vice about amputation evidence of domineering conduct, causing delay in amputation resulting in loss of arm.

3. Evidence 470-Nonexpert's opinion as to ability of injured employee to work on farm held incompetent, as calling for common knowledge and experience.

Question to nonexpert as to what his opinion would be as to injured employee's ability to work with any decree of profit or advantage on a farm held inadmissible, as calling for matter of common knowledge and experience.

4. Master and servant 129(2)—That particular accident could not have been anticipated does not prevent liability.

That no one would have anticipated or expected accident, which actually happened from lack of appliance to stop husking machine or failure to repair, did not relieve employer from liability if his conduct was such as a reasonably prudent and careful man would have avoided.

5. Master and servant 286(10, 40)-Negligence as to employee on husking machine held for jury.

Whether husking machine, in which farm employee was injured, was reasonably safe and convenient, and whether master used care of reasonably prudent man in allowing employee to work on it without sufficient instructions, held for jury.

6. Master and servant 288 (5)-Farm employee's assumption of risk of injury in operating corn husker held for jury.

Though there was nothing about condition of corn husker which was not open to any one who examined it, and clearly intelligible to operator who had run it once, and there was no

new danger in its operation with wet and icy
cornstalks, question of operator's assumption
of risk held for jury, where he was assured
machine was not dangerous.
7. Master and servant

217(1)-Knowledge

essential to assumption of risk.

There is no assumption of risks, unless employee fully comprehends defects and imperfections, and realizes nature and extent of danger. 8. Master and servant 265(13)-Burden of proving assumption of risk on master.

Burden of proof that risks are assumed

rests on master.

9. Master and servant 289 (19)-Contributory negligence of operator of husking machine held for jury.

Broken clutch designed to stop husking machine had no causal connection with accident to operator, whose hand was caught in rollers; but, where he was assured machine could be stopped by clutch, question whether he was contributorily negligent in placing his hand too close to rolls, in not bracing himself against jump of machine, or in not examining it for possible defect, properly held for jury.

Action of tort by Charles H. Wilson against George J. Daniels to recover for personal injuries sustained when plaintiff's hand was caught in a corn husker. Verdict for plaintiff for $5,000. Submitted on defendant's exceptions. Exceptions sustained.

C. E. Tupper, of Worcester (W. A. Garrity, of Worcester, on the brief),, for plaintiff. J. A. Crotty, of Worcester, for defendant.

WAIT, J. The plaintiff's hand was caught in the revolving rolls of a corn-husking machine, at which he was working for the defendant. The declaration charged negligence of the employer in furnishing a defective machine; and in putting the plaintiff at work in a dangerous place. The answer set up contributory negligence and assumption of risk. It was agreed that the plaintiff was a farm laborer, and that his only rights are at common law.

The plaintiff, when hurt, was feeding cornstalks to the husker. He stood upon a small platform at the side of the machine, placed the stalks of corn, tips forward, in front of him upon a large platform 32 inches higher than that on which he stood, and pushed them along this surface and across an opening 8 inches wide between the rolls and the platform, toward two rolls at his left. The rolls revolved toward each other, seized the stalks, and dragged them between the rolls, knocking off the ears of corn into the 8inch opening. The crushed stalks fell upon another platform behind the rolls. The ears of corn fell through the opening, struck upon four longer rolls which were set at an in

cline below the feeding platform, and, as they slid down, were stripped of their husks by the action of projections set on the surface of these inclined rolls. The drive shaft passed through the machine under the feeding table. The pulley was on the side away from the operator in front and to his left, while a gear on the end of the shaft on the side toward the operator and at his left, meshed with a larger wheel which controlled the upper rolls. When first set up there was a clutch at the left of the operator at the end of the drive shaft by which the wheel on the end of the roller shaft could be thrown out of gear with the wheel on the drive shaft. This clutch was operated by hand, or by a pedal. By using it, the rolls could quickly be stopped. Power was supplied through a 5-inch belt connected with a tractor which stood about twenty feet away from the husking machine to the right of the operator, and somewhat behind him when he faced the rollers. The husking machine weighed about 1,100 pounds; the tractor, 2 or 3 tons. 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

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.)

would jump, and that at times the belt from the tractor came off the pulley as a result of the shifting in position accompanying a "jump." When purchased, in September, 1919, about two months before the accident, it was new, and of a standard make. The jury took a view of the husking machine. The evidence was conflicting in regard to the number of times the plaintiff had operated the machine; but he testified that he had run it only twice. On the first of these occasions, a glove which he was wearing caught in the rolls and his hand was being dragged between them when he stepped on the pedal of the clutch, stopped the rolls, and escaped injury. Exactly what happened on the second occasion is not clear. The testimony of the plaintiff was not entirely consistent, but, beyond dispute, his gloved hand was caught, drawn in and crushed by the rolls as he was pushing stalks up to them. The clutch appliance had been broken at some time between these two occasions, and on the day of the accident did not function. The plaintiff testified that when he knew the hand was caught he applied the pedal, but it did not stop the rolls as it had done the week before. The rolls, after the hand was drawn in, were stopped either by removing the belt from the pulley, or by shutting off the power at the tractor.

There

The plaintiff a man 52 years old, had worked 2 years as a teamster upon the farm and was not familiar with machinery. The defendant was well acquainted with machinery. There was no dispute that he had been informed of the breaking of the clutch, and was ignorant whether it had been repaired, though he had ordered the repair. was evidence which, if believed, would have warranted the jury in finding that on the morning of the injury the plaintiff told the defendant that he did not wish to run the husker because it was dangerous; that he was assured by the defendant that it was safe; that he, the defendant, had run the machine and knew that it was all right and there was no danger; that "all he had to do was to put his foot on the brake and it would stop in a second"; and that the plaintiff went on, after a threat of discharge, because he did not wish to lose his job as teamster when winter was coming on. The jury could have found that, as the plaintiff was pushing stalks toward the rolls, they clogged, the machine jumped from the strain on the belt, and the plaintiff's hand was joggled toward the rolls, which, owing to the broken clutch, could not be stopped in time to save the hand from being drawn between them. The plaintiff testified that he had no occasion to use the pedal between the time he went to work on the husker, about half past 9 or 10 o'clock, and the time his hand was caught, a few minutes before noon, and that he made no examination of the clutch.

[1-3] In the course of the trial, the defendant duly excepted to the admission of testimony from the wife of the plaintiff, that at her home on the afternoon of the accident, the defendant, returning from seeing her husband at the hospital, told her that he was sorry he put her husband on the machine, "that he thought the machine was all right, but it wasn't," and that "he would take care of him and look after him"; to the admission of testimony from her that the defendant, before leaving the house, said "not to have his hand taken off, and he would be home in a couple of days"; and to the admission of the following testimony from a brother-in-law of the plaintiff:

*

"Q. From your intimate knowledge and acquaintance of him, what would you say with reference, basing it upon your intimate knowledge and acquaintance of him, and his condition, your opinion would be as to his ability to work with any degree of profit or advantage on a farm? A. No."

The knowledge of the defendant in regard to the condition of the machine was material, and the testimony relating thereto was prop erly admitted. The rest of the testimony was inadmissible. The statement of the defendant as to his intended conduct toward the plaintiff, and his advice as to the amputation of the hand were both incompetent and inadmissible. We are satisfied that they were prejudicial, as the brief for the plaintiff and the oral argument addressed to us show that the first was used before the jury as a basis of argument of admitted liability, and the second as evidence of dictatorial and domineering conduct on the part of the defendant leading to a delay in amputation which resulted in the loss of the arm rather than of the hand. Both are illegitimate and harmful. The question to the plaintiff's brotherin-law did not ask a description of his work, from which jurors could decide upon his capacity. The question asked, and obtained, the opinion of one not a physician or expert upon a matter of fact within the common knowledge and experience of the jurors. Such opinion is not admissible.

[4] The defendant requested that the jury be instructed as follows:

"The lack of an appliance used to stop the machine, or the failure to repair such appliance, does not make the defendant liable unless a reasonably prudent man in the same circumstances ought to anticipate and expect that such lack or failure would result in this, or a similar, accident.

"The plaintiff cannot recover unless he proves that the defendant did not act as a reasonably prudent man would have acted under the circumstances, and that the defendant should have reasonably expected that his failure to so act would probably result in this accident."

The defendant excepted to the denial of these requests. They were denied properly. 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 employee assumed the risks of operation. Burke v. Davis, 191 Mass. 20, 76 N. E. 1039, 4 L. R. A. (N. S.) 971, 114 Am. St. Rep. 591; De Angelo v. Boston Elevated Railway, 209 Mass. 58, 95 N. E. 102; Miller v. Mead-Morrison Mfg. Co., 214 Mass. 75, 100 N. E. 1087.

of a particular evil result from a course of action is not a necessary element of carelessness. If the conduct is such as the reasonably prudent and careful man would avoid, it is none the less careless because no one would anticipate or expect the happening which actually occurs. The instructions In the case before us, however, there is evicould not be given in the form requested, and the exceptions to the refusal to give them are overruled.

[5] At the close of the evidence, the defendant moved that a verdict be directed for the defendant on the ground that upon all the evidence the plaintiff was not entitled to recover. The judge denied the motion and submitted the case to the jury, which found for the plaintiff.

Whether the husking machine was reasonably safe and convenient in view of its construction, the degree of its stability, the broken condition of the clutch, the method of application of power, and the tendency to jump, if any, was for the jury. So, too, was the question whether the defendant used the care of a reasonably prudent and careful man in allowing the plaintiff to work upon it without instruction, or with only such instruction as they might find, from the evidence, was given.

dence, the credibility of which is not for us, of an assurance from the employer who understood machines to the employee who might be found ignorant in regard to them, that there was no danger and that all was right.

[7, 8] The law is clear that there is no assumption of risks unless the employee fully comprehends the defects and imperfections, and realizes the nature and extent of the danger O'Toole v. Pruyn, 201 Mass. 126, 87 N. E. 608. In view of the occupation of the plaintiff and the general ignorance of machinery which the jury could attribute to him, it was a question for the jury, whether, if he received the assurance from his employer to which he testified, he did appreciate the dangers attending the operation of the husker with its broken clutch, and so should be held to have as

sumed the risks. Filosi v. Boston Woven Hose & Rubber Co., 214 Mass. 408, 101 N. E. 969. The burden of proving that the risks were assumed rests upon the defendant, and rarely can the court rule that it has been sustained. Griffin v. Joseph Ross Corporation, 204 Mass. 477, 90 N. E. 926; Oswald v. Donohue, 215 Mass. 574, 102 N. E. 925.

[6] More difficult questions are presented whether, as matter of law, the plaintiff did not assume all the risks which actually attended operating the machine, and whether he did not himself contribute to his injury by his own carelessness. That he objected to being put at work on the husker, and 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 machine on the day of the accident which was not open to any one who examined it and clearly intelligible to one who had run it, though only once. No new danger was created if the cornstalks were wet and icy on the day of the injury instead of dry as on the day of the escape. In similar circumstances,

Although close, the questions both on assumption of risk and contributory negligence of the plaintiff were for the jury. The exception to the refusal to direct a verdict for the defendant is overruled.

Because of the errors in the admission of evidence, the order must be: Exceptions sustained.

CLOUGH et al. v. CROMWELL et al. (two cases).

(145 N.E.)

CARMICHAEL v. SAME (two cases). (Supreme Judicial Court of Massachusetts.

Dukes. Nov. 28, 1924.)

1. Partition 77(4)-Testimony heard by commissioners is not part of record, and is not considered by judge.

Testimony heard by commissioners is not part of record, and should not be considered by judge in deciding whether partition should be by sale.

2. Partition 79-Proceedings before "commissioners" not subject to rules applicable to

trials.

Proceedings before commissioners appointed to make partition are not subject to rules of law applicable to trial of causes in court; "commissioners" being in nature of arbitrators.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Commissioner.]

1 of the probate court in each case ordering sale of property at public auction, respondents appeal. Reversed and remanded.

T. F. O'Brien, of New Bedford (S. E. Bentley, of New Bedford, on the brief), for, appellants.

G. M. Poland, of Boston (A. W. Davis, of Edgartown, on the brief), for appellees.

SANDERSON, J. These are two petitions for the partition of land in West Tisbury and Edgartown on the southerly shore of Martha's Vineyard. The cases come up by appeal from a decree in each case ordering a sale of the property at public auction. In the first petition, filed April 28, 1922, individuals joined as seven petitioners against three respondents for a partition of all the land in question. Later, when it appeared that one Look, not a party to the petition, was a part owner of two of the lots described therein, an amendment was filed eliminating them from the first petition, and a second petition was brought for the partition of those two lots. For convenience the first may be referred to as the Clough Case; the second as the Carmichael Case. title and fractional interests of the parties as tenants in common were not in dispute. The seven petitioners in the Clough Case own collectively seven-eighths of the land and 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;

3. Partition 79-Not part of commissioners' duty to decide that partition should be made by sale.

It is not part of commissioners' duty to decide that partition should be made by sale authorized under Pub. St. c. 178, § 65, and G. L. c. 241, § 31.

4. Partition 79-Commissioners must report impossibility of partition to court.

The

5. Partition 77 (4)-Burden of proof that the petitioner Look owns three-quarters in land cannot be advantageously divided held not to be on either party.

one parcel and one-half in the other; and 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, § 6.

6. Partition 77(1)—That fair division of land would not damage profits from whole not conclusive that it would not be disadvantage

ous.

half; easterly by a great pond, called Oyster pond, for about a mile and a half; northwesterly by an irregular line partly running across a great pond called Watcha pond and 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. 77(1)—Whether property can be advantageously divided is question of fact for trial judge.

7. Partition

Whether land can be advantageously ed is question of fact for trial judge, mined on all competent evidence.

June 5, 1923, an interlocutory decree was entered in each case that partition of the real estate be made and that three commissioners be appointed to make partition acdivid-cording to the rights of the parties interestdeter-ed. It appeared from the decrees that the

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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes