claimed was so covered with lime dust as to SECURITY CEMENT & LIME CO. v. BOW- appear solid, evidence as to an experiment made

3. MASTER AND SERVANT (§ 103*)-LIABILITY both of Hagerstown, for appellant. Wm. J. Witzenbacher and J. A. Mason,

A master's duty to provide and maintain | G. Wagaman, of Hagerstown (Wagaman & safe machinery and appliances and a reason- Wagaman, of Hagerstown, on the brief), for ably safe place for the work undertaken by the servant cannot be delegated.

elevator with a chain and a sprocket wheel on the east side, and we had to cross over it; we had to pass over the old conveyor down to the west side, and then come back and cross over to the east side."

He said both conveyors were there, but the new one was not fastened; that the new one was about four inches from the old con

veyor.

There can be no question that there was abundant evidence on the part of the plaintiff tending to show that there was an opening in the top of the conveyor, which was covered with a sack, on which, as well as on the rest of the conveyor, there was considerable lime dust, sufficient to conceal the sack, and to cause any one acquainted with the conveyThe conveyors were in sections, and those or to believe that it was properly covered. of the new one were just east of the old one, Bowers testified that he thought it was solid. over where the holes were to be cut. Malott It was suggested that, if Bowers could not said, "We moved it north to give them room see the sack, the other agents of the defendto cut the holes, maybe three feet, moved ant could not have done so; but the superone section." They had to go from the mid- intendent's testimony shows that they underdle of one tank to the middle of the other, took to keep it dusted-had a man with a and the plaintiff's witnesses testified that blow pipe-machinery was dusted Sunday, they could not go down on the side they and he had been there himself Sunday, and were, and hence had to cross over to the west said, "I would have seen bag if there on side of the conveyors, and then back to the Sunday; not looking for bags, but had aleast side. The line shaft was too low to per-ways looked around on top." It can scarcely mit them to stand up straight, and, in order be doubted that there was a sack or bag there to get over the conveyors, Bowers put his at the time of the accident; four witnesses, It was pulled hand on the old conveyor, and then put his besides the plaintiff, so swore. foot down on it to step over. He stepped on out with the foot of the plaintiff, when he a sack which was over a hole which had been was released. One witness said, "I had seen left in the top of the old conveyor. He says a sack across the conveyor at that point a he got his foot out, but the sack caught it week, or probably longer before;" and another and dragged it into the hole of the conveyor said, "I can state where he got hurt, but where where the screw was running. His foot the sack was I do not know; but where he got went down on the east side of the screw, and hurt, I know there were sacks there, in the imthe screw forced it over to the west side, mediate vicinity of that place; I saw sacks in thus crushing his leg and foot terribly. those places about two or three weeks beMalott said he fore Bowers was hurt." "could not notice that the top was off the conveyor while working around there, as there was dust all over there; all the same thing;" and he also said Bowers "set his hand on the conveyor, and set his foot to go across, and his foot went on down into the screw; it was necessary that he put his hand down; he couldn't step across, and he couldn't stand up and step upon it, and he bent and just put his hands on it, and he put his foot up."

The conveyor was supposed to be covered on top with the same material as the other portions of it, but in some unexplained way a part of the top had slid or been moved, leaving an open space of possibly 12 or 18 inches, although the exact size of the hole is not known. Over that space the sack had been placed. There is a good deal of lime dust about the conveyors, and, according to the evidence for the plaintiff, there was from 11⁄2 to 21⁄2 inches of it on the sack, and Bowers claims he could not see that there was a sack there, or anything unusual. Malott said, "I could not see that the place was not covered, dust over it; it all looked alike, probably 2 to 22 inches of lime dust over the sack and over the other portions of it." Conley said, “All covered with dust; I judge, 2 inches of dust there; I didn't see the sack." Izer said, "At time Bowers was hurt there was about 11⁄2 or maybe 2 inches of dust on everything up there." That was denied by the defendant's witnesses, but it was a question for the jury to determine. One witness said it would have taken three weeks for dust to accumulate to the depth of 2 to 21⁄2 inches. The superintendent of "the controlling end of the plant" said it would take a couple of months for two or three inches of lime to settle there. He did not think there could have been a sack there on the Sunday before the accident; he was not looking for bags but "was looking for holes in conveyors but saw none; looked for holes in any conveyor, as they are dangerous." He also said, "No excuse not to protect screw conveyors."

Conley said, "Campbell and I crossed over the conveyor on tank No. 2; stepped on it; it was impossible for us to step 2 feet and raise 14 inches; at that point both of the conveyors were together."

[2-4] Keeping those facts in mind, there can be no doubt that the lower court properly refused to take the case from the jury. The general rules of law applicable to master and servant are now too well settled to require the citation of many authorities, but it may not be amiss to recall some of the rules we have announced. In Bernheimer Bros. v. Bager, 108 Md. 551, 70 Atl. 91, 129 Am. St. Rep. 458, we said:

must exercise ordinary and reasonable care to "It is a fundamental rule that the master avoid unnecessary injuries to his servant, in the course of his employment. While he is permitted to delegate to others certain duties, there are some which he cannot relieve himself of, or avoid the responsibility for, if there be a failure to discharge them to the injury of the servant. One that is required of him, in this and maintaining safe machinery and appliances as well as in other jurisdictions, is providing and a reasonably safe place for the work undertaken by the servant. Necessarily there are

some exceptions to these as well as to most gen- | employès of the existence of such a latent eral rules." danger.

In that case we quoted with approval as we had previously done what was said by the Supreme Court in B. & O. R. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772:

"A master employing a servant impliedly engages with him that the place in which he is to work and tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place and the tools and machinery, and, when he employs one to enter his service, he impliedly says to him that there is no other danger in the place, the tools, and the machinery than such as is obvious and necessary."

We gave, as illustrations of the exceptions above referred to, when a place is out of repair and dangerous, and the employè un dertakes to make it safe, and when he accepts an employment or continues in it, with knowledge of the danger, the employè cannot ordinarily hold his employer liable.

Whether such conditions did in fact exist was for the jury, as was also the question whether the plaintiff was guilty of contributory negligence. The court could not say, as a matter of law, that it was negligence on the part of the plaintiff to place his foot where he did, if he believed the conveyor was covered, as it ought to have been, and as it usually was. The evidence certainly furnishes sufficient reasons for crossing where he did, and as he did, to require that to be submitted to the jury. The defendant's third prayer, asking the court to take the case from the jury on the ground of contributory negligence of the plaintiff, was therefore properly rejected. Its fourth, fifth, sixth, and seventh prayers, which were granted, fully instructed the jury as to plaintiff's alleged contributory negligence, and its seventh was properly modified. Its eighth, which was also granted with a slight modification, was as favorable as the defendant could expect or ask. ninth and tenth were properly rejected, and what we have already said will relieve us from discussing them.

The

In 2 Labatt's Master & Servant (2d Ed.) 995, p. 2668, the effect of changes in the parts of machines is thus stated:

[5] Applying these principles to the facts of this case, the plaintiff's first prayer was properly granted, and the defendant's first and second and its prayer 1A were properly rejected. There is nothing whatever in the evidence to contradict the plaintiff, when he said he did not know that the top of the conveyor was not solid, as it was supposed to be "A servant may recover damages for an inand as the defendant claims it thought it was. jury caused by the removal or alteration of No witness was more positive about the dansome essential part of a machine, when the danger of using it is thereby materially increased. ger of conveyors than Mr. Taylor, a super-Hence, whatever doctrine may be entertained as intendent of the company, and it may well to the existence of a duty on the part of the be inferred from his testimony that he re- employer to keep dangerous machinery covered garded them so dangerous as to inspect them (see sections 975, 976, ante), the employer is prima facie liable for an injury resulting from himself. He says he saw the old conveyor the entire or partial removal of a cover which the Sunday before the accident, and denied had been provided. The conditions thus created that there was then a collection of lime on are clearly more dangerous, because misleading, than those to which the servant is exposed when there has never been a cover at all. In such cases, therefore, the right to maintain the action is complete, and can only be defeated by showing that he understood and deliberately enchanged circumstances." countered the specific risks arising from the

the machinery or that there was a sack there. That was either the day before or two days before the accident. Bowers says the accident was April 8th, which was Monday, while one of the witnesses, according to the record, said it was on April 9th. But there was not only some evidence, but abundant evidence, in contradiction of those statements of Mr. Taylor. He is also reported in the record to have testified that there was "no excuse not to protect screw conveyors," and, as it was known that some of the employès would be working about the old conveyor, he would seem to be undoubtedly right in that statement. We can appreciate the difficulties that employers meet with at such a plant, but, if the evidence on the part of the plaintiff is correct (that sacks had been used on this conveyor for a week or more, as one witness said, or two or three weeks, as another said, and that the sack and other parts of the top of the conveyor were covered with so much dust that it would have taken several weeks to accumulate; Mr. Taylor said "a couple of months"), it was inexcusable on the part of the defendant, and it did neglect its plain duty to cor

In reference to the master's duty under statutes relative to factories, the same learned author in volume 5, § 1856, p. 5665, says:

"It is not sufficient for the master to furnish the guards; he must also adjust them; and the duty of guarding is continuous, so that the guards must be maintained as well as furnished, contemplated by the statute." and kept in condition to perform the service

[6] It only remains to consider the first and second exceptions, which we will briefly do. The first was to permitting a section of the West Virginia Code to be read. That

section is as follows:

"1. In all manufacturing, mechanical and other establishments, in this state, where the machinery, belting, shafting, gearing, drums and elevators, are so arranged and placed as to be engaged in their ordinary duties, shall be safely dangerous to persons employed therein, while and securely guarded when possible, and if not possible, the notices of the danger shall be conspicuously posted in such establishments, and no minor or female of any age shall be permitted to clean any of the mill gearing or machinery

tion." Code W. Va. 1913, c. 15H, § 59 (sec. | hole into which Bowers' foot went was 518).

larger than the width of the sack, yet the witness in his experiment said he had "used the width of the bag for an experiment (this width was 26 inches), and placed 21⁄2 inches lime upon it; the hole was longer than the width of the sack." If his object was to show that the sack sagged under those circumstances, it is very probable that it did when the hole was longer than the width of the sack. There might have been altogether different results if he had experimented with a hole which was known to be of the same size as the one into which plaintiff's foot went. One of the witnesses said that Bowers' leg had pushed away a part of the covering on top of the conveyor. One sack might have been stiffer than the other, but even if the sack did sag some before Bowers was hurt, unless he knew or had some reason to suppose there was a sack or something other than the regular cover, he would not likely have observed the sagging. He and the other witnesses who saw it said they did not notice that there was a sack there. For this

As this plant was in West Virginia, we think it was proper to admit that statute in evidence. It is not contended that the plaintiff could not sue the defendant in this state for these injuries, if service on the defendant could be had, as it was. It might materially affect the usefulness of such a statute, if, when suit is brought in a state other than the one where the injury happened, the courts of the former refused to admit it in evidence. It frequently happens that employés live on one side of a state line and work on the other side, and while they can sue in the state where the accident occurred, they are liable to be required to give security for costs and be subjected to other inconveniences, even if they can furnish the security. It is now very generally acknowledged that statutes of this character, if they were really and bona fide passed for the protection of employés, are not only desirable for them, but are in the end beneficial to employers and the public, and in a country like this, where there are so many different jurisdictions, the courts of one state should be inclined to aid in the enforcement of such meritorious statutes of another state, at least to the extent of applying their provisions to suits for injuries sustained where the statutes are in force. Of course we do not mean to say that, if a statute of one state be contrary to the policy adopted by the state in which suit is brought or is deemed unreasonable by the courts of that state, the latter must be governed by it, but, where such is not the case, it would seem to be only just to apply a statute which presum- (Supreme Judicial Court of Maine. Sept. 1, ably was read into the contract of employ ment or at least was binding on the parties.

One count of this narr. specially relies on the West Virginia statute, and while, independent of that, there was enough to go to the jury under the other count, we are of the opinion that the West Virginia statute was admissible. Without quoting from authorities, we will refer to some where the question is considered. Boston & Maine R. R. v. Hurd, 47 C. C. A. 615, 108 Fed. 116, 56 L. R. A. 193; Christiansen v. William Graver Tank Works, 223 Ill. 142, 79 N. E. 97, 7 Ann. Cas. 69; 22 Am. & Eng. Ency. of Law, 1378; 26 Cyc. 1291.

and other reasons which might be given, the experiment could not be accepted as satisfactory, but, at any rate, it is difficult to see how it could have had any material effect, in the face of the positive evidence as to the actual conditions. The judgment will be affirmed.

Judgment affirmed; the appellant to pay the costs.

(112 Me. 175) ROLLINS v. CENTRAL MAINE POWER CO.

1914.)

1. COSTS (§ 49*)-Demurrer-OvERRULING— PLEADING ANEW.

if a demurrer filed at the first term is overruled, Under Rev. St. c. 84, § 35, providing that, the defendant may plead anew on payment of costs, and that, after a decision on the demurshall be entered thereon unless costs are paid rer has been certified by the clerk, judgment and new pleadings are filed on or before the second day of the next term, a defendant whose demurrer is overruled must either pay or tender costs on or before the second day of the next term, and, in case of failure, his amended pleadings will be stricken and judgment rendered on demurrer.

[Ed. Note. For other cases, see Costs, Cent.
Dig. §§ 211-215, 217; Dec. Dig. § 49.*]
2. PLEADING (§ 239*)-Demurrer-PLEADING
OVER-WAIVER OF PAYMENT OF COSTS.

journment of court on the second day of the
A plaintiff, by failing to object, before ad-
term following the one when defendant's de-
murrer was overruled, to the filing of amended
pleadings by defendant, does not waive his
right to demand that, as defendant did not pay
the costs, judgment should be rendered on the
demurrer, because defendant has until the end
of the second day to pay such costs and until
fendant intends to make the payment.
such time plaintiff cannot know whether de-

[7] There was no error in the second exception. Without discussing the question from other standpoints, the conditions stated by the witness, as we understand them, are not shown to be the same as at the time of the accident. Precisely what the size of the opening was, which the sack covered when Bowers put his foot on the conveyor, is not shown, but there was evidence that the screw forced his leg along in the conveyor for some distance, but what the distance was is not known. There was no evidence that the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 626-635; Dec. Dig. § 239.*] •

An award of $4,900 in favor of plaintiff, a young man 23 years of age, who earned $2 a day, to compensate him for injuries resulting in the loss of one eye which had to be removed and the impairment of the sight of the other, is not excessive.

3. DAMAGES (§ 132*)-PERSONAL INJURIES- | gard to costs." The court ruled as matter of MEASURE OF DAMAGES. law that the filing of the plea without payment of costs did not make a good plea and granted the motion. No objection thus overruled can avail. The objections are based upon failures and omissions of defendant. The plaintiff was under obligations to do none of the things alleged to be undone.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 372, 385, 396; Dec. Dig. § 132.*1

On Motion and Exceptions from Supreme Judicial Court, Kennebec County, at Law. Action by Harold C. Rollins against the Central Maine Power Company. Judgment was rendered upon the overruling of defendant's demurrer, and defendant excepted and moved for new trial. Exceptions and motion denied.

See, also, 111 Me. 72, 88 Atl. 86.

Argued before CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

[2] The defendant argues that the plaintiff waived the payment of costs. If this be open to defendant under his bill of exceptions, we are forced to conclude that there was no waiver. Certainly none was expressed, nor do we consider that any can be inferred. Whether the cause was to be tried upon its merits or only upon question of damages, nothing was done during the first two days of the term which was not required in the way of preparation for trial by court or counsel in either event. Until adjournment at the end of the second day of the term plaintiff could not know if defendant had forgone his right. At the close of the second day the rights of the parties were fixed, and we are unable to find in the action of plaintiff thereBIRD, J. This is an action for the recov- after conduct from which a waiver of his ery of damages for personal injuries. It is rights as determined can be inferred. Hanhere upon exceptions to the ordering of judg- scom v. Ins. Co., 90 Me. 333, 38 Atl. 324, and ment upon demurrer and defendant's motion Haskell v. Brewer, 11 Me. 258, relied upon by for new trial upon the ground of excessive defendant, seem to be inapplicable to the presdamages. ent case. There are aspects of hardship in the case, but to grant relief would transcend the function of the court.

Benedict F. Maher, Harold H. Murchie, and Samuel Titcomb, all of Augusta, for plaintiff. Harvey D. Eaton, of Waterville, for defendant.

[1] As to the exceptions: Upon the facts set out in the plaintiff's bill, we think the exceptions to the ordering of judgment must be overruled. At common law, when exceptions to the overruling of a demurrer to the declaration were overruled, judgment on the demurrer, or that plaintiff recover, followed and was final. The Legislature, relaxing the severity of the common law, has provided:

"If the demurrer is filed at the first term and overruled, the defendant may plead anew on payment of costs from the time when it was filed, unless it is adjudged frivolous and intended for delay, in which case judgment shall be entered at the next term of court in the county where the action is pending, after a decision on the demurrer has been certified by the clerk of the district to the clerk of such county, and not before, judgment shall be entered on the demurrer, unless the costs are paid, and the amendment or new pleadings filed on the second day of the term." R. S. c. 84, § 35; State v. Peck, 60 Me. 498.

A new right is thus given, not to the plaintiff, whose rights at common law are abridged, but to the defendant whose rights are enlarged upon his compliance with the conditions named. The defendant filed his new pleadings on the first day of the "next term," but made neither payment nor tender of the costs upon either the first or second day.

A jury being impaneled for the trial of the cause, plaintiff moved on the fourth day of the term for judgment on the demurrer. To the granting of this motion the defendant objected because "there had been no taxation of costs, nor request for payment thereof, nor any mention whatever previously made in re

[3] Upon entry of judgment upon the demurrer, the damages were assessed by the jury in the sum of $4,935, which defendant claims to be excessive. Defendant offered no evidence. The plaintiff was at the time of his injury 23 years of age and earning in the employ of defendant $2 per day. The sight of one eye was destroyed and later the eye was removed. The evidence indicates that his earning capacity has been reduced, the other eye affected, and that annoyance and disfigurement must be experienced throughout life. Considering these elements of damage in view of his expectation of life, his pain, and expenses, the court is unable to say that the amount of the verdict shows bias, prejudice, or improper conduct on the part of the jury.

The exceptions and motion must therefore be overruled. So ordered.

(112 Me. 559)

PIERCE v. COLE. (Supreme Judicial Court of Maine. Sept. 7, 1914.)

FRAUD (§ 50*)-DECEIT-BURDEN OF PROOF.

In an action for deceit in the sale of a farm, the burden is on plaintiff to prove the misrepresentations alleged to have induced him to purchase, and on his failure to do so he cannot recover.

[Ed. Note. For other cases, see Fraud, Cent. Dig. §§ 75-77; Dec. Dig. § 50.*]