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vice about amputation evidence of domineering, Action of tort by Charles H. Wilson against conduct, causing delay in amputation resulting George J. Daniels to recover for personal inin loss of arm.

juries sustained when plaintiff's hand was 3. Evidence @m470—Nonexpert's opinion as to caught in a corn husker. Verdict for plain

ability of injured employee to work on farm tiff for $5,000. Submitted on defendant's held incompetent, as calling for common exceptions. Exceptions sustained. knowledge and experience.

C. E. Tupper, of Worcester (W. A. Garrity, Question to nonexpert as to what his opin- of Worcester, on the brief), , for plaintiff. ion would be as to injured employee's ability

J. A. Crotty, of Worcester, for defendant. to work with any decree of profit or advantage on a farm held inadmissible, as calling for matter of common knowledge and experience. WAIT, J. The plaintiff's hand was caught 4. Master and servant om 129(2)_That partic

in the revolving rolls of a corn-husking maular accident could not have been anticipated chine, at which he was working for the dedoes not prevent liability.

fendant. The declaration charged negligence That no one would have anticipated or ex- of the employer in furnishing a defective mapected accident, which actually bappened from chine; and in putting the plaintiff at work lack of appliance to stop husking machine or in a dangerous place. The answer set up failure to repair, did not relieve employer from contributory negligence and assumption of liability if his conduct was such as a reason- risk. It was agreed that the plaintiff was a ably prudent and careful man would have farm laborer, and that his only rights are at avoided.

common law. 5. Master and servant 286(10, 40)-Negli The plaintiff, when hurt, was feeding corn.

gence as to employee on husking machine held stalks to the husker. He stood upon a small for jury.

platform at the side of the machine, placed Whether husking machine, in which farm the stalks of corn, tips forward, in front of employee was injured, was reasonably safe and him upon a large platform 32 inches higher convenient, and whether master used care of than that on which he stood, and pushed reasonably prudent man in allowing employee them along this surface and across an opento work on it without sufficieni instructions, ing 8 inches wide between the rolls and the held for jury.

platform, toward two rolls at his left. The 6. Master and servant 288(5)-Farm em- rolls revolved toward each other, seized the

ployee's assumption of risk of injury in op- stalks, and dragged them between the rolls, erating corn husker held for jury.

knocking off the ears of corn into the 8. Though there was nothing about condition inch opening. The crushed stalks fell upon of corn husker which was not open to any one another platform behind the rolls. The ears who examined it, and clearly intelligible to op- of corn fell through the opening, struck uperator who had run it once, and there was no new danger in its operation with wet and icy cline below the feeding platform, and, as

on four longer rolls which were set at an incornstalks, question of operator's assumption of risk held for jury, where he was assured they slid down, were stripped of their husks inachine was not dangerous.

by the action of projections set on the sur.

face of these inclined rolls. The drive shaft 7. Master and servant O217(1)-Knowledge passed through the machine under the feedessential to assumption of risk.

ing table. The pulley was on the side away There is no assumption of risks, unless em- from the operator in front and to his left, ployee fully comprehends defects and imperfec- while a gear on the end of the shaft on tions, and realizes nature and extent of danger. the side toward the operator and at his left, 8. Master and servant E265(13)—Burden of meshed with a larger wheel which controlled proving assumption of risk on master.

the upper rolls. When first set up there was Burden of proof that risks are assumed

a clutch at the left of the operator at the rests on master.

end of the drive shaft by which the wheel

on the end of the roller shaft could be thrown 9. Master and servant Em289(19)-Contribu- out of gear with the wheel on the drive shaft. tory negligence of operator of husking ma

This clutch was operated by hand, or by a chine held for jury.

pedal. By using it, the rolls could quickly Broken clutch designed to stop busking ma

be stopped. Power was supplied through a chine had no causal connection with accident to operator, whose hand was caught in rollers; 5-inch belt connected with a tractor which but, where he was assured machine could be stood about twenty feet away from the huskstopped by clutch, question whether he was ing machine to the right of the operator, contributorily negligent in placing his hand too and somewhat behind him when he faced close to rolls, in not bracing himself against the rollers. The husking machine weighed jump of machine, or in not examining it for about 1,100 pounds; the tractor, 2 or 3 tons. possible defect, properly held for jury. The machine was steadied against the drag

of the tractor by stakes driven into the Exceptions from Superior Court, Worcester ground. There was evidence that, when the County; W. A. Burns, Judge.

rolls were clogged by stalks, the machine

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he

(146 N.E.) would jump, and that at times the belt from [1-3] In the course of the trial, the dethe tractor came off the pulley as a result fendant duly excepted to the admission of of the shifting in position accompanying a testimony from the wife of the plaintiff, that "jump." When purchased, in September, at her home on the afternoon of the accident, 1919, about two months before the accident, the defendant, returning from seeing her husit was new, and of a standard make. The band at the hospital, told her that he was jury took a view of the husking machine. sorry he put her husband on the machine,

The evidence was conflicting in regard to that he thought the machine was all right, the number of times the plaintiff had op- but it wasn't," and that "he would take care erated the machine; but he testified that he of him and look after him"; to the admishad run it only twice. On the first of these sion of testimony from her that the defendoccasions, a glove which he was wearing ant, before leaving the house, said “not to caught in the rolls and his hand was being have his hand taken off, and dragged between them when he stepped on would be home in a couple of days"; and the pedal of the clutch, stopped the rolls, to the admission of the following testimony and escaped injury. Exactly what happened from a brother-in-law of the plaintiff: on the second occasion is not clear. The

"Q. From your intimate knowledge and actestimony of the plaintiff was not entirely quaintance of him, what would you say with consistent, but, beyond dispute, his gloved reference, basing it upon your intimate knowlhand was caught, drawn in and crushed by edge and acquaintance of him, and his condithe rolls as he was pushing stalks up to them. tion, your opinion would be as to his ability to The clutch appliance had been broken at work with any degree of profit or advantage some time between these two occasions, and on a farm ? A. No." on the day of the accident did not function.

The knowledge of the defendant in regard The plaintiff testified that when he knew the to the condition of the machine was material, band was caught he applied the pedal, but and the testimony relating thereto was prop it did not stop the rolls as it had done the erly admitted. The rest of the testimony was week before. The rolls, after the hand was inadmissible. The statement of the defenddrawn in, were stopped either by removing ant as to his intended conduct toward the the belt from the pulley, or by shutting off plaintiff, and his advice as to the amputation the power at the tractor.

of the hand were both incompetent and inThe plaintiff a man 52 years old, had admissible. We are satisfied that they were worked 2 years as a teamster upon the farm prejudicial, as the brief for the plaintiff and and was not familiar with machinery. The the oral argument addressed to us show that defendant was well acquainted with machin- the first was used before the jury as a basis ery. There was no dispute that he had been of argument of admitted liability, and the informed of the breaking of the clutch, and second as evidence of dictatorial and domwas ignorant whether it had been repaired, ineering conduct on the part of the defendant though he had ordered the repair. There leading to a delay in amputation which rewas evidence which, if believed, would have sulted in the loss of the arm rather than of warranted the jury in finding that on the the hand. Both are illegitimate and harmmorning of the injury the plaintiff told the ful. The question to the plaintiff's brother. defendant that he did not wish to run the in-law did not ask a description of his work, husker because it was dangerous; that he from which jurors could decide upon his cawas assured by the defendant that it was pacity. The question asked, and obtained, safe; that be, the defendant, had run the the opinion of one not a physician or exmachine and knew that it was all right and pert upon a matter of fact within the comthere was no danger; that “all he had to

mon knowledge and experience of the jurors. do was to put his foot on the brake and it Such opinion is not admissible. would stop in a second”; and that the plain

[4] The defendant requested that the jury tiff went on, after a threat of discharge,

be instructed as follows: because he did not wish to lose his job as "The lack of an appliance used to stop the teamster when winter was coming on. The machine, or the failure to repair such appliance, jury could have found that, as the plaintiff does not make the defendant liable unless a was pushing stalks toward the rolls, they reasonably prudent man in the same circumclogged, the machine jumped from the strain

stances ought to anticipate and expect that

such lack or failure would result in this, or a on the belt, and the plaintiff's hand was

similar, accident. joggled toward the rolls, which, owing to

"The plaintiff cannot recover unless he proves the broken clutch, could not be stopped in that the defendant did not act as a reasonably time to save the hand from being drawn be- prudent man would have acted under the cirtween them. The plaintiff testified that he cumstances, and that the defendant should have had no occasion to use the pedal between the reasonably expected that his failure to so act time he went to work on the husker, about would probably result in this accident." half past 9 or 10 o'clock, and the time his hand was caught, a few minutes before noon, The defendant excepted to the denial of and that he made no examination of the these requests. They were denied properly. clutch.

The substance of the requests was dealt with

in the charge sufficiently favorably to the , it has been held that there was no negligence defendant. The anticipation or expectation in failing to warn of danger and that the of a particular evil result from a course of employee assumed the risks of operation, action is not a necessary element of careless- Burke v. Davis, 191 Mass. 20, 76 N. E. 1039, ness. If the conduct is such as the reason- | 4 L. R. A. (N. S.) 971, 114 Am. St. Rep. 591; ably prudent and careful man would avoid, De Angelo v. Boston Elevated Railway, 209 it is none the less careless because no one Mass. 58, 95 N. E. 102; Miller v. Mead-Mor. would anticipate or expect the happening rison Mfg. Co., 214 Mass. 75, 100 N. E. 1087. which actually occurs. The instructions In the case before us, however, there is evicould not be given in the form requested, dence, the credibility of which is not for us, and the exceptions to the refusal to give of an assurance from the employer who unthem are overruled.

derstood machines to the employee who [5] At the close of the evidence, the de- might be found ignorant in regard to them, fendant moved that a verdict be directed for that there was no danger and that all was the defendant on the ground that upon all right. the evidence the plaintiff was not entitled to [7,8] The law is clear that there is no recover. The judge denied the motion and assumption of risks unless the employee submitted the case to the jury, which found fully comprehends the defects and imperfecfor the plaintiff.

tions, and realizes the nature and extent of Whether the husking machine was reason the danger. O'Toole v. Pruyn, 201 Mass. ably safe and convenient in view of its con- 126, 87 N. E. 608. In view of the occupastruction, the degree of its stability, the tion of the plaintiff and the general ignor. broken condition of the clutch, the method of ance of machinery which the jury could atapplication of power, and the tendency to tribute to him, it was a question for the jump, if any, was for the jury. So, too, jury, whether, if he received the assurance was the question whether the defendant used from his employer to which he testified, he the care of a reasonably prudent and care did appreciate the dangers attending the ful man in allowing the plaintiff to work up-operation of the husker with its broken on it without instruction, or with only such clutch, and so should be held to have asinstruction as they might find, from the evi

sumed the risks. Filosi v. Boston Woven dence, was given.

Hose & Rubber Co., 214 Mass. 408, 101 N. E. [6] More difficult questions are presented 969. The burden of proving that the risks whether, as matter of law, the plaintiff did not assume all the risks which actually at- were assumed rests upon the defendant, and tended operating the machine, and whether rarely can the court rule that it has been

sustained. he did not himself contribute to his injury

Griffin v. Joseph Ross Corpora. by his own carelessness. That he objected tion, 204 Mass. 477, 90 N. E. 926; Oswald v. to being put at work on the husker, and Donohue, 215 Mass. 574, 102 N. E. 925. went on only to avoid discharge, is not [9] Whether the plaintiff by his own careconclusive that he did not assume the risks. | lessness .contributed to his injury was likeLamson v. American Axe & Tool. Co., 177 | wise for the jury. Griffin v. Joseph Ross Mass. 144, 58 N. E. 585, 83 Am. St. Rep. 267. Corporation, supra. The judge was right in No claim was made that he was not intelli- instructing the jury that the broken clutch gent. The indisputable evidence shows that had no causal connection with the accident. he must have known and appreciated that Whatever impelled the plaintiff's hand there was danger that his hand might be toward the rollers, it was not the broken caught on the rolls. It was perfectly obvi- clutch. Yet the jury could find that relying ous; and only a week before he had escaped upon the defendant's assurance to him in such injury solely by using the clutch to regard to the efficacy of the pedal to throw throw the rolls out of gear. The machine, its the clutch and stop the rolls, the plaintiff location and mode of operation were known in the performance of his duty might propto him. There was testimony which he did erly place his hands closer to the rollers, or not deny that he was running the husker at brace himself less strongly against a posthe time the clutch was broken; but, if this sible jump than he would have been justified was not believed, it is manifest that a slight in doing had he appreciated the real condiexamination would have shown that it had tions, or in examining the machine, look less been broken and had not been repaired. carefully for a possible unremedied defect. There was nothing about the condition of the Although close, the questions both on asmachine on the day of the accident which sumption of risk and contributory negligence was not open to any one who examined it of the plaintiff were for the jury. The exand clearly intelligible to one who had run ception to the refusal to direct a verdict it, though only once. No new danger was for the defendant is overruled. created if the cornstalks were wet and icy on Because of the errors in the admission ot the day of the injury instead of dry as on the evidence, the order must be: day of the escape. In similar circumstances, Exceptions sustained.

as

(146 N.E.)

of the probate court in each case ordering CLOUGH et al. v. CROMWELL et al. sale of property at public auction, respond(two cases).

ents appeal. Reversed and remanded. CARMICHAEL V. SAME (two cases). T. F. O'Brien, of New Bedford (S. E. Bent(Supreme Judicial Court of Massachusetts. ley, of New Bedford, on the brief), for, apDukes. Nov. 28, 1924.)

pellants.

G. M. Poland, of Boston (A. W. Davis, of 1. Partition 77(4)–Testimony heard by Edgartown, on the brief), for appellees. commissioners is not part of record, and is pot considered by judge.

SANDERSON, J. These are two petitions Testimony heard by commissioners is not part of record, and should not be considered for the partition of land in West Tisbury by judge in deciding whether partition should and Edgartown on the southerly shore of be by sale.

Martha's Vineyard. The cases come up by 2. Partition Om79–Proceedings before "com- appeal from a decree in each case ordering missioners” not subject to rules applicable to in the first petition, filed April 28, 1922,

a sale of the property at public auction. trials. Proceedings before commissioners appointed seven

individuals joined petitioners to make partition are not subject to rules of against three respondents for a partition of law applicable to trial of causes in court; "com- all the land in question. Later, when it apmissioners” being in nature of arbitrators. peared that one Look, not a party to the

(Ed. Note. For other definitions, see Worde petition, was a part owner of two of the lots and Phrases, First and Second Series, Commis- described therein, an amendment was filed sioner.]

eliminating them from the first petition, and 3. Partition Om79_Not part of commissioners' a second petition was brought for the parti

duty to decide that partition should be made tion of those two lots. For convenience the by sale,

first may be referred to as the Clough Case ; It is not part of commissioners' duty to de- the second as the Carmichael Case. The cide that partition should be made by sale au- title and fractional interests of the parties thorized under Pub. St. c. 178, $ 65, and G. L. as tenants in common were not in dispute. c. 241, § 31

The seven petitioners in the Clough Case own 4. Partition Om 79-Commissioners must re. collectively seven-eighths of the land and port impossibility of partition to court. the respondents Cromwell own collectively

It is in accordance with spirit of G. L. c. one-eighth. In the Carmichael Case the pe241, § 31, and compliance with requirement titioner Carmichael and the six persons asthereof, that commissioners appointed to ap-sociated with him who were petitioners in praise land and make partition report impos- the first case own seven thirty-seconds in sibility of partition to court.

one parcel and seven-sixteenths in the order ; 5. Partition Om77 (4)—Burden of proof that the petitioner Look owns three-quarters in

land cannot be advantageously divided held one parcel and one-half in the other; and not to be on either party.

the respondents Cromwell own collectively Burden of proof that land cannot be ad- one thirty-second in one and one-sixteenth vantageously divided is not on either party, in the other parcel. The premises described though court must so find from preponderance in both petitions taken together form a lot of evidence; allegation by petitioners that land somewhat triangular in shape, bounded cannot be advantageously divided not being re- southerly by the sea for about a mile and a quired by G. L. c. 241, 8 6.

half; easterly by a great pond, called Oyster 6. Partition Cm77(1)-That fair division of pond, for about a mile and a half; north

land would not damage profits from whole not westerly by an irregular line partly running conclusive that it would not be disadvantage- across a great pond.called Watcha pond and ous.

partly upon another great pond called NaThat fair division of land would not seri- homans pond. A plan of the land, which ously damage profits from whole, so long as divided the property into several lots, was respective owners used their part in reason- used at the trial and at the argument before able manner, does not preclude finding that this court. such division would be disadvantageous.

June 5, 1923, an interlocutory decree was 7. Partition 77(1)-Whether property can entered in each case that partition of the

be advantageously divided is question of fact real estate be made and that three commisfor trial judge.

sioners be appointed to make partition acWhether land can be advantageously divid-cording to the rights of the parties interested is question of fact for trial judge, deter- ed. It appeared from the decrees that the mined on all competent evidence.

petitioners in the Clough Case requested that

their respective shares in all the land be set Appeal from Probate Court, Dukes County. off to them to hold as tenants in common,

Separate petitions by Charles A. Clough and that the respondents Cromwell made a and others against Emma F. Cromwell and similar request in regard to their interests. others for partition of land. From a decree A warrant was issued to the commissioners

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es.

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directing them, after being sworn, to give testimony and proceedings before the comnotice to persons interested of the time and missioners was a part of the record of the place appointed for making partition; to ap case to be considered by him. praise all of the real estate; to make parti [2] Proceedings before commissioners are tion thereof according to law; and to make not subject to the rules of law applicable to return of their doings. The commissioners the trial of causes in court. Commissioners were duly sworn, gave notice as required by are in the nature of arbitrators. They "were the warrant, and appraised all the real es- selected by the court as competent of themtate. These valuations are not in question. selves to make the partition, and it was for A report signed by two of the commissioners them to determine what aid of witnesses stated:

they would accept in doing it.” They may A full report of all testimony we permit parties to state their preferences as herewith inclose.

We have visited the to what division should be made and to give premises,

have tried many ways to their reasons therefor and may exclude opin. bring all parties concerned to some agreement ions of witnesses as to the effect of any parwhereby we could make a unanimous report ticular division upon either party. They of some definite agreement between petitioners were not in law obliged to hear any witnessand respondents, but have failed to do so, the majority of the commission find the land de- N. E. 84. It was stated in Brown v. Bulkley,

Hall v.: Hall, 152 Mass. 136, 138, 140, 25 scribed in the foregoing warrant cannot be partitioned, without great inconvenience to other 11 Cush. (Mass.) 168, that: owners and great depreciation in value to the whole [and] recommend that the property de- their report, are such as have relation to the

"The only questions which can arise upon scribed in the foregoing warrant be sold at regularity of their own proceedings. If they public auction, and the proceeds be divided ac- have poť conformed in all respects to the dicording to each owner's interest."

rections given them, their report may be set aside.

But if there has been no irThis report was assented to by all the pe- regularity, and if they have divided the estate titioners in the Clough Case. The third com- according to the requirements of the interlocumissioner filed a “minority report” assented tory judgment, it will be accepted and confirmed to by the respondents Cromwell. In it he by the court." concurred with the report signed by the other two in so far as it related to appraised Upon a petition for a writ of certiorari value of the property and individual shares, against county commissioners who had made and the items of expense, and dissented from a finding and order relating to an abatement all the rest of the report. In this “minority of a tax, it was held to be no part of the report” the commissioner stated in detail county commissioners' return to set forth a his reasons for believing that the property report of the evidence on which they based could be divided and suggested a plan there their findings. Such a report "would have for. Majority and minority reports of sim- been an unnecessary encumbrance of the recilar purport were filed in the Carmichael ord." , Westport v, County Commissioners Case. The cases then came on for hearing in of Bristol, 246 Mass. 556, 141 N. E. 591. the probate court where witnesses, both for Even in the case of masters, the evidence is the petitioners and the respondents, testified not to be reported without an order by the concerning the property. The respondents court. Aronson v. Orlov, 228 Mass. 1, 9, 116 Cromwell took exceptions to the admission N. E. 951. The testimony heard by the comof certain evidence, to the refusal of the missioners is not a part of the record in the court to rule as requested, and to rulings case and should not be considered by the made by the court. Thereafter the court en- judge in deciding whether the partition tered a decree in each case ordering parti- should be by sale. The responsibility of detion among the tenants in common named in ciding whether real estate is to be divided the petition, in the proportions therein stat- or sold is upon the probate court. The deed, and appointing one person commissioner cision must be made upon legal evidence to to make partition, directing him to make. which parties have a right to object. sale and conveyance of all the land at pub- Eveleth v. Crouch, 15 Mass. 307, Sullings v. lic auction for cash and to distribute the Richmond, 5 Allen (Mass.) 187, 192, 81 Am. net proceeds in such manner as to make the Dec. 742; Hastings v. Rider, 99 Mass. 622, partition just and equal. The court in com- | 625 ; In re Mackintosh, Petitioner, 246 Mass. pliance with a request by the 'respondents 482, 141 N. E. 496. The judge ruled, submake a report of material facts and included ject to the appellants' exception, that testitherein and made a part of the report the mony filed by the commissioners upon which evidence taken at the hearing with the rul- they based their findings is a part of the ings of the court in connection therewith. record of the case, "not as a part of the evi. The questions raised, and now relied upon dence as introduced at this hearing, part of by the appellants, will be considered in the the records of the case as filed by the comorder in which they are stated in their brief. missioners. In other words, it is part of

[1] The first ground of appeal is that the their report.” At the close of the hearing judge erred in ruling that the transcript of counsel for the appellants stated:

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