(114 Me. 205) VARNEY V. McCLUSKEY. Dec. 7, RECORD The agreement of parties as to the character of written evidence cannot be considered in not in the bill of exceptions or report of the evithe place of the evidence objected to, which was dence. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2958-2963; Dec. Dig. 714.] 2. EVIDENCE ARTICLES. 142-VALUE-OTHER SIMILAB ed, both temporary and permanently, to wind ↑ of the defendant company, but also the spirit up its affairs. The answer and replication of the whole transaction as manifested by were duly filed, and the matter was heard the attitude of the officers and majority of before a justice of the Supreme Court in the stockholders toward the life or death of chambers, and after a full hearing a decree the defendant corporation. was filed sustaining the bill of the plaintiffs, Appeal denied, with additional costs. to which an appeal was taken upon which the case is now being heard. Although the sitting justice filed no finding of facts, the filing of the decree sustaining the bill and appointing a receiver is ipso facto a finding of fact in favor of the plaintiffs upon some or all of the allegations in their bill. The only question, therefore, presented to us upon the appeal is whether there was any evidence which warranted the presiding justice in making a decree in favor of the plaintiffs. The plaintiffs' bill contains allegations that the corporation should be dissolved because by the gross mismanagement of its affairs it was in imminent danger of insolvency, and because there was danger that the estate and effects would be wasted, and because it had ceased to do business. From the evidence of Harry G. Gerrish, secretary and treasurer of the defendant corporation, and of Charles T. Birchard, who was a former officer and manager of the defendant company, we think the court was authorized to draw the inference that one or all of the three allegations alluded to was sustained. It appears by the bill that the vital and principal part of the property of the defendant corporation was what was known as the Lady Bryon group of claims. Without this group as a part of its workable property, the defendant corporation had left no mining property worth working. It further appears, and is admitted, that the Lady Bryon group of claims on the 23d day of May, 1914, was sold and transferred to pay an indebtedness to Charles T. Birchard, and was later transferred by him to another corporation formed for the purpose of working this group. After the transfer of the Lady Bryon group to Birchard all the apparatus and machinery for working the defendant corporation was moved, and after that time no business was transacted by it. Mr. Gerrish said in answer to a question: "There has been no work done at the Utah Mining, Milling & Transportation Company property since the Lady Bryon claim was transferred to Mr. Birchard." He was further asked: "As you understand, as treasurer of this defendant corporation, at the time or soon after the Lady Bryon group was bought, everything was moved the machinery, equipment, buildings to the Lady Bryon group of claims." Defendant purchased seed potatoes from plaintiff under an agreement providing that on demand defendant should load 85 per cent. of place ready for shipment, and that plaintiff the potatoes so grown on cars at a specified would pay the then market price of certain other potatoes, and in addition 50 cents per barrel extra. Plaintiff asserted defendant breached his contract, and sought in assumpsit to recover damages. The evidence tended to show that the price which plaintiff agreed to pay was considerably less than the price of defendant's po tatoes at the time of the breach. Held, that evidence of the value of potatoes of the kind raised by defendant at a period some months after the breach was inadmissible. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 416-423; Dec. Dig. 142.] 3. APPEAL AND ERROR ~1050 HARMLESS ERROR. REVIEW In such case, where there was nothing to show on what theory the jury proceeded and they might have allowed damages on the basis of the inadmissible testimony, the receipt of such testimony was prejudicial, particularly as there was no showing plaintiff furnished cars for shipment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1068, 1069, 4153-4157, 4166; Dec. Dig. 1050.] Exceptions from Supreme Judicial Court, Aroostook County, at Law. Assumpsit by Alden J. Varney against Charles H. McCluskey. There was a verdict for plaintiff, and defendant excepted and moved for new trial. Exceptions sustained. Argued before SAVAGE, C. J., and SPEAR, KING, BIRD, HALEY, and HANSON, JJ. R. W. Shaw, of Houlton, for plaintiff. Hersey & Barnes, of Houlton, for defendant. BIRD, J. This action of assumpsit is brought to recover damages for the alleged His answer was, "Yes," and, further, that violation of a written agreement executed by nothing had been done to put in machinery the parties on the 15th day of May, 1913. or equipment since. Mr. Birchard fully con- By the agreement the defendant undertakes firms the testimony of Mr. Gerrish. Not only to purchase of the plaintiff 40 barrels of did the sitting Justice have before him this "New Snow" potatoes for the sum of $200, to direct and positive testimony, regarding the plant and cultivate the 40 barrels in a specifinancial condition and abandoned operation fied manner, to grow one prize acre for which he is to receive a prize, if certain results be accomplished, and "to dig and store said potatoes, so grown from said seed as aforesaid, and at any time between the digging of the same and the 1st day of April, 1914, at the option of said Varney, said McCluskey is to load 85 per cent. of said potatoes so grown, on cars at said Houlton, ready for shipment." The plaintiff, on his part, agrees to sell the 40 barrels of said potatoes, to pay the prize; "that when said 85 per cent. of said potatoes are so loaded for shipment by said McCluskey as aforesaid, he will pay said McCluskey the then market price of good merchantable Green Mountain table stock potatoes, and in addition to that price the sum of 50 cents per barrel extra. * * #99 The plea is the general issue, and, the jury rendering a verdict for the plaintiff for $367.93, the defendant filed a bill of exceptions and the general motion for new trial. It is agreed that 85 per cent. of the potatoes raised is 725 barrels, and that the market price of Green Mountain potatoes of the character mentioned in the contract on the last days of March, 1914, was $1.75 per barrel. [1] At the trial plaintiff offered a memorandum book containing an entry made by defendant under date of November 6, 1913, relative to the New Snow potatoes raised by him pursuant to the contract. Subject to objection, the entry was allowed to be read to the jury. The entry read does not appear in the printed record, and the book is not before us. It was agreed at the argument that the entry was in effect a recommendation of the potatoes produced. It was avowedly offered by plaintiff to "show my special market price of $5 per barrel." It does not appear from the bill of exceptions nor from the report of the evidence, which is made part of the bill, that the ruling was erroneous and prejudicial. The agreement of parties as to the character of written evidence is not to be received in place of the evidence itself, which was the subject of the ruling below. Without the writing, it cannot be determined if a ruling admitting or rejecting it be correct or not, nor if its admission or rejection were harmful to the excepting party. Jones v. Jones, 101 Me. 447, 450, 64 Atl. 815, 115 Am. St. Rep. 328; Doylestown Agricultural Co. v. Brackett, etc., Co., 109 Me. 301, 308, 84 Atl. 146; Drapeau v. Breton, 114 Me. - 95 Atl. 699. The exception is therefore over ruled. [2] One Haines, called by the plaintiff was permitted to testify, subject to objection and exceptions, that the market price of New Snow potatoes in May, 1914, was $5 per barrel, all the other witnesses called by plaintiff upon the question of damages having testified that the market price on the last days of March, 1914, was $5. The evi dence was inadmissible. South Gardiner Lumber Co. v. Bradstreet, 97 Me. 165, 170, 53 Atl. 1110. [3] It is impossible to determine how the jury reached its verdict. Whether it found, upon the one hand, that 140 barrels were ordered out and agreed to be delivered on the 30th of March, and fixed the damages at $2.50 per barrel, or upon the other hand, that 725 barrels were seasonably demanded and cars provided to receive them, and fixed the damages at 50 cents a barrel, in either case making an allowance for interest. If the former, the evidence admitted was prejudicial to defendant. If the latter, the jury having disregarded the theory of plaintiff as to damages as well as the testimony of his witnesses as to market price, it was not. But it should not be overlooked that if a seasonable demand was made on the 31st day of March there is no evidence that plaintiff furnished cars on that day for the reception of the potatoes, or that the parties agreed upon any substituted place or method of delivery. Such being the case we think the exceptions must be sustained. This conclusion renders it unnecessary to consider the motion for new trial. Exceptions sustained. 1. MASTER AND SERVANT 250-INJURIES TO SERVANT-EMPLOYERS' LIABILITY ACT. The Employers' Liability Act (Laws 1909, c. 258), which in section 8 declares that it shall driving logs, does not apply to injuries received not apply to injuries to persons engaged in by a servant of a paper mill at a time when he, with others, was engaged in blasting out a jam so as to float logs down a river, it appearing that the work was more than 100 miles away from the manufacturing plant; for in such case the servant was engaged in driving logs. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 805; Dec. Dig. 250.] 2. MASTER AND SERVANT 137-INJURIES TO SERVANT-NEGLIGENCE. break ice in log jams so as to permit them Where dynamite was customarily used to being driven downstream, a master is not negligent in furnishing log drivers with dynamite for the purpose. Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. 137.] [Ed. Note.-For other cases, see Master and 3. MASTER and Servant 217-INJURIES TO SERVANT-ASSUMPTION OF RISK. Where a foreman in charge of a logging crew suggested that he wanted a crew to go in a boat and break a jam, and plaintiff, though he saw the foreman put a box about half full of dynamite sticks already primed in front of the forward seat, and saw other dynamite placed in the boat, went along and was injured when a spark from a match held over the box by the foreman set off the dynamite, he cannot recover from the master, having assumed the risks of the injuries; they being obvious and ap-|ceived his orders from an assistant superinparent to a person of ordinary intelligence. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. 217.] 4. MASTER AND SERVANT 177-INJURIES TO SERVANT-FELLOW SERVANT RULE. A servant injured by the negligence of his fellow servant cannot maintain an action against his employer for such injuries unless the employer was negligent in the selection of the fellow servant. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 307, 352, 353; Dec. Dig. 177.] 5. MASTER AND SERVANT 189-INJURIES TO SERVANT-FELLOW SERVANT RULE. That a negligent servant was foreman does not change the fellow servant rule unless at that time he was representing the master. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dec. Dig. 189.] tendent of the whole drive on the stream. On the day the plaintiff was injured he and eight other men, including the foreman, went in a boat a short distance up Elm stream pond to release and bring down a quantity of logs that were being kept back or jammed by ice. Sticks of dynamite, primed and ready for use in breaking the jam, were taken in the boat in an open box. There was also a bag containing dynamite put into the boat. The plaintiff thus describes the accident that caused his injuries: "The foreman, until we got up where the logs were, opposite the logs, stood in the middle of the boat, between the second and third seats. When we got up where he wanted to stop, he gave orders for us to stop the boat, stepping over the second and forward seat, and began to light some of the dynamite, standing directly over the box. He lit a few sticks, and finally6. MASTER AND SERVANT 189, 216-INJU-I was seated back to him-I turned around, and RIES TO SERVANT-FELLOW SERVANT. see him light one stick, and saw the fire sputter, and the match drop in the box. I was looking on the ice every time he threw a stick, and I kind of turned my head towards the ice where he was in the habit of throwing the sticks, and the whole thing exploded." A foreman in charge of a logging crew, who, with other servants, went in a boat to break the jam that was holding back logs, is not representing the master, although he used the dynamite which was furnished for the purpose of breaking jams, and so members of the boat crew assume the risk of the foreman's negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448, 567573; Dec. Dig. 189, 216.] As a result of the explosion three of the men in the boat, including the foreman, were killed, and the plaintiff was badly injured. [1] 1. It is provided in the Employers' Liability Act, supra (section 8), that its provi Report from Supreme Judicial Court, sions shall not apply to injuries to persons Androscoggin County, at Law. Action by Joseph Gallant against the Great Northern Paper Company. On report. Judgment for defendant. Argued before SAVAGE, C. J., and SPEAR, KING, BIRD, HALEY, and HANSON, JJ. McGillicuddy & Morey, of Lewiston, for plaintiff. White & Carter, of Lewiston, for defendant. "engaged in cutting, hauling or driving logs." The plaintiff, however, contends that the work he was doing when injured should be regarded as a part of the defendant's process of manufacturing pulp and paper, since the logs he was working on were to be used ultimately by the defendant for that purpose at its pulp and paper mills, and therefore that he was not "driving logs" within the meaning of the exemption in the act. We think that contention is without merit. The work in which the plaintiff was engaged was being carried on more than 100 miles from the defendant's manufacturing plant. It was, in fact, the work of "driving logs," and we are unable to perceive any reason why The action was brought under the provi- it must not be so classified, regardless of sions of chapter 258 of the Public Laws of the ownership of the logs or the use to be 1909, known as the Employers' Liability Act. made of them. The language of the exempAn amendment was allowed, adding a count tion is explicit and unqualified. The meanat common law, with a stipulation of the ing of the expression "driving logs" is clear, parties to report the case to the law court and free from all uncertainty. It includes, upon the evidence and the special finding by we think, any actual log driving labor, rethe jury as to damages, that court to direct gardless of whether the employer is the ownsuch judgment as the law and evidence reer of the logs driven or not, and irrespecquire, both as to the defendant's liability tive of the use he may intend to make of the and as to the amount of damages. KING, J. Action to recover damages for personal injuries sustained by the plaintiff on May 12, 1914, while in the defendant's employ as a river driver. logs after they have been driven. We entertain no doubt, therefore, that the plaintiff was engaged in "driving logs" at the time of his injuries, and for that reason the Employers' Liability Act affords him no remedy therefor. The material facts are not in controversy. The plaintiff was working in a crew of river drivers on the defendant's drive on Elm stream, in the northern part of the state. Frank Crockett was the foreman of that crew. He worked with the other men in [2] 2. It remains to be considered if the driving, and his duty as foreman was to see plaintiff has established that he is entitled that the crew worked efficiently. He re- to recover under his count at common law. That the use of dynamite in log-driving, The risk of being injured by the negligence operations is a common practice is conceded. of a fellow servant is a risk that an employé It is customarily furnished by the proprie- assumes. And the fact that the negligent tors of such operations to be used by their servant is a foreman does not change the servants in breaking ice and log jams, and rule, unless at the time he was representing otherwise in the work of driving logs;, nor the master. Lawler v. Androscoggin R. R. was the plaintiff ignorant of the custom. He Co., 62 Me. 463, 16 Am. Rep. 492; Conley v. was an experienced log driver, and testified Portland, supra; Doughty v. Penobscot Log that he knew that dynamite was used by Driving Co., 76 Me. 143; Small v. Mfg. Co., river drivers to blow jams, and for any pur- 94 Me. 551, 48 Atl. 177. pose that such power is required. Moreover, last cited it was said: he knew that it was being used on that drive, and he had seen it used there. The defendant therefore cannot be held negligent because of the fact that it furnished dynamite for use on this drive; nor can the plaintiff claim want of information of that fact, for he knew it. [3-5] He alleges that the defendant failed to provide for him a safe place to work. The boat itself was not unsafe. It became so at the time of the accident by reason of the presence of the dynamite in it and the act of Mr. Crockett whereby it was exploded. Indeed, there can be no doubt from the evidence that this most unfortunate accident was the result of Mr. Crockett's carelessness. All the alleged acts of negligence of which the plaintiff complains, both of omission and commission, were the acts of Crockett. If it was negligence to take into the boat sticks of dynamite already primed and in an open box, that was the particular act of Crockett. He put them into the boat in that condition, according to the plaintiff's own testimony. If any particular one of those in the boat was more at fault than the others because they remained in the boat while the dynamite was being used, it was perhaps Mr. Crockett. But it does not appear that the plaintiff, or any of the others, even suggested that the sticks of dynamite should not be lighted while they were in the boat, although the plaintiff says "he had thrown out four or five charges at different times before the boat blew up." And certainly it was the carelessness of Mr. Crockett in using the dynamite that was the proximate cause of the explosion. And in the case "The test which determines the master's liability for the negligence of one employé whereby injury is caused to another is the nature of the duty that is being performed by the negligent servant at the time of the injury, and not the comparative grades of the two servants." Applying these well-settled rules to the facts disclosed in this case, it seems clear that the plaintiff is not entitled to recover. He testified that before he got into the boat he saw "the foreman put the box of dynamite, about half full or better, in front of the forward seat in the boat, up in the bow," that it was "primed," and "was exposed," and that the fuses were "about six or seven inches long," and that he also saw another man put a bag of dynamite into the boat, "front of the forward seat." He was not compelled, knowing those conditions, to go in the boat against his will. He went along with the others at the suggestion of Crockett that he wanted a boat's crew to go up and get the logs. In going with the others in the boat containing the exposed dynamite ready for use in breaking the jam, a fact which he knew, he must be held to have assumed the risks of danger to himself incident thereto, including the negligence of his fellow servants in the boat. [6] And we are constrained to the conclusion, according to the well-settled rules of law, that Mr. Crockett was the plaintiff's fellow servant at the time of the accident. All of the boat's crew were at the time engaged in the common work of driving logs, and to that end Crockett was using the dynamite which the defendant had furnished for such a use. In using it we think he did not stand in the place of the defendant as performing a duty owing from it to the plaintiff. The actual handling and using of dynamite in log-driving operations is not, we think, such a duty owing from the master to his servant as the law forbids the master to delegate to another so as to relieve himself from the consequences of the negligence of those handling and using it. It is the well-settled rule in this state that a servant of mature years and of common intelligence, when he engages to serve an employer, is conclusively held to assume the risks of danger which are known to him, as well as those which are incident to his work, and which are obvious and apparent to one of his intelligence and experience. Caven v. Granite Co., 99 Me. 278, 59 Atl. It is also alleged that Mr. Crockett was an 285; Coolbroth v. Maine Central R. R. Co., incompetent servant, and that the defendant 77 Me. 165. It is well settled, too, that a was negligent in employing him. But no servant who is injured by the negligence or proof was offered in support of that allegamisconduct of his fellow servant cannot tion. On the other hand, the defendant's maintain an action against his employer for superintendent testified that Mr. Crockett such injuries, unless the employer was negli- | was an experienced river driver and woodsgent in the selection of that fellow servant. man and had been in the defendant's employ Conley v. Portland, 78 Me. 217, 3 Atl. 658; for about two years. case do not in the opinion of the court sus-tablishes the contributory negligence of the tain the plaintiff's action, and therefore the plaintiff. entry must be: Judgment for defendant. EMERY v. WATERVILLE, F. & O. RY. CO. (Supreme Judicial Court of Maine. Dec. 10, 1915.) 1. STREET RAILROADS 112-ACTIONS FOR INJURIES BURDEN OF PROOF CONTRIBUTORY NEGLIGENCE. In an action for injuries to a person struck by a street car, be was bound to show that his negligence and want of due care did not contrib ute as a proximate cause of the injury. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. 88 227, 228; Dec. Dig. 112.] 2. STREET RAILROADS 98-LIABILITY FOR INJURIES-FAILURE TO LOOK FOR CARS. Where a person struck by a street car, before leaving the sidewalk looked and saw no car and then walked about 50 feet to the track and stepped on the track in front of an approaching car without again looking, his contributory negligence defeated a recovery, especially where he had been deaf for nearly his entire life and was called upon to exercise his unimpaired senses with a much higher degree of alertness than had he been normally equipped. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 204-208; Dec. Dig. 98.] 3. STREET RAILROADS 103-LIABILITY FOR INJURIES AVOIDABLE NOTWITHSTANDING CONTRIBUTORY NEGLIGENCE. Where a person, proceeding in a course parallel with and not far distant from a street car track, suddenly, and almost simultaneously with a car reaching him, turned toward the track and was struck by the car, the doctrine of last chance did not apply. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 219; Dec. Dig. 103.] On Motion from Superior Court, Kennebec County, at Law. Action by Thomas P. Emery against the Waterville, Fairfield & Oakland Railway Company. On motion by defendant for a new trial. Verdict set aside, and new trial granted. Argued before SAVAGE, C. J., and SPEAR, KING, BIRD, HALEY, and HANSON, JJ. Beane & Beane, of Hallowell, for plaintiff. Johnson & Perkins, of Waterville, for defendant. [1, 2] Whether or not the plaintiff has adduced sufficient evidence to warrant the jury in finding negligence on the part of defendant, we need not inquire, since it is the conclusion of the court that plaintiff has not shown, as he was bound to do, that his negligence and want of due care did not contribute as a proximate cause of his injury. He was attempting to cross the street occupied by the tracks of defendant, and, as he says, before leaving the sidewalk looked in the direction from which the alleged offending car was to come, and saw no car. The distance from the point where he states he left the sidewalk to the nearer rail of the track, in the course he states he pursued, was about 50 feet, and without again look. ing when he arrived near the rail, he continued his course and was struck by the car. He thus endeavored to cross the track in front of a moving car which could have been only a few feet from him. This case is not unlike Colomb v. Street Railway Co., 100 Me. 418, 420, 61 Atl. 898. Moreover, the plaintiff had been deaf for nearly his entire life, and was called upon to exercise his unimpaired senses with a much higher degree of alertness than had he been normally equipped. We must conclude, upon the evidence presented, that plaintiff, just before the collision, was proceeding in a course parallel with and not far distant from the track, and suddenly, almost simultaneously with the car reaching him, turned toward the track and was struck by the car. The following question and answer of the plaintiff, illustrate his mental attitude at the time: "Were you relying on the fact that the motorman would ring his gong? Was that the reason you did not look again?" "No, sir. I did not imagine the car was coming like that. I thought sure I could get across, and I didn't think any more about it; it was so far away, and I could not see the car, and I thought it was all right." [3] Nor does the court consider that the doctrine of "the last chance," invoked by plaintiff, applies. Moran v. Smith, 114 Me. 95 Atl. 272. See Steam Dredge No. I, (Putnam, J.) 134 Fed. 161, 165, 166, 67 C. C. A. 67, 69 L. R. A. 293. Verdict set aside. New trial granted. STATE v. WEBB. (89 Vt. 326) PER CURIAM. This is an action on the case by which the plaintiff seeks the recovery of damages from defendant corporation for injuries alleged to have been sustained through negligence of defendant in permitting one of its cars, while proceeding along (Supreme Court of Vermont. Chittenden. Oct. and upon one of the streets of Waterville, coming in contact with plaintiff. A verdict was rendered in favor of plaintiff, and the case is now before us upon the general motion of defendant for a new trial. 11, 1915.) 1. CRIMINAL LAW 977-CONVICTION-DECIDED QUESTIONS OF LAW MOTION TO PLACE ON RECORD-FAILURE TO MAKE, Where, after conviction of crime or misdeThe defendant urges that the evidence meanor, accused fails to make the motion to place decided questions of law upon the record shows no negligence upon the part of its for passing the case to the Supreme Court for servants in the operation of the car and es- I final decision as provided in P. S. 2322, it is the |