Where a blacksmith's helper was directed by the superintendent of the entire work, the construction of a basin for a reservoir and dam, to work for the blacksmith and take his orders, it was a question for the jury whether the blacksmith had authority to set the helper to work about a planer when not needing his assistance, and whether the helper, in working about the planer, was a mere volunteer. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1005; Dec. Dig. 284(3).] 7. MASTER AND SERVANT 284(3)—INJURIES [* * * I_says 'there are two men there now 8. TRIAL 356(6) SPECIAL INTERROGA-* Exceptions from Superior Court, Hampden R. P. Stapleton and E. J. Stapleton, both of Holyoke, for plaintiff. O'Neil & Dillon, of Holyoke, for defendants. PIERCE, J. About ten days before July 29, 1911, the plaintiff was hired to work as a common laborer for the defendant, who was engaged in building a basin for a reservoir and dam. Mr. Peckham, who hired the plaintiff, was the only superintendent of the defendant. The plaintiff testified: ** That on the morning of the third day of his employment, "Mr. Peckham told me to go to work for Mr. Monte and help him around the blacksmith shop as his helper, and I would be under Mr. Monte from then until I got further orders; he told me any instructions Mr. Monte should give me should be obeyed by me; I went right over to the blacksmith, to Mr. Monte; * the blacksmith shop was right close to the dam; * * it was simply the forge and anvil, and there was a roof over the place where the machinery was, and there was a partition on one side of it: there was a gasoline engine and lathe and planer there; I worked there about eight days up to the day I was hurt; I was helping Mr. Monte; sometimes I was striking and helping him on heavy blacksmith work, threading bolts, and tapping nuts; * * other times I would help while he was drilling on a lathe; the day I was injured Mr. Monte spoke to me about doing some other work; * * * he told me I ought to keep busy at something; he told me any time he be away to go and help them fellows at the planer; it was the nearest machine to the anvil; so he went away after he told me that and I went over there and helped them work on the planer for perhaps half an hour; then when he came back, I followed him back to the anvil and helped him; *** about nine he had to go away * * and he told me to go and help them on the planer; [1] In support of the contention that the planer was defective and dangerous because of the absence of an upper press or roll on the back of the machine, which would serve also as a guard, the plaintiff introduced two verified photographs. In anticipation of the defendant's case, he offered in chief a photograph which showed the planer with an upper roll. He denied that it accurately represented the machine as it was at the time of the accident. The presiding judge refused to receive it in evidence. The plaintiff now contends that it was admissible for the purpose of illustrating the dangerous nature of the planer when equipped with the rear roll, and of proving that it was not adequately guarded even in that condition. Also, it should have been admitted so that the jury might judge as to whether the witnesses who said they saw it without the roll could distinguish the difference between the planer with and without the roll. These considerations have all the earmarks of after thoughts. Had they been adequately called to the attention of the prewould have been granted to use the photosiding judge, it is fair to assume permission graph as an illustrative chalk to assist the jury in understanding the respective contentions of the parties. There was no error in its exclusion. [2] The witness for the plaintiff, Carmody, after testifying in cross-examination that he "was not in any way prejudiced against Mr. Young" stated, "I did at one time borrow For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [6] The presiding judge rightly ruled that Mr. Monte was not an acting superintendent. Other than the fact that he was boss over his single helper in a blacksmith department of a shack that contained a forge, an anvil, and a lathe, there is no evidence that at the time of the accident he exercised any direction or control over any workman in the employ of the defendant. some money from him." He was then asked, direction of Mr. Monte, who was his boss and "Have you paid it back?" to which, subject a person whom he was bound to obey in the to the plaintiff's exception, he replied in sub-work of the blacksmith shop. stance that he had not. We cannot say that the fact that a borrower of money unduly delays to discharge his just obligation is not some evidence of a state of mind toward his creditor which has a tendency to prevent dispassionate consideration of any question involving the creditor's interests. The admission of the testimony was within the discretion of the presiding judge. Wallace v. Taunton St. Ry., 119 Mass. 91. [3] The evidence offered in rebuttal "to show that the machine could be run without the back roll" was not improperly excluded by the presiding judge in the exercise of his discretion. It was a part of the plaintiff's case to show that the planer was in fact op-ed, to sustain the plaintiff's claim that he erated without the back roll at the time of the accident, and to prove that it was defective and dangerous because of the absence of the back roll. Burnside v. Everett, 186 Mass. 4, 5, 71 N. E. 82, and cases cited. [4, 5] The special finding of the jury is warranted by the testimony, and established that the machine, whether it had or had not the back roll and pressure roll, was not as a machine defective or dangerous. The jury upon making this finding brought in a general verdict for the defendant, by direction of the court. The plaintiff duly excepted to the direction and contends, as we think, rightfully, that there remained upon the pleadings undecided the issue whether the plaintiff should have been warned that the material as it passed between the roll and knives of the planer was likely to jump and "kick back" taking with it the hand of the operator, unless he should seasonably and adequately guard against such a result. The plaintiff was inexperienced. There was evidence that he did not know or realize that the plank as it passed through the planer was apt to "kick back" or that if it did that the natural consequence would be to draw his hand into the knives. Such result is not an obvious result, and the fact that a stick may jump as it is planed is not a matter of common knowledge. We are of opinion that the plaintiff was entitled to go to the jury upon this issue, if he was acting in the course of his employment and not as a volunteer. Hanson v. Ludlow Mfg. Co., 162 Mass. 187, 38 N. E. 363: Joyce v. American Writing Paper Co., 184 Mass. 230, 68 N. E. 213; Silva v. Davis, 191 Mass. 47, 77 N. E. 525; Lavartue v. Ely Lumber Co., 213 Mass. 65, 67, 99 N. E. 469. The testimony relating to his employment in connection with the operation of the planer is conflicting, but the jury could find that he entered upon that work in response to the [7] There remains the question whether there was evidence to warrant the jury in finding that the plaintiff was set to work at the planer by Monte, and whether Monte was authorized by the defendant to place him there. There was ample evidence, if believ was directed by Monte "to help the fellows at the planer." The evidence was undisputed that he was told by the general superintendent to go and help Mr. Monte. The jury could believe that he was told to go to work for Mr. Monte and help him around the blacksmith shop as his helper; that he should be under Mr. Monte "until he got further orders" and "that he should obey any instructions Mr. Monte gave him." If the jury should believe that the superintendent gave the above directions to the plaintiff, we cannot say as matter of law that Mr. Monte was without authority to set the plaintiff to work about the planer, or that the plaintiff was a mere volunteer. If Mr. Monte had authority and did direct the plaintiff "to help them on the planer," Monte represented the defendant, and the defendant was bound to give the plaintiff suitable instructions and is answerable for the failure to have that duty performed whether and to whomsoever it may be delegated. Hammond, J., in Grace v. United Society Called Shakers, 203 Mass. 355, 357, 89 N. E. 552; Glass v. Hazen Confectionery Co., 211 Mass. 99, 97 N. E. 627. [8] The failure of the jury to agree upon the questions, "(1) Was the plaintiff Fitzgerald directed by Monte to help on the planer at the time when he was injured?" and "(2) Was the plaintiff Fitzgerald in the exercise of due care when injured?" does not amount to a finding of fact that Monte did not direct Fitzgerald to help on the planer or that in so doing Fitzgerald was not in the exercise of due care. These issues, like the right to be warned, remain undetermined. The new trial shall be limited, under count one of the declaration, to the determination of the issue not submitted to the jury in the case at bar, and as to all other issues the verdict is to stand. St. 1913, c. 716, § 1. Exceptions sustained. (225 Mass. 65) (Supreme Judicial Court of Massachusetts. Worcester. Oct. 16, 1916.) 1. STREET RAILROADS 112(3) CARE REQUIRED OF INFANTS-BURDEN OF PROOF. Prior to passage of St. 1914, c. 553, declaring the presumption that one injured was in the exercise of due care, where an infant killed by a car was too young to care for himself, his administrator could recover only by showing due care of the custodian. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 227, 228; Dec. Dig. 112(3).] 2. NEGLIGENCE 95(3) IMPUTED NEGLI GENCE-CHILDREN-EVIDENCE-DUE CARE. Where the older brother of plaintiff's intestate irresponsible infant went upon street car tracks with him, without looking, in front of an approaching car, in plain sight, only a short distance away, there could be no recovery. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 154; Dec. Dig. 95(3).] Exceptions from Superior Court, Worcester County; William F. Dana, Judge. Action by Paul Garabedian, administrator of Suren Garabedian, deceased, against the Worcester Consolidated Street Railway Company. On plaintiff's exceptions to direction of verdict for defendant. Exceptions overruled. John W. Sheehan, of Worcester, for plaintiff. Charles C. Milton, John M. Thayer, and Francis H. Dewey, all of Worcester, for defendant. (225 Mass. 80) COMMONWEALTH v. PERKINS et al. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 14, 1916.) 1. CONSPIRACY 34-OBSTRUCTING JUSTICE -PROCURING ABSENCE OF WITNESS. It is a criminal conspiracy to obstruct the courts of justice to procure a material witness to absent himself from trial, though he is not under process to attend. Cent. Dig. §§ 61-67; Dec. Dig. 34.] 2. CONSPIRACY 34-OBSTRUCTING JUSTICE of compounding a felony, has not impliedly Rev. Laws, c. 210, § 37, defining the crime brought to an end the common-law crime of conspiring to obstruct justice by procuring the absence from trial of a material witness, whether or not under process to attend. 34.] [Ed. Note.-For other cases, see Conspiracy, Cent. Dig. §§ 61-67; Dec. Dig. 3. CONSPIRACY 43(11)-INDICTMENT-SUFCONSPIRACY TO OBSTRUCT JUS FICIENCY TICE. Under Rev. Laws, c. 218, § 34, relative to immaterial defects in an indictment, an indictment, charging a criminal conspiracy to obstruct justice by procuring the absence from trial of a material witness, which, after setting forth the pendency in court of a complaint against W. for the illegal sale of liquor, and the fact that defendant P. was a material witness at the trial, in substance charged defendants with having conspired to obstruct justice by agreeing, in consideration of the payment of $500, to bring it about that P. should absent. himself from trial, was sufficient. Cent. Dig. §§ 86, 98; Dec. Dig. 43(11).] [Ed. Note.-For other cases, see Conspiracy, Exceptions from Superior Court, Worcester County; Christopher T. Callahan, Judge. Fred B. Perkins and Edward L. Scully were convicted of conspiracy to obstruct justice, and they bring exceptions. Exceptions overruled. PER CURIAM. [1] The plaintiff's intestate, being too young to take care of himself, and the injury having been received prior to the passage of St. 1914, c. 553, the plaintiff Jas. A., Stiles, Dist. Atty., of Gardner, and can recover only by showing the due care of Edward T. Esty, Asst. Dist. Atty., of Worthe custodian. Casey v. Smith, 152 Mass.cester, for the Commonwealth. Geo. S. Taft, 294, 25 N. E. 734, 9 L. R. A. 259, 23 Am. St. of Worcester, for defendants. Rep. 842. [2] The record is barren of anything to indicate such care. The evidence is that the custodian, a brother twelve years old, went upon the tracks of the defendant with the deceased, without looking, in front of an approaching car in plain sight only a short distance away. The case is governed by Mills v. Powers, 216 Mass. 36, 102 N. E. 912; Kyle v. Boston Elev. Ry., 215 Mass. 260, 102 N. E. 310; Walukewich v. Boston & Northern St. Ry., 215 Mass. 262, 102 N. E. 311; Russo v. Brown Co., 198 Mass. 473, 84 N. E. 840; Murphy v. Boston Elev. Ry., 188 Mass. 8, 73 N. E. 1018; Holian v. Boston Elev. Ry., 194 Mass. 74, 80 N. E. 1, 11 L. R. A. (N. S.) 166; O'Brien v. Boston Elev. Ry., 217 Mass. 130, 104 N. E. 442; Godfrey v. Boston Elev. Ry., 215 Mass. 432, 102 N. E. 652; Moran v. Boston Elev. Ry., 222 Mass. 438, 110 N. E. 1037. Exceptions overruled. LORING, J. [1] (1) In Commonwealth v. Reynolds, 14 Gray, 87, 74 Am. Dec. 665, it was decided that it is a criminal offense at common law to procure a person summoned as a witness to absent himself from the trial. This decision was made on the authority of 4 Bl. Com. 126; 1- Russ. on Crimes (7 Am. Ed.) 183; State v. Keyes, 8 Vt. 57, 30 Am. Dec. 450; State v. Carpenter, 20 Vt. 9. Of these authorities State v. Carpenter is the only one where it affirmatively appears that the witness was under process to testify. In State v. Keyes it appeared affirmatively that he was not. The language of the other authorities and the cases on which they are founded (see 1 Hawkins P. C. c. 6, § 15; Rex v. Lawley, 2 Str. 906) is general. In addition there is authority for the proposition that the crime is made out although the person who is in fact a witness is not under process to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes water power. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 45; Dec. Dig. 53.] attend. Commonwealth v. Berry, 141 Ky. | working a mill upon and across any nonnaviga477, 133 S. W. 212, 33 L. R. A. (N. S.) 976, which drives its machinery is in whole or in part ble stream, provided that the motive power Ann. Cas. 1912C, 516, and cases there cited. However that may be, there can be no doubt but that it is a criminal conspiracy to obstruct the course of justice by procuring a material witness to absent himself from the trial although he is not under process to attend. State v. Bartlett, 30 Me. 132. State v. DeWitt, 2 Hill (S. C.) 282, 27 Am. Dec. 371; King v. Mawbrey, 6 T. R. 619; Regina v. Hamp, 6 Cox C. C. 167. 4. WATERS AND WATER COURSES 167(1) The dam of a mill operated by water power to generate electricity to be transmitted and sold is a "dam," within Rev. Laws, c. 196, relative to mills and milldams. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 192, 194-199, 201, 202; Dec. Dig. 167(1).] WATERS AND WATER COURSES [2] There is nothing in the suggestion that R. L. c. 210, § 37, defining the crime of com-5. pounding a felony has impliedly brought to an end this common law crime. [3] (2) The indictment, although not well drawn, is sufficient at least under R. L. c. 218, § 34. After setting forth the pendency in court of a complaint against one Winter for the illegal sale of liquor, and the fact that the defendant Perkins was a material witness at the trial thereon, the indictment in substance charges the defendants with having conspired to obstruct the course of justice by agreeing in consideration of the payment of $500 to bring it about that Perkins should absent himself from the trial. It is not necessary to consider the cases relied on by the defendants decided before the enactment of what is now R. L. c. 218. Exceptions overruled. The term "water mill," within Rev. Laws, c. 196, § 1, providing that a person may erect and maintain a water mill and a dam to raise the water of a nonnavigable stream, includes a mill operated by water power to generate electricity JURIES BY DAM-REMEDY-STATUTE. 176-IN The only remedy for injuries caused by a dam which is within the milldam statute (Rev. Laws, c. 196) to land and buildings is by petition of the owners for compensation under sections 4 and 19 of the act. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 237; Dec. Dig. 176.] Appeal from Supreme Judicial Court, Franklin County. Suit by Florence Duncan and others against the New England Power Company and others. From a decree sustaining defendants' pleas in bar and dismissing the bill, plaintiffs appeal. Decree affirmed. Wm. A. Davenport and Abner S. McLaud, both of Greenfield, for appellants. Dana Malone, of Greenfield, and Geo. S. Fuller, of Boston, for appellees New England Power Co. and the Connecticut River Transmission Co. Tyler, Corneau & Eames, of Boston, for appellee New England Trust Co. LORING, J. [1] The pleas in bar filed in this case present this question: Is a mill operated by water power to generate electricity to be transmitted and sold a water mill within R. L. c. 196, § 1? It seems to have been assumed in this commonwealth that it is. It was so assumed in Rourke v. Cent. Mass. Electric Co., 177 Mass. 46, 58 N. E. 470. And in Otis Co. v. [Ed. Note.-For other cases, see Waters and Ludlow Mfg. Co., 186 Mass. 89, 70 N. E. 1009, Water Courses, Cent. Dig. § 45; Dec. Dig. 104 Am. St. Rep. 563, it was assumed that & 53. to be transmitted and sold. For other definitions, see Words and Phrases, Second Series, Water Mill.] 2. WATERS AND WATER COURSES 53RIGHTS OF RIPARIAN PROPRIETORS-STATUTE "WATER MILL." mills operated by water power to generate electricity to be used as the motive power of cotton and cordage mills owned by the same corporations were water mills within the act. Finally the point was so decided in New Hampshire under a similar statute. McMillan v. Noyes, 75 N. H. 258, 72 Atl. 759. The petitioners' contention to the contrary A "water mill," within Rev. Laws, c. 196, § 1, providing that a person may erect and maintain a water mill and a dam to raise water for working a mill upon and across any nonnavigable stream, includes a mill operated by water is mainly based upon Southwest Missouri to generate electricity, though none of it is sold Light Co. v. Scheurich, 174 Mo. 235, 73 S. in the county. W. 496. It was there decided that a plant [Ed. Note.-For other cases, see Waters and operated by water power to generate elecWater Courses, Cent. Dig. § 45; Dec. Dig.tricity was not a mill within Rev. St. Mo. Water Courses, Cent. Dig. § 45; Dec. Dig. 53.] 3. WATERS AND WATER COURSES 53 RIGHTS OF RIPARIAN PROPRIETORS-STATUTE -"WATER MILL." A mill to make any article or thing whatsoever is a "water mill," within Rev. Laws, c. 196, § 1, providing that a person may erect and main tain a water mill and a dam to raise water for 1889, c. 113. But the act there in question was not an act similar to R. L. c. 196. That act (Rev. St. Mo. 1889, c. 113) was an act delegating the power of eminent domain to any person proposing to erect a mill to be operated by water power. It not only gave him power to, is based upon a recital found in the origsecure a right of flowage over lands of other inal act, Prov. L. 1713-14, c. 15 (Prov. Laws, p. persons but it authorized him in case he own- 729).1 But this recital was omitted when the ed land on one bank of the river only to Province Law was re-enacted by St. 1795, c. condemn land on the other bank for the 74. It cannot be seriously contended that a abutment of his dam. To justify the delega- water mill for the manufacture of cotton tion of the power of eminent domain the goods, for example, none of which are sold court was of opinion that the mill to be within the county in which the mill is situaterected must be a public mill. And they ed, is not within R. L. c. 196, §.1. pointed out that by another chapter of Mo. Rev. St. (said to be of "twin origin and of equal age") public mills were defined to be "all gristmills which grind for toll, and all water gristmills, built on any water course by authority of any statute or order of any court," and that it was there provided that public mills "shall grind for customers at least four days in each week." Rev. St. Mo. 1889, § 7024. The court decided that for these reasons and for the further reason that the wording of the original statute enacted in 1822 (1 Terr. Laws 1804-1824, p. 948) had been in substance maintained in the several re-enactments of it, the word "mill" had its primary meaning of "an engine or machine for grinding or comminuting any substance as grain by rubbing it or crushing it between two hard, indented surfaces." [3] The last contention of the petitioners is that the generation of electrical power to be transmitted and sold for operating machinery could not have been within the contemplation of the legislators when the original act was enacted in 1713-14, and for that reason this water mill is not within R. L. c. 196, § 1. But what is manufactured in a mill is not the test of its being or not being a water mill within R. L. c. 196, § 1. The thing which makes or does not make the mill a water mill within that act depends upon the power which drives its machinery. mill to grind corn, to saw boards, to roll iron, to manufacture goods, to generate electricity or to make any other article or thing is a water mill within R. L. c. 196, § 1, provided the motive power which drives its machinery is in whole or in part water power. A [4, 5] On the allegations of the plea the dam here complained of is a dam within R. L. c. 196. It follows that it is not a nuisance and that the only remedy for injuries caused by it to the land and buildings of the plaintiffs is by petition for compensation under that act. See R. L. c. 196, §§ 19 and 4. Stowell v. Flagg, 11 Mass. 364; McNally v. Smith, 12 Allen, 455. We have examined all the cases relied on in this connection by the plaintiffs and find nothing in them requiring special notice. Decree affirmed with costs. (225 Mass. 110) POWERS v. RADDING et al No one of the grounds on which Southwest Mo. Light Co. v. Scheurich was decided is applicable here. The act here in question (R. L. c. 196) is not founded on the exercise of the power of eminent domain but is an act regulating the rights of the several proprietors of land bordering on the same stream. The decisions to that effect are collected in Otis Co. v. Ludlow Mfg. Co., 186 Mass. 89, 95, 70 N. E. 1009, 104 Am. St. Rep. 563. If the word "water mill" in the original statute enacted by the province (Prov. L. 1713-14, c. 15, 1 Prov. Laws, p. 729) applied to mills in the primary sense of the word only, the word ceased to have that meaning when the Province Law was enacted by the commonwealth in St. 1795, c. 74, of which R. L. c. 196, is the last re-enact-(Supreme ment. The manufacturing industries of the commonwealth have been built up on that construction of that act. By the practice of a hundred years a water mill within what is now R. L. c. 196, § 1, includes mills for the manufacture of goods and the rolling of iron as well as for the grinding of corn. See for example Wolcott Woolen Mfg. Co. v. Upham, 5 Pick. 292; Fiske v. Framingham Mfg. Co., 12 Pick. 68; Palmer Co. v. Ferrill, 17 Pick. 58; Charles v. M. & B. Mfg. Co., 17 Pick. 70; Bates v. Weymouth Iron Co., 8 Cush. 548; Howard v. Props. of Locks & Canals, 12 Cush. 259; Stetson v. E. Carver Co., 97 Mass. 402; Drake v. Hamilton Woolen Co., 99 Mass. 574. [2] The petitioners' next contention is that this mill is not within R. L. c. 196, § 1, because none of the electricity there generated is sold in Franklin county. This contention STONE SAME. RE Judicial Court of Massachusetts. Hampden. Oct. 19, 1916.) 1. DEEDS 171(1) CONSTRUCTION STRICTIONS-GENERAL SCHEME. cluded in a tract, in proximity to the grounds Where restrictions were placed upon lots inof a United States Arsenal, which would probably perpetually remain open and be carefully cared for, the provisions that no barn shall be nearer to the street than six rods, that but one dwelling shall be erected on any one lot, and that none shall be erected nearer to the street than twenty feet at a cost of less than lows: "Whereas it hath been found by experience 1 The recital of Prov. L. 1713-14, c. 15, is as folthat, when some persons in this province have been at great cost and expense, for building of mills serviceable for the publick good, and benefit of the town, or considerable neighbourhood, in or near to which they have been erected, that, in raising a suitable head of water for that service, it hath sometimes so hapned that some small quantity of lands or meadows have been thereby flowed and damnified, not belonging to the owner or owners of such mill or mills, whereby several controversies and lawsuits have arisen; for prevention whereof for the future." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |