennsylvania, so far as we are advised. To so hold would result in confusion and uncertainty, because if, after the election of a successor to the relator in 1911, the relator should die or resign a vacancy would be created, which would be filled by executive appointment, and that would be followed by another election. It is within the limits of possibility that some person other than the relator might be elected in November, 1911. and then, in the event of the death or resignation of the relator before the end of his present term, the vacancy would be filled by executive appointment until the first Monday in January, 1914, followed by an election in 1913. Thus we would have the situation of the Governor's appointee in office until the first Monday in January, 1914, with the successful candidate at the election of November, 1911, claiming the right to the office on the first Monday of January, 1913. The same undesirable situation might likewise arise as to the judicial terms expiring in 1915, 1917, and 1919. Surely a conclusion. leading to such complicated and confusing results ought, if possible, to be avoided. "Another theory is that the schedule to the amendments of 1909, providing that judges whose terms expire in the year 1911 'shall continue to hold their offices until the first Monday of January, 1912,' is to be construed as inferentially extending all judicial terms expiring in January of odd-numbered years to the first Monday of January in the next succeeding even-numbered year. We have no power to read into the schedule to the amendments of 1909 the extension of any judicial terms. The schedule only extends terms expiring in 1911. We must assume that the people did not intend to extend any 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 [1] "The question to be determined is, Can the successor of a judge, whose term ends on the first Monday in January, 1913, be lawfully elected at the November election 1911? |