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the doors in the shaft on any floor that was desirable, and to leave them open and wait until the elevator arrived, then to step upon it, close the doors, and put the elevator to such use as the occasion required. He further testified that it was used by any of the employés who wanted it, and that it might be wanted every five or ten minutes during the day; that he used it in going from the weave shop to the upper floors 20 or 30 times a day, and from the weave shop to the cellar the same number; that on the day of the accident he had occasion to use it, but that Joseph Kelleher was using it with a load of cloth, and he walked downstairs to the lower room, opened the doors of the shaft and waited until Kelleher came down to that floor and took his load to the clothroom; that while waiting Mr. Houston, the overseer, gave him a box of filling to take down cellar, with instructions concerning it; that while he was receiving these instructions his head was turned away from the elevator, from which he was distant about a foot; that he went to put the box of filling on the elevator, which he thought was there all the time, and the elevator was gone and he fell with the box in his hand. It was admitted that there was plenty of light in the elevator shaft, so that he could see all right; that, when he got through talking with the overseer, about the same time he stepped sidewise right off, and did not look because he thought the elevator was there. He fell upon the freight elevator, which had descended about five feet from said floor. Said elevator at that time was not equipped with any device for giving notice that it was in motion, as required by Pub. Laws, p. 43, c. 973, passed April 3, 1902. At the conclusion of the testimony for the plaintiff at the trial of said case in the superior court, the justice presiding gave the jury the following instruction: "The evidence shows that the plaintiff was acquainted with this locality. He knew there was no bell there, and that it was perfectly lighted. He knew also that employés were in the habit of moving that elevator up and down, without giving notice. He turned away long enough for the elevator to have been appreciably lowered, and, as he states, he turned back and stepped onto the elevator, as he supposed, without looking to see if it was there, and by that means suffered an injury, and, I think, on the plaintiff's own showing that he contributed to the injury by his own negligence. The court, therefore, instructs the jury to return a verdict for the defendant." To this direction the plaintiff duly excepted, alleging that said action of the court was against the law and the evidence, and brought the case to this court upon his bill of exceptions based upon those grounds.

Pub. Laws, p. 43. c. 973, supra, also provided: "In all cases in which any person shall suffer injury in consequence of the failure of the lessee or owner or owners of

*

any building to comply with the provisions of this and the preceding section, such lessee and owner or owners shall be jointly and severally liable to any person so injured in an action of trespass on the case for damages for such injury. * * It shall be no defence to said action that the person injured had knowledge that any elevator was being operated in said building contrary to the provisions of this and the preceding section, or that such person continued to ride in said elevator with said knowledge." If this accident occurred in consequence of the failure of the defendant to equip the elevator with "some suitable appliance which shall give automatically, at all times, on every floor of said building which it approaches, a distinct, audible warning signal that said elevator is in motion," the doctrine of assumed risk cannot be received as a defense to such action, notwithstanding the fact that such omission or neglect of the defendant was known to the plaintiff.

The plaintiff was not injured by the elevator. Its presence, at the time of the injury, did him no harm. If it had been raised, instead of lowered, his fall would have been greater; for, instead of falling five feet to the elevator, he would have fallen the full distance to the bottom of the elevator shaft. It was apparent from his own testimony that the proximate cause of his fall and injury was his neglect to use his sense of sight in a perfectly lighted place. Therefore the question what defenses, under the statute, were open to the defendant, did not arise.

The plaintiff in his declaration alleges that he was in the exercise of due care at the time of the accident. It is a material allegation in an action for negligence, and must be proved by the plaintiff in order to maintain his case. Judge v. Narragansett Electric Light Co., 21 R. I. 128, 42 Atl. 507. It is not even a case where the plaintiff neglected to prove that he did look, for the plaintiff testified that he did not look. To step, without looking, into a hole in a perfectly lighted place, is negligence per se. The fact of the presence or absence of a bell will not excuse a person from the duty of looking, before stepping, in such circumstances. If the plaintiff had been injured by the elevator because no notice of its approach had been conveyed to his hearing, the fact that he knew of the absence of an audible signal, for that purpose, would furnish the defendant no defense, under the statute, in an action for such injury. But the bell or signal was to sound only while the elevator was in motion. When the elevator was at rest, no notice was to be given of that fact. It does not appear how a signal that the elevator was in motion would have assisted the plaintiff if he did not look. Of course, the absence of a sounding signal excused his listening for what he knew did not exist. The duty of looking was not in any way increased by the absence of such signal; neither was it diminished there

by. Such duty was unaffected by it, and remained the same as it was before the passage of the act. The act did not provide that the plaintiff might recover, in cases brought thereunder, notwithstanding his contributory negligence or want of due care therein, and it has been held correctly in a case involving the construction of a similar statute: "Where the statute does not otherwise provide, *

* the rule requiring the plaintiff, in an action for negligence, to show that at the time of the injury complained of he was in the exercise of due care, is the same, whether the action is brought under a statute or at common law. The doctrine of contributory negligence governs both classes of action." Taylor v. Carew Mfg. Co., 143 Mass. 470, 10 N. E. 308.

As the case is governed by the doctrine of contributory negligence, the justice of the superior court did not err in directing a verdict for the defendant. The plaintiff's exception thereto is therefore overruled, and the case is remanded to the superior court, with direction to enter judgment on the verdict.

(28 R. I. 240)

MITCHELL v. SAYLES. (Supreme Court of Rhode Island. March 13, 1907.)

1. EVIDENCE-SIMILAR CONDITIONS.

In an action for injuries to a servant through the bursting of a steam pipe, evidence of experiments intended to show the amount of pressure brought on the pipe, not made under conditions substantially identical with those existing at the time of the accident, was inadmissible.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 439.]

2. TRIAL-INSTRUCTIONS.

The refusal of special requests to charge is not error where all such as properly stated the law of the case were substantially included in the charge given.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.]

Exceptions from Superior Court, Providence County.

Trespass on the case for negligence by Margaret C. Mitchell, as administratrix, against Frank A. Sayles. Verdict for plaintiff, and defendant excepts to a denial of his motion for new trial. Exceptions overruled. Plaintiff's intestate, while in defendant's employ received injuries causing his death through the bursting of a steam pipe. Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, and PARKHURST, JJ.

John W. Hogan, for plaintiff. Edwards & Angell and Lewis A. Waterman, for defendant.

PARKHURST, J. This is an action of negligence for damages for death of plaintiff's intestate, Michael Mitchell, brought under the statute by the plaintiff for the benefit of herself as widow of said deceased, who died without issue.

The statement of fact in this case is not in any way essentially different, from that already set forth in the case of William Hardacre, Adm'r, v. Frank A. Sales, 28 R. I. 235, 66 Atl. 298, to which reference is hereby made to save repetition; the plaintiff's intestate in this case having died at the same time and as a result of the same accident as in the Hardacre Case. Upon trial of this case in the superior court, before Mr. Justice Baker and a jury, a verdict was returned for the plaintiff for $8,000, with special findings submitted by the defendant and hereinafter referred to. Thereafter the defendant duly filed his motion for a new trial, upon the usual grounds that the verdict was against the law and the evidence, and because of excessive damages, and for newly discovered evidence. After hearing the motion was denied by the presiding justice. Newly discovered evidence was not then, and is not now, urged. The evidence in the two cases is substantially the same and from the same witnesses, differing only in minor and immaterial matters except in two particulars: First, that the evidence of Cooney with regard to his observations of the joint, as to the slipping thereof, and as to his giving information regarding the same to Brassell, was corroborated by Patrick Roach, a helper who was holding the lantern, and testified that he saw the pipe slip in the T, and that he called Cooley's attention to it. The other matter in which the evidence differs relates to the offer by the defendant to put in evidence certain experiments or tests intended to show the amount of pressure or strain brought upon the joint by the expansion and contraction of the pipe. We think it is perfectly apparent that the tests attempted to be shown were not, and could not have been, made under conditions substantially identical with those in existence at the time of the accident, and would not only have been of no aid to the jury, but would have been positively misleading, and that the evidence as to these tests was properly excluded. Therefore all exceptions relating to the exclusion of evidence in relation to these tests must be overruled.

As to the other exceptions, they were of the same general character as in the Hardacre Case, and we have examined them with the same care, and do not find any substantial error therein; nor do we see that any useful purpose would be served by the discussion of them seriatim. The charge as given to the jury was a clear and satisfactory statement of the law and the court properly refused the special requests to charge the jury, inasmuch as all such special requests as properly stated the law of the case, if any, had already been substantially included in the charge as given. A general and special verdict was returned by the jury, as follows: "The jury find that the defendant is guilty in manner and form as the plaintiff has in her declaration thereof

complained against him, and assess damages for the plaintiff in the sum of $8,000. As the jury find specially, first, that the defendant did before the accident have knowledge, or reasonable means of knowledge, that the tee joint which burst on the 8th day of December, 1903, was dangerous; second, that the T joint was in a dangerous condition, to the knowledge of the defendant, prior to the accident, and that such dangerous condition was not known, or should not have been known, to Michael F. Mitchell, the plaintiff's intestate; third, that the pipe did move in the tee on the morning of December 8, 1903, before the accident." The special findings are entirely consistent with the general verdict.

Upon the same grounds as set forth in the Hardacre Case, 28 R. I. 235, 66 Atl. 298, we think that the evidence is sufficient to support both the general and the special verdict of the jury both as to liability and as to the amount of the verdict, which we do not find to be excessive.

The exceptions are overruled, and the case is remanded to the superior court, with instructions to enter judgment upon the verdict.

(28 R. I. 242)

Ex parte MOREY.

(Supreme Court of Rhode Island. April 10, 1907.)

1. DIVORCE — ALLOWANCE OF ALIMONY - ENFORCEMENT.

Court and Practice Act 1905, § 1152, provides that whenever any person shall be imprisoned in any action the party at whose suit such person is imprisoned shall pay a certain sum in advance for the board of such prisoner, which payment in advance shall continue to be made by the creditor during the time the prisoner shall be detained at his suit. Gen. Laws 1896, c. 259, § 2, provides that, in case of default in payment of the prisoner's board, the prisoner shall be discharged from jail. Held, that Court and Practice Act 1905, § 1152, did not require the wife, as a condition of keeping the husband in jail, for not paying the allowance made her in a divorce action, to pay the husband's board, and that, in case of default in the payment of such board, the husband was not entitled to be discharged from jail under Gen. Laws 1896, c. 259, § 2, since the husband being imprisoned for noncompliance with the decree of the court, and not simply for debt, the provisions of the statutes relating to imprisonment for debt had no application.

2. HABEAS CORPUS EXISTENCE OF OTHER REMEDY.

The sole remedy of a husband to secure release from imprisonment for not paying the allowance made a wife in a divorce action, whether it originated under an execution or by process for contempt, is by prayer or modification of the decree for sufficient cause addressed to the court which made it, and not by habeas corpus.

Case Certified from Supreme Court, ProviMence County.

habeas corpus, heard before the superior court, and certified, under Court and Practice Act 1905, 478, to the Supreme Court. Papers in the cause, with the decision certified thereon, remanded to the superior court for further proceedings.

The facts are fully stated in Mowry v. Bliss, 28 R. I. 114, 65 Atl. 616.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

James B. Littlefield, for petitioner. John C. Quinn, for Ethel J. Morey.

DUBOIS, J. In the above-entitled proceeding in the superior court, and prior to the trial thereof on its merits, two questions of law arose which, in the opinion of said court, were of sufficient importance to be certified to this court for determination, under the provisions of Court and Practice Act 1905, § 478. The questions are as follows:

"First. Is the wife, as condition of keeping the husband in jail for not paying the allowance, by the provisions of section 1152 of the court and practice act of 1905, required to pay the husband's board?

"Second. In case default is made in the payment of such board, is the husband entitled to a writ of habeas corpus to secure his discharge from jail, if the keeper refuses to discharge him in accordance with the provisions of chapter 259, § 2, of the General Laws of 1896?"

"The

Both of these questions must be answered in the negative. The provisions of Court and Practice Act 1905, § 1152, and General Laws 1896, c. 259, § 2, do not apply to divorce cases or proceedings thereunder which are purely statutory. Fidler v. Fidler, 28 R. I. 102, 65 Atl. 609. We have already said concerning this petitioner, in Mowry v. Bliss, 28 R. I. 114, 117, 65 Atl. 616, 618: prisoner is not simply imprisoned for debt. He is imprisoned for noncompliance with the decree of the superior court which has exclusive original jurisdiction of the subject." As he is not simply imprisoned for debt, the provisions of the statutes relating thereto, including that relative to the payment of board, have no application. It is only necessary to repeat our own concluding remarks in Mowry v. Bliss, supra: "The sole remedy of a prisoner for release from such imprisonment, whether it originated under an execution or by process for contempt, is by prayer for modification of the decree, for sufficient cause, addressed to the court which made it." Therefore habeas corpus is inappropriate as a remedy in such case.

The papers in the cause, with this decision certified thereon, are hereby remanded to the

Petition by Albert L. Morey for a writ of superior court for further proceedings.

(28 R. I. 244)

HARTLEY v. RHODE ISLAND CO. (Supreme Court of Rhode Island. April 10, 1907.)

EXCEPTIONS, BILL OF- ALLOWANCE-STATUTORY PROVISIONS.

Court & Practice Act 1905, § 473, provides that when any person is aggrieved by any order or judgment of the superior court, and from accident, mistake, or unforeseen cause has failed to prosecute a bill of exceptions, the Supreme Court, if justice requires a revision of the case, may on petition allow an appeal. Held, that where the bill was retained without approval by the presiding justice until more than 20 days had elapsed, and no application was made within 30 days after the filing of the bill to establish it in the Supreme Court, the fact that the party filing the bill acted in good faith in supposing, according to the practice, that the presiding justice, in retaining the transcript and bill of exceptions for examination, was not intending to act adversely to the interests of that party, did not entitle him to relief under section 473.

Trespass on the case by Gertrude Hartley against the Rhode Island Company. Petition by defendant, under the provisions of Court & Practice Act 1905, § 473, for leave to file and have allowed its bill of exceptions. Petition dismissed.

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PER CURIAM. The above-named defendant, being aggrieved by verdict of a jury, and denial of its motion for a new trial in the superior court, prepared and filed a bill of exceptions to this court. Said bill of exceptions was retained without approval by the presiding justice of the superior court until more than 20 days had elapsed, and no application was made within 30 days after the filing of the bill to establish it in this court. The petition sets out, as the defendant's reason for not making timely application to this court, that "it acted in good faith in supposing, according to the practice, that the presiding justice in retaining the transcript and bill of exceptions for examination was not intending to act adversely to the interests of the defendant."

We are unable to see in this statement any ground to justify us in acting under the provisions of section 473, Court & Practice Act 1905. The omission to apply to this court within the time specified was not occasioned by accident, mistake, or unforeseen cause in the sense of that statute. In Baker v. Tyler, 28 R. I. 152, 66 Atl. 65, the party was not in default, for the time had never been fixed within which the statute required him to act.

The petition must therefore be denied and dismissed.

(28 R. I. 256)

SHERIDAN v. GORHAM MFG. CO. (Supreme Court of Rhode Island. April 3, 1907.) MASTER AND SERVANT-RISKS ASSUMED BY SERVANT-OBVIOUS DEFECTS IN APPLIAN

CES.

A servant using an ordinary ladder in the course of his usual employment was chargeable, equally with the master, with knowledge of the fact that the iron points in the end of each side of the ladder were dull and smooth, so that it was likely to slip on the floor, and he assumed the risk of using it in that condition.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §8 574-600.]

Exception from Superior Court, Providence County.

Action by Hugh J. Sheridan against the Gorham Manufacturing Company. Judgment for defendant, and plaintiff excepts. Exceptions overruled.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Thomas J. Flynn, for plaintiff. Vincent, Boss & Barnefield, for defendant.

PARKHURST, J. This is an action of trespass on the case for negligence, and is now in this court on the plaintiff's exceptions to the action of the superior court in sustain ing a demurrer to the declaration.

The declaration states that the plaintiff was a servant of the defendant, and that in the course of the plaintiff's employment as an electrician it became necessary to use a ladder for the purpose of reaching a ceiling of one of the rooms in the defendant's factory; that the ladder which the defendant provided and gave to the plaintiff was unsafe and defective, in that certain iron points, or spurs, with which said ladder was equipped at its lower ends, had become dull and smooth, so that said ladder while in use was likely to slip on the floor; and that while plaintiff in using said ladder was standing on one of its rounds said ladder slipped and precipitated the plaintiff to the floor, thereby injuring him. The usual allegations of knowledge by the defendant and lack of knowledge by the plaintiff, who is alleged to have been in the exercise of due care, are contained in the declaration.

To this declaration the defendant demurred upon the following grounds: First. Because it does not appear in said declaration that the plaintiff could not, in the exercise of reasonable diligence, have known that the iron points in the end of each side of the ladder were dull and smooth before he placed himself upon said ladder. Second. Because it appears in and by said declaration that the plaintiff had an equal opportunity with the defendant of knowing of the condition of said ladder. Because it appears in and by said declaration that the plaintiff was not in the exercise of due care. This

Third.

demurrer was heard before Mr. Justice Brown in the superior court on October 30, 1906, and the demurrer was sustained by decision rendered on November 13, 1906. To this decision the plaintiff duly excepted, and filed a notice of intention to prosecute a bill of exceptions according to law. The bill of exceptions was duly allowed, and the case was thereupon certified to this court. The exceptions simply raise the question of whether or not Mr. Justice Brown erred as a matter of law in sustaining the demurrer.

The plaintiff contends that inasmuch as he has alleged in his declaration that he was in the exercise of due care, and had no knowledge of the danger of slipping incident to the use of the ladder, he has tendered proper issues of fact upon these points, and his declaration is not, for that reason, demurrable; but his citations in support of this point fail to sustain his contention. In Flynn v. International Power Co., 24 R. I. 291, 52 Atl. 1089, the only point of the decision relevant to the case at bar was that the failure of the plaintiff to allege that he did not know of the defect complained of as negligence made the first count of the declaration demurrable. It was not decided that the presence of such an allegation under any or all circumstances would forbid a demurrer. And in Dalton v. R. I. Company, 25 R. I. 574, 57 Atl. 383, it was held that the want of an allegation negativing the assumption of a known risk, or stating an excuse for continuing the work if the risk was known, made the declaration demurrable. It was not decided that the presence of such allegations would under all circumstances forbid a demurrer. On the contrary, the principle laid down by this court in the case of Baumler v. Narra. Brewing Co., 23 R. I. 430, 50 Atl. 841, is equally applicable to the case at bar. Tillinghast, J., on page 435 of 23 R. I., page 842 of 50 Atl., speaks for the court as follows: "The plaintiff further argues that the allegation in the declaration that he was in the exercise of due care is sufficient to rebut the claim made by defendant that plaintiff assumed the risk. We do not think so. The court must take the declaration in a case of this sort as a whole in determining whether it states a case; and, if it appears from all the facts stated therein that the plaintiff could not have been in the exercise of due care, the mere fact that it alleges that he was does not save it from being demurrable. We may also add that we do not agree with the plaintiff's contention that the allegations of lack of knowledge of the work, and the location, and lack of warning regarding the same, prohibit the assumption that the danger was obvious and that the plaintiff assumed the risk. When it is apparent, from the facts stated in a case of this sort, that, If the plaintiff had used his senses, he must have known of the danger complained of, no allegation which he may incorporate in 66 A.-37

his declaration as to lack of knowledge, lack of warning, or duty of the master will be allowed to overcome and rebut said facts and render the declaration sustainable. Such a declaration is inconsistent, and therefore demurrable."

It has been repeatedly held that an ordinary ladder, such as was used in the case at bar, is to be classed with other ordinary "hand tools," and so that the servant using a ladder in the course of his usual employment is chargeable, equally with the master, with knowledge of its obvious imperfections. Thus it was said in Cahill v. Hilton, 106 N. Y. 512, 518, 13 N. E. 339, 341, as follows: "A ladder, like a spade or hoe, is an implement of simple structure, presenting no complicated question of power, motion, or construction, and intelligible in all of its parts to the dullest intellect. No reason can be perceived why the plaintiff, brought into daily contact with the tools used by him, as he was, should not be held chargeable, equally with the defendants, with knowledge of their imperfections." So, also, in Marsh v. Chickering, 101 N. Y. 396, 5 N. E. 56, a case very similar to the case at bar, but a stronger case for the plaintiff, inasmuch as the proof showed that the plaintiff had given the defendant actual notice of the want of hooks and spikes to keep the ladder from slipping, and had received the promise of the superintendent that these safety appliances should be placed upon the ladder; and yet the plaintiff had continued to use the ladder without them until he was injured by reason of the slipping of the ladder. He was held to have assumed the risk of the known danger. So, also, in the case of Borden v. Daisy Roller-Mill Co., 74 N. W. 91, 98 Wis. 407, 67 Am. St. Rep. 816, which raises substantially the same question, as in the case at bar; and the court in an elaborate and well-considered opinion, says (page 92, of 74 N. W., page 409 of 98 Wis. [67 Am. St. Rep. 816], as follows: "A ladder is one of the most simple contrivances in general use. The danger attending such use is a matter of almost common knowledge, and is particularly within the knowledge of men engaged in such work as that in which plaintiff was employed when injured. There was no question in the case as to plaintiff's being an experienced workman in the use of ladders on floors in mills; no dispute but that he had as good an opportunity as defendant for knowing of the defects in the ladder, if any existed, and all the probable consequences that might follow; no dispute but that he might, by an instant's inspection of the ladder, have found out its exact condition; no dispute but that he selected the ladder and used it without any sufficient, or really any, inspection in regard to its being furnished with points to prevent its slipping on the floor. In that state of the case, under the well-setttled rule that an employé is chargeable with know!edge of all the dangers that are apparent to

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