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know of and fully appreciate the danger to which he was exposed, or was not chargeable with such knowledge and appreciation. Paine V. Railway Co., 58 N. H. 611. Everybody must agree that Lintott knew he was very near to a shaft and pulleys that were revolv ing with great rapidity, and that he was liable to be injured if he came in contact with them. But such knowledge would not acquaint him with the full extent of the risk to which he was exposed. The danger was very greatly increased by his hold upon the belt encircling the shaft within a few inches of the third pulley and its projecting set screws. He was instructed "to hold the heft of the belt off the shaft," but was not told that, if he failed to do so, the belt was liable to "crawl" towards the pulley. It did not appear that he knew of this fact. It was not obvious, nor a matter of common knowledge. There was nothing in his previous experience in the defendants' shops which conclusively showed that he had seen belts "crawl" under such circumstances. Knowledge of the fact would naturally have stimulated him to exercise greater care. It was necessary to a full appreciation of the risk he was incurring. Cullen knew of the liability of a belt to crawl under such conditions. He assigned Lintott to the service, and in so doing represented the defendants. Jaques v. Manufacturing Co., 66 N. H. 482, 22 Atl. 552. The question whether he should not have instructed Lintott about this liability is a proper one for the consideration of a jury.

also two collars, each secured to the shaft | could properly be found that Lintott did not by a set screw. These screws had square heads, projecting above the surface fiveeighths to three-fourths of an inch, or a little less. While Lintott was at work upon this lathe, the man in charge of it called his attention to one of the set screws near a bearing, which, on that account, was particularly dangerous, and told him to be careful when oiling the bearing. Lintott sometimes oiled the bearings of a line of shafting suspended near the beams of the east shop, having a dozen pulleys upon it. The belts having been shipped to the fixed pulleys, he went upon planks resting upon the beams of the building and reached down through an opening between the planks, 4 or 5 inches in width, and oiled the bearings of the shafting and the hubs of the loose pulleys. There was a line of shafting near one end of the same shop, the bearings of which he oiled while standing upon a ladder placed against the end of the shop. The pulleys upon these shafts were mostly small,-14 to 15 inches in diameter, and all, or nearly all, of the fixed pulleys were secured to the shafting by set screws having projecting square heads. There was other shafting in the shops, located some 15 feet above the floors, carrying pulleys fastened in the same way. Lintott's work in connection with the trip hammer and with the lathes was not constant, but there were intervals of a day or a week, more or less, in the same, the former extending through a period of a year, perhaps, and the latter through a period of two or three months. When not at work upon these machines, he worked about the yard as a common laborer. At the close of the plaintiff's testimony a nonsuit was ordered, subject to exception.

George B. French and Jeremiah J. Doyle, for plaintiff. Charles W. Hoitt, Burnham, Brown & Warren, and John E. Riedell, for defendant.

CHASE, J. The defendants do not deny that they knew, or ought to have known, of the danger incident to the service to which Lintott was assigned. Their defense is that he also knew of and fully appreciated it, or would have known of and appreciated it if he had exercised ordinary care, and, consequently, that he assumed the risk to which he was subjected. He was not specially instructed concerning the dangerous machinery in the immediate vicinity of the place where his service was to be rendered; but the defendants say that the machinery was within the range of his vision, and its dangerous character was so obvious that a man of his age, capacity, and experience needed no instruction. The plaintiff, on the other hand, says that the danger was concealed, and Lintott was not fully aware of it, and could not have discovered it by the exercise of due care. plaintiff's exception raises the question whether there was any evidence from which it

The

There was another element of danger which it is doubtful if Lintott knew about, or could have discovered by the exercise of ordinary care, namely, the existence of the set screws with projecting heads within 6 or 8 inches, more or less, of the belt which he was holding. The facilities for seeing them were not favorable. The place was "pretty dark," and the pulley with its set screws was making about 225 revolutions a minute. Whether he ought to have inferred that they were there from the knowledge he had of the way in which other pulleys in the shops were secured to shafting, was a question about which fairminded men might differ. Some might think he had had no occasion to observe set screws in pulleys, except in the instance when he was cautioned to be careful in oiling a bearing near one, and that the fact that he was then cautioned would lead him to understand that he would be specially cautioned whenever he was exposed to a similar danger; while others might think that a man of his age and capacity, having such opportunities for observation, must have learned of the method so generally adopted by the defendants for securing pulleys to shafting. Cullen's direction "to be sure and hold the belt on the plain piece of shaft" did not necessarily imply that any danger would arise from a failure to comply with it, other than such as was obvious from the proximity of the revolving pulleys. It

did not necessarily call attention to the presence of the set screws, and the danger incident to them. Lintott may have understood that the direction was given for Cullen's convenience, rather than his own safety; that such a position of the belt was required to enable Cullen to lace it properly and quickly. Moreover, the belt that was liable to crawl and the projecting set screws existed in conjunction within a few inches of each other. Each aggravated the danger ordinarily incident to the other. The evidence bearing upon Lintott's knowledge of his surroundings and appreciation of his danger is not so definite and controlling that a jury might not properly find that they were not sufficient, under the rules of law, to charge him with the risk of injury. The evidence also tended to show that the injury resulted in whole or in part from these dangerous instruments. The belt was suddenly drawn from Cullen's hands, and Lintott was snatched from the platform, and carried around the shaft. After the accident it was found that the belt was coiled about the hub of the pulley and the shaft inside, over and outside the set screws, and a piece torn from Lintott's clothing was confined in the coils. Apparently the belt began to wind around the shaft and hub before Lintott's clothing was caught in it and he was snatched from the platform. The crawling of the belt 7 or 8 inches to one side and its entanglement with the heads of the set screws would account for its being suddenly drawn from Cullen's hands and wound around the hub and shaft. Lintott's hold of the belt and proximity to the shaft and pulley would account for his being caught by the coils of the belt and drawn upon the shaft. There being evidence that was not conclusive as to these questions, they should have been submitted to the jury. Demars v. Manufacturing Co., 67 N. H. 404, 406. 40 Atl. 902. Exception sustained; nonsuit set aside.

ed on delivery to the plaintiff, but that the plaintiff, in violation of his agreement, took and drove away the cattle without the defendant's consent, and had them weighed without notice to the defendant. Trial before a referee, who assessed the damages at $16.02 in case the defendant was liable. The court ordered judgment for the plaintiff on the report.

Perrin T. Kellogg, for plaintiff. Crawford D. Hening and Henry Heywood, for defendant.

SMITH, J. The defendant purchased of the plaintiff a wagon and harness, the price of the former to be $100, and that of the latter $15. The plaintiff agreed to take in payment the defendant's steers at 4 cents per pound, live weight. If the steers, when weighed, should not come to the price of the carriage and harness, the defendant agreed to pay the balance in cash. The steers were to remain in the defendant's pasture, at no expense to the plaintiff, until he should send for them, when the defendant was to drive them to Whitefield, and deliver them to the plaintiff, to be weighed in the defendant's presence. The plaintiff, without notifying the defendant, caused the steers to be driven to Whitefield. At this time they were not weighed. They were sold by the plaintiff some time afterwards, and then weighed 2,500 pounds. At this time the plaintiff was not present, and was not notified. The carriage and harness were delivered to the defendant, and became his property, at the time of the contract. That the steers became the property of the plaintiff at the same time, or when he took them into possession, is not questioned. The defendant seeks to have their value applied in this suit in payment for the carriage and harness, and his claim is that their weight at the time they were taken from his pasture was sufficient, at four cents per pound, live weight, to satisfy the price of the carriage and harness. The fact that the steers were driven to Whitefield by the plaintiff is immaterial. He thereby waived his right to insist on the performance of that stipulation in the contract by the defendant, who was thereby relieved of that burden. It is not found that they were improperly driven, and an inspection of the stenographer's minutes, submitted by the defendant, shows that no evidence was introduced at the trial as to the manner in which they were driven. The stipulation that the steers should be weighed in the defendant's presence was made in order that he might see it was fairly done. As the plaintiff, by taking them into his possession in the absence of the defendant, thereby deprived him of that opportunity, the burden was on the plaintiff to show their weight at the time he took possession of them. That question seems to have been fully tried, Assumpsit for the price of a harness. and the referee has found that the weight of Pleas: (1) The general issue; (2) payment; the steers did not exceed 2,500 pounds. His (3) that the harness was exchanged for cat- finding is conclusive. There is no question tle, which the parties agreed should be weigh-pending here that the finding was not justified

PEASLEE, J., did not sit. The others con

curred.

PARCHER v. HOLMES.
(Supreme Court of New Hampshire. Coos.
July 27, 1894.)
SALE-PURCHASER TAKING PROPERTY WITH-
OUT SELLER'S KNOWLEDGE-BURDEN
OF PROVING VALUE.

Where a purchaser of cattle by weight, to be weighed in the seller's presence, took possession of them without the seller's knowledge, the only effect of such action was to cast upon him the burden of proving their true weight.

Exceptions from Coos county.

Action by Charles J. Parcher against Guy C. Holmes. Judgment for plaintiff, and defendant brings exceptions. Overruled.

by the evidence, but, inasmuch as it has been questioned in argument, an examination has been made of the report of the evidence furnished by the defendant, and the finding of the referee is found to be supported by the evidence. Whether the defendant, by his neglect to seasonably request that the steers be weighed in his presence at Whitefield, did not waive his right to have it done, is a question that does not appear to have been raised at the trial. The defendant having been in no way damnified by the fact that the cattle were driven to Whitefield, and weighed when he was not present, the plaintiff is entitled to judgment on the report. Exceptions overruled.

CHASE, J., did not sit. The others concurred.

HOPKINS v. RAYS et al. (Supreme Court of New Hampshire. Coos. July 27, 1894.)

LOGGING-LIEN FOR HAULING LOGS—EXTENT AND ENFORCEMENT.

1. In an action to enforce a lien upon logs, a description, in the precept, of the logs to be attached as all the logs drawn by defendants, and lying by a certain railroad, in certain named towns, is sufficiently definite to include logs lying three or four rods from the railroad track on the mill pond of a purchaser from defendants, although they were drawn the last part of the distance, to where they were seized, by the purchaser, when they are identified as logs that were hauled from defendants' land, where cut, and delivered to the purchaser by defendants.

2. The lien given by Pub. St. c. 141, § 12, to one hauling logs for another, where the work is done in furtherance of a general lumbering operation, and logs from the same lot are hauled by different persons, is not confined to the particular logs drawn by the lien claimant, but may be enforced against any logs coming from such lot which can be identified.

Exceptions from Coos county.

Action by Margaret C. Hopkins against Rays, McPherson & Co. and others. Judgment for plaintiff, and defendants bring exceptions. Overruled.

Assumpsit to enforce a lien for labor and supplies to the amount of $570.46, furnished by the plaintiff to the defendants in cutting and hauling logs. Facts found by a referee. The defendants were engaged in cutting and hauling logs from their lot in Kilkenny. The plaintiff furnished them with supplies to the amount of $390.46, which went into the general enterprise, and drew logs as directed, for which there was due the sum of $180. The logs taken from the lot were drawn to different places. Those attached by the plaintiff were not drawn by her teams, but came from the same lot as those for the drawing of which a lien was claimed. The claimant contended that the plaintiff was not entitled to judgment in rem, (1) because the logs to be attached were not described with sufficient definiteness in the precept to the officer, and (2) because the plaintiff had no lien on the logs at

tached for the item cf $180, those logs not having been drawn by her. The court ordered judgment on the report for the plaintiff in rem, and the defendants excepted.

Ladd & Fletcher, W. & H. Heywood, and Shurtleff & Sullivan, for plaintiff. Drew, Jordan & Buckley, for other creditors. Alland G. Fay, for claimant.

SMITH, J. The precept in the writ commanded the officer to attach all the logs drawn by Rays, McPherson & Co., and lying by the Kilkenny Railroad in Lancaster, Kilkenny, or Northumberland. The officer's return shows an attachment of all hard-wood logs lying upon the pond in and about the mill yard of Whipple's (the claimant's) mill in Lancaster. The logs attached were lying on the mill pond, three or four rods from the railroad. At the time of the attachment they had been purchased by Whipple of the defendants, subject to whatever lien the plaintiff had. The description of the property was sufficiently definite to enable the officer to find and take possession of it. The property was logs. The particular logs were those drawn by the defendants, and were distinguishable from other logs there by certain marks upon them. The place or places where the logs might be found were the towns of Lancaster, Kilkenny, and Northumberland, and the particular locality in the towns was the Kilkenny Railroad, or, in the language of the precept, "lying by the Kilkenny Railroad." The logs were found on the ice in Whipple's mill pond, on the line of the railroad, and three or four rods from it. Logs lying no further than that from the track of a railroad may well be said to be "lying by the railroad." They were doubtless lying as near the railroad as bulky articles of that nature could be safely or conveniently placed. No question as to their identity is raised. The fact that they had been drawn by the claimant some two miles from the place where the defendants delivered them to him is of no importance, except so far as it might affect the ability of the officer to identify them. They were logs drawn by the defendants from the lot where the lumbering operations were carried on, although drawn the last two miles of their journey by Whipple. In Hill v. Callahan, 58 N. H. 497, the precept to the officer "to attach about seven hundred thousand feet of spruce logs and about twenty thousand feet of pine logs now landed on the land of John Head, in Shelburne, in said county of Coos, near and upon the bank of the Androscoggin river, and upon said river," was held sufficient, and "quite as definite as the nature of the case would seem to permit." The description of the logs in this case was not less definite. It is insisted that the description should be so definite that the officer, without other direction, may identify the property. This cannot be literally correct. If the officer is a stranger, he may inquire where the locality named in the precept is; or, if the

property is described as in the possession of A., he may inquire who A. is; or, if in a building or on land of A., which building or what land is A.'s; or, if the property is described as logs drawn by B., in the possession of A., and A. has also logs drawn by C., he may inquire what logs were drawn by B. One construction of the language of the precept may be that the logs were drawn by the defendants to and left by the side of the railroad for shipment. But that is not the only construction. The language is broad enough to include logs drawn by the defendants, although not the whole distance from the lot, the destination of which was the Whipple sawmill, or other mills elsewhere on the line of the railroad. The description is sufficient if the officer can find the property by the exercise of reasonable diligence. The plaintiff has a lien on the logs attached for the item of $180. There would be great difficulty in coming to any other conclusion. Suppose

10 men hauled logs for the same defendants, and from the same lot, under separate contracts. It would be unreasonable to hold that each, when engaged in a common enterprise, must preserve the identity of the logs drawn by his own team. If it is not impossible to regulate their rights in any other way than by holding that each has a lien on all the logs drawn, a different rule would be so vexatious, expensive, and uncertain that it is safe to conclude that the legislature never intended such a result. The logs attached were distinguishable by marks from other logs. The labor of the plaintiff's team was in furtherance of a general lumbering operation of cutting and hauling logs from the defendants' land.

If

a person's lien were limited to the particular logs drawn by his own team, the purpose of the statute would be defeated in many instances by the impracticability and impossibility of following the logs into the possession of those to whom the owner might sell them, or from their becoming intermingled with logs drawn by others. The statute is to be reasonably construed to effectuate the intention of the legislature. Bean v. Brown, 54 N. H. 395, 397.

This construction is consistent with the general purpose of the statute, which gives a lien, not only to those who cut the timber or haul the logs, but to him who furnishes supplies for the men and teams engaged in cutting and hauling, to the person who hauls the supplies, and to the cook in the camp. Pub. St. c. 141, § 12. Exceptions overruled.

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his taking, under the statute, his share in property as to which testator died intestate.

Action by George W. Wells against William H. Anderson and others. Case discharged.

Petition for partition of the "Jack Lot," so called. Facts agreed. Josiah I. Hall, late of Chester, died testate, owning a homestead, worth about $2,300; the Jack lot, worth about $1,200; and a small quantity of personal property. His heirs were a son, John G., a daughter, Margaret A., and the plaintiff, the son of a deceased daughter. By his will he devised the homestead to John G. and his children, but made no specific devise of the Jack lot, and no reference whatever to either of his daughters or the plaintiff. By a codicil he gave the plaintiff "one dollar, and no more." Neither the will nor the codicil contains any residuary clause. The defendant Anderson claims title to the Jack lot under a quitclaim deed from John G. and Margaret A., and the plaintiff claims title to one undivided third part of it by descent from Josiah I.

David Cross, for plaintiff. & Warren, for defendants.

Burnham, Brown,

CHASE, J. The defendants' claim of title to the whole lot is based upon the inference, drawn from the form of the bequest to the plaintiff, that the testator intended the plaintiff should have only one dollar from the entire estate. It is certain that the testator did not intend to give the plaintiff more than one dollar by will, but it does not appear that he intended the plaintiff should not share with the other heirs in the undevised portion of his estate. A bequest of "one dollar, and no more," is consistent with an intention to give that sum only by will, and to allow the legatee to take whatever other portion of the estate the law would give him. To prevent the plaintiff from having more than one dollar, it was necessary for the testator to make disposition of his entire estate. He could not intrust the disposition of a portion of it to the provisions of the statutes, for they would give each of the two surviving children one-third of such portion, and the plaintiff the other third. If the testator understood that his use of the words "and no more" would prevent the plaintiff from taking a third of the undevised portion, he must have understood also that this third would be left undisposed of either by the will or the statute. He certainly could not have understood that those words would devise it to the two surviving children. They are words of limitation, and not of de vise. See Denn v. Gaskin, Cowp. 657; Haxtun v. Corse, 2 Barb. Ch. 521; Gallagher v. Crooks, 132 N. Y. 338, 30 N. E. 746; Nickerson v. Bowly, 8 Metc. (Mass.) 424, 431, 432. Considering that the testator's language was used in the act of making a will, and giving the words their ordinary effect, it appears that he intended to bequeath only one dollar to the plaintiff, and to leave the Jack lot and other portions of his estate to be distributed among

his heirs by operation of law. In this way the plaintiff acquired title to one-third part of the Jack lot. Pub. St. c. 196, § 1. Case discharged. All concurred.

FOURNIER v. COLUMBIAN MFG. CO. (Supreme Court of New Hampshire. Hillsboro. March 17, 1899.)

MASTER AND SERVANT-NEGLIGENCE OF FELLOW SERVANT.

An employé injured by the negligence of a fellow servant, when the latter was a competent and ordinarily careful employé, cannot recover from the master.

Exceptions from Hillsboro county.

Action to recover for personal injuries, brought by Eva Fournier against Columbian Manufacturing Company. From a verdict in favor of plaintiff, defendant brings exceptions. Exceptions sustained.

Case, by the plaintiff, whose right hand was injured by the gears of a spinning frame in the defendant's cotton mill. The plaintiff was a doffer in the defendant's employ. It was her duty to clean or wipe the gears on the spinning frames at the cleaning hour, which was from 3:30 to 4:30 o'clock on every Saturday afternoon. For this purpose the frames were stopped by throwing the belt from a fixed to a movable pulley. It was the spinner's duty at this hour to tie together the ends of threads broken during the process of cleaning; also to start the frames, in order to get the work in running order, first giving notice of her purpose to the doffer. While the plaintiff was cleaning the gears from which she received her injury, the spinner who ran the frame connected with the gears, and who was a competent and ordinarily careful employé, without notice to the plaintiff, started it up, causing her injuries to be inflicted. The grounds upon which the plaintiff claimed negligence in the defendant were: (1) Permitting the cleaning with the speed on, without removing the belt or securing the shipper; (2) not providing brushes for cleaning the gears; and (3) the character of the instructions given to the plaintiff. At the conclusion of the testimony the defendant's motion that the court direct a verdict for it was denied, and it excepted.

Joseph W. Fellows, David A. Taggart, and William G. Buteau, for plaintiff. Burnham, Brown & Warren and John H. Riedell, for defendant.

PIKE, J. The cause of the plaintiff's injury was the negligence of a fellow servant, who was competent and ordinarily careful, in starting the frame, without notice, while the plaintiff was cleaning the gears. If the injury had resulted from the running of the belt from the movable to the fixed pulley, and thus starting up the frame, or from the plaintiff having been required to clean the gears while

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1. An instruction, in an action against a street railway for personal injuries, to find for plaintiff if the accident was caused by a faulty construction of the car, whereby his coat was caught, and he was thrown, is properly refused where the writ did not allege that the injury was caused by a defect in the car, and there was no evidence of a defect, and no claim till the closing argument, that there was one, but evidence merely that in attempting to alight after the car had started plaintiff had his coat caught under the outside door of the vestibule.

2. An instruction that if plaintiff got off of a moving car, knowing or having reason to know that it was in motion, he took the chance of any injury that might result therefrom, being proper under certain evidence, exception thereto cannot be sustained, the evidence or the ground of exception not being stated.

Exceptions from Hillsboro county.

Action by Charles Douyette against the Nashua Street Railway. Verdict for defendant. Plaintiff excepts. Exceptions overruled.

Case, for personal injuries caused by the defendant's negligence in managing and driving a car. The plaintiff was a passenger upon one of the defendant's cars, and in attempting to alight after the car had started was caught by the coat, and dragged some distance. There was evidence tending to show that his coat was caught beneath the outside door of the vestibule. There was no evidence that the car was defective. It was viewed by the jury. In the closing argument for the plaintiff a claim was made, for the first time, that the defendant was liable because of a defect in the car. The plaintiff excepted to a refusal to give the following instruction to the jury: "If you find that the accident was caused by a faulty construction of the car, whereby the plaintiff's coat was caught, and he was thrown, and that he was free from fault, he is entitled to a verdict." The plaintiff also excepted to the following instruction given to the jury: "If he [the plaintiff] got off of a moving car, knowing or having reason to know that it was in motion, he took the chance of any injury that might result from such action, and cannot recover therefor."

Henry B. Atherton, for plaintiff. George B. French and Jeremiah J. Doyle, for defend

ant.

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