trial court erred in granting the nonsuit, and that the question of the plaintiff's contributory negligence should have been left to the jury. All of these cases have been carefully examined, and we think that they are readily distinguishable from the case at bar. In some of them the question of the plaintiff's contributory negligence rested upon disputed facts, while in others the questions raised by the facts were those upon which reasonable minds might differ. In the case at bar, as we have already seen, there are no material disputed facts, and reasonable minds could hardly differ as to the plaintiff's contributory negligence when he admits that the guard rail was down, and that he knew of the proximity of the trees, and that he did not even take the precaution to look before thrusting his hand out beyond the line of the car. Without attempting to distinguish each and all of the cases which the plaintiff cites in his brief, and point out the features which distinguish them from the case at bar, a reference to some of them may be advantageous.

In the case of Elliot v. Newport St. Ry. Co., 18 R. I. 707, 28 Atl. 338, 31 Atl. 694, 23 L. R. A. 208, the plaintiff, with others, was riding upon the footboard of one of defendant's cars, holding onto two of the stanchions, supporting the roof of the car, on either side of him, with his face turned toward the opposite side of the car. The plaintiff had never ridden over that part of the defendant's road before that time, and was ignorant of the location of the trolley pole by which he was struck. After passing eight of the trolley poles safely, the plaintiff, while in the act of taking his fare from his pocket, came in contact with the ninth trolley pole erected on the edge of the curbstone and 101⁄2 inches from the outer edge of the footboard on which the plaintiff stood, and was thrown to the ground and injured. The plaintiff was riding on the footboard without objection, and there was testimony that he did not hear any warning as to the danger of contact with the trolley poles. The court held that, under all these cicumstances and conditions, the question of contributory negligence should have been left to the jury It is quite different from the case at bar, where the plaintiff was fully acquainted with the situation, and made no effort to look out for his own safety.

In the case of Dahlberg v. Minneapolis Ry. Co., 32 Minn. 404, 21 N. W. 545, 50 Am. Rep. 585, the plaintiff sat down at an open window in the defendant's car, resting his hand upon and grasping the window sill, so that his fingers only were outside of the car. While the car was passing, at considerable speed, a plank sheathing surrounding the construction work of a sewer, one of the planks, only one inch from the car, grazed

his fingers. The plaintiff had no knowledge of the situation. There was also conflicting testimony upon several points, and the court held that the case was for the jury, but stated the general proposition of law that, if a man should thrust his hand outside of a car window carelessly and negligently, so as to come in contact with an object which was at a reasonably safe distance from the car, he could not recover at all. The facts in that case do not seem to warrant its application to the case at bar.

In the case of Kird v. New Orleans R. R., 109 La. 525, 33 South. 587, 60 L. R. A. 727, 94 Am. St. Rep. 452, the injury to the plaintiff occurred by coming in contact with a bale of cotton placed upon and overhanging the defendant's platform to such an extent that it grazed the cars as they passed, and struck the plaintiff's elbow, which was resting on the window sill. We think that that case presented very different conditions from the case at bar.

In Francis v. N. Y. Steam Co., 114 N. Y. 380, 21 N. E. 988, there was a conflict of testimony as to whether the plaintiff's arm, at the time of the accident, was wholly within the car or protuding therefrom.

In Beaver v. A., T. & S. F. R. R., 56 Kan. 514, 43 Pac. 1136, the question was as to defendant's negligence in dumping a pile of cinders between two tracks where its inspector, the plaintiff, was required to pass in the discharge of his duty.

In D. & M. Ry. Co. v. Van Steinburg, 17 Mich. 99, where the plaintiff sought to recover damages for injuries sustained by being struck by defendant's locomotive at a crossing, the testimony as to speed, warning, and the conduct of the plaintiff was conflicting.

In Cummings v. Wachita Ry., 68 Kan. 218. 74 Pac. 1104, 1 Ann. Cas. 708, the plaintiff was riding in an open car, without screens or guard rails, his back toward the front of the car. The track was double, with trolley poles between. The car was wider than those previously used by the defendant; but the difference in width was unknown to the plaintiff. The position of the trolley poles had not been changed. The court said, "Might not plaintiff, by the absence of a rail or screen, have been assured that there was no danger to be apprehended?”

The other cases cited by the plaintiff are as readily distinguishable from the case at bar as the cases to which we have specifically referred, and we do not think that they need to be separately considered.

We think that the nonsuit was fully justified by the evidence. The plaintiff's exception is overruled, and the case is remitted to the superior court, with direction to enter judgment for the defendant upon the nonsuit..

3. TRIAL ($ 412*)-CURE OF ERRORS.

In an action for the wrongful death of a servant, killed while placing a belt on a rapidly revolving pulley, the withdrawal from the jury of those counts of the declaration based on a claim that deceased was not engaged in his reg; ular employment, at the time of the injury, will not cure the erroneous admission of evidence of his statements, after the accident, that he did not want to come from upstairs where he was working to put the belt on in another department.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 182, 974-977; Dec. Dig. § 412.*] 4. APPEAL AND ERROR (§ 1050*)-REVIEW

HARMLESS ERROR.

In an action for the wrongful death of a servant, the erroneous admission of evidence of statements by the servant, after the accident, that he did not wish to leave the work he was doing and put on a belt, is prejudicial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]

Exceptions from Superior Court, Providence and Bristol Counties; Darius Baker, Judge.

Action by Maria T. Ferance against the Forestdale Manufacturing Company. There was a verdict for plaintiff, and defendant excepts. Exceptions sustained.

Green, Hinckley & Allen, of Providence (Abbott Phillips and Chauncey E. Wheeler, both of Providence, of counsel), for plaintiff. Gardner, Pirce & Thornley, of Providence (Charles R. Haslam, of Providence, of counsel), for defendant.

PARKHURST, J. This is an action of trespass on the case for negligence and is now before this court upon the defendant's bill of exceptions. The case was tried before a judge of the superior court and a jury, January 23-28, 1913, and at the conclusion of the trial a verdict was rendered for the plaintiff in the sum of $4,800. The defendant thereafter duly filed its motion for a new trial; but, before a hearing could be had upon this motion, the trial judge resigned his position as justice of said superior court. Counsel for both parties then came before another judge of the superior court, who overruled the defendant's motion for a new trial as a matter of form, without listening to arguments of counsel. The defendant thereafter duly filed its petition in this court, in accordance with the statute, to establish the truth of its exceptions and the correctness of the transcript of evidence given at the trial of the case. This petition was granted, and the case is now before this court upon the said bill of exceptions presented to the court by the petitioner.

The plaintiff's declaration contains eight counts. In the first it is alleged that on January 3, 1911, the plaintiff's intestate, Manuel T. Ferance, was employed in the defendant's dye house at Forestdale; that while so employed he was suddenly directed by the defendant's agent in charge of said

dye house to leave his regular work and to which had slipped off; that it was not a put upon a rapidly revolving pulley a belt part of his work to put on belts and he was not accustomed to putting on such belts; that he should have been cautioned and instructed; that he received no caution or instructions, but was ordered to hurry and put the belt on; and that while attempting to do this the pulley and shaft and so severely injured he was caught by the belt and wound around that he died a few hours later. In the second count, after similar allegations as in the first count, it is alleged that he informed the "boss" as to his unfamiliarity with such work; and that it was the duty of the defendant to stop or check the speed of the pulley so that Ferance would not be exposed to great danger in putting on the belt; and that the defendant failed to do this, and as a result Ferance was caught by the belt and wound around the pulley and shaft, etc., as before alleged.

The third count, after allegations similar to those in the second count, alleges that it was the duty of the defendant to furnish Ferance with a proper appliance or tool with which he might safely put the belt on the pulley while in motion; that a small unsuitable stick was furnished instead; and that, as a result of the breaking of the stick when being used by Ferance in putting on the belt, he became entangled in the belt, pulley, and shaft and received such injuries that he died soon after. The fourth count is similar to the second count, in that it alleges the duty violated to be that the defendant failed to lessen the speed of the pulley when Ferance was attempting to put on the belt; but there is no allegation that Ferance was unfamiliar with such work. The fifth count is similar to the third, in that it alleges that the duty violated was that an improper tool or appliance, namely, a stick, was furnished to said Ferance to assist in putting on the belt; but there is no allegation that Ferance was unfamiliar with such work. In the sixth count it is alleged that Ferance was ordered to put on a belt which had been shortened to such an extent that it could not be put on the pulley while in motion without great danger to him; that, since he was ignorant of this condition, the defendant was under the duty of stopping or checking the speed of the pulley while he attempted to put on the belt, and, as a result of the violation of this duty, Ferance was fatally injured. In the seventh count the same allegations are made, except that the duty alleged to have been violated was that of so lengthening the belt as not to expose the deceased to so great danger in putting it on the revolving pulley. The eighth count alleges that deceased was ordered to go and at once put a belt on a rapidly revolving pulley; that this belt had been shortened to such an extent that it

could not be put on without great danger; that two other employés had been unable to put on this belt, and these facts were known to the boss and not known to the deceased; that, although the deceased was ignorant of these facts, the defendant failed to inform him that the belt had been so shortened, and, as a result, the deceased in attempting to put it on the moving pulley was fatally injured, as before alleged.

At the trial the plaintiff offered no evidence to sustain the allegations that the work of putting on belts which had slipped off was not a part of the work of the deceased and that he was not accustomed to such work; but, on the contrary, the first witness called by the plaintiff testified that such work was a part of the work of the deceased and had been such for several years; that he was accustomed to such work, and was regarded as a skillful and competent man for that purpose on account of his experience. And there is nothing in any part of the record to show that this was not a fact, but, on the contrary, the testimony of other witnesses corroborated that of the first witness. Nor was there evidence to sustain certain other allegations, to wit: That it was the duty of the defendant to stop or check the speed of the pulley under the allegations of fact as set forth in the second, fourth, and sixth counts; or that the stick furnished the deceased was unsuitable as alleged in the third and fifth counts. And it appears from the transcript that at the conclusion of the testimony, and after the arguments of counsel, it was deemed by the trial judge that the case should go to the jury only upon the seventh and eighth counts.

The facts as they appear in the transcript of the testimony are, briefly, as follows:

The defendant company was in January, 1911, engaged in the manufacture of textiles with a plant at Forestdale. For about four years prior to January 3, 1911, the plaintiff's intestate, Manuel T. Ferance, also known as Francis and as Frank Davis, was employed by the defendant as a "handy man" in the dye house, to do whatever he was called upon to do. Previous to the accident he had frequently put on belts and was regarded as the experienced man in the dye house to put on belts, and it is stated that before the time of the accident he put them on at least two or three times a week, sometimes downstairs in the dye house and at other times upstairs in the drying room of the defendant's mill. At the time of the accident there were several washing or dyeing machines in defendant's dye house, one of which was operated by Thomas Conley. This machine was 15 or 18 feet long, and power was communicated to it by a belt of rubber and canvas composition 3 inches wide and about 30 feet long. This belt ran diagonally from a 12-inch pulley on the right-hand side of the machine about

pulley on the shaft which was 12 to 15 feet from the floor. This belt, when in position, was crossed so as to drive the pulley on the machine in an opposite direction from the pulley on the shaft. The shaft, which carried this pulley, ran the length of the dye house and was then connected by a belt to another shaft, which was connected directly with the main shaft of the mill. Consequently the only way in which the power on the shaft in the dye house could be shut off was by shutting down the engine which furnished power to the entire mill. This dye house shaft, when running, made about 200 revolutions per minute and was what would be generally called a medium speed shaft. It was also in evidence that the belt in question and other belts in the dye house were continually stretching on account of the damp atmosphere, and, consequently the belts had to be shortened frequently in order to make them tight enough to run the machines.

At about half past 7 on the morning of January 3, 1911, the overseer of the dye house, Mr. Walter G. M. Smith, the plaintiff's first witness, discovered that a belt on Conley's washing machine was "too loose" and "not tight enough to drive the machine." Mr. Smith testified that he then "tightened it up a little bit and took an inch off of the belt to make it tight." After the belt had thus been shortened, Conley, who had been employed about a month or a little over, tried to put the belt on, but was not successful. Conley then told Smith that he could not get the belt on, and thereupon Smith went upstairs to the drying room to get Ferance to put on the belt. Smith says that he simply told Ferance that there was a belt off in the dye house and told him to put it on; that they both went down in the elevator together, and Ferance made no objection to obeying the order to put on the belt. It appears that, just before Smith went upstairs to get Ferance, Frank Warzewa, who ran the next machine to Conley's, made a partial attempt to put the belt on this pulley. He took the belt in his hands and climbed the ladder, but got afraid and came down. When Smith and Ferance reached Conley's machine, Ferance asked for a stick, and received one such as was used for a dye stick. ance went up the ladder and used this stick in his attempt to put on the belt. Warzewa testified that, just as Ferance was going up the ladder, he (Warzewa) said to him in English, "No try, too short" and that Ferance in reply laughed and told Warzewa that he' was too small to put on the belt. The plaintiff's witness Turton then says that he saw Ferance lift the belt with his right arm, and that, with the aid of a stick in his right hand, he got the belt a little over half on. While Ferance was trying to put the belt upon the upper pulley, the belt, Turton said, came off the lower pulley, carrying the ship

Fer

around Ferance's right arm, and caused him to be carried around the shaft until the power was shut off. After some minutes of work the fellow workmen of Ferance were able to take him down from the shaft where he was hanging, and then placed him on a truck near by. Apparently he was conscious until taken away to the hospital, where he died within a few hours.

Q. You

[1] The nephew of the deceased, John T. Ferance, a witness for plaintiff, testified that at the time of the accident he was working in defendant's spinning room upstairs. He first noticed that the power was shut off, and then heard some one say "that the fellow got hurt in the dye house." He hurried downstairs to the dye house, where he found the deceased lying on a truck covered with a blanket. This witness says it took him about 22 minutes to get from the spinning room to the side of the injured man, who had just been taken down from the shaft and laid upon a truck when this witness arrived upon the scene of the accident. This witness testified as follows (Transcript, pp. 7376): "Q. Did you say anything to him? A. I shake hands with him, and I ask how he done that, and he told me. Q. What did he say to you at that time as he was lying on this truck? (Objected to by Mr. Gardner.) Mr. Phillips: I offer it as part of the res gestæ. The former witness testified it took two or three minutes to get him down from the shaft, and this man says that his speed was stopped on the shaft, which was done immediately after the accident, and he came right down, and it took him, he said, two minutes to get there. Witness: About two minutes and a half, about. Mr. Phillips: So it would be within four or five, five or six, or seven or eight at the longest from the time when he got caught, and there are a good many decisions in our own state on that point. The Court: It doesn't accord exactly with my view of the res gestæ, but on that decision in the Murphy Case I will let it go in.

(Defendant's exception noted.) Q. Was he suffering pain at the time? A. He was. Q. When he told you? A. Yes. Q. And you have already described his injuries at that time, and what did he say to you at that time? A. He told me when I came there, he told me he was working upstairs on the dryers, and about half past 7 the boss went upstairs to get him down to put on the belt. He told the boss he didn't want to come down, so he came down in the elevator and came down both together. When he came down he

out narrative statements of that nature. Mr. Phillips: I have decisions on that particular point. Mr. Gardner: I am not objecting now on account of the time. I am objecting on account of the character. The Court: In the Champlin Case it was a brief statement of the motorman. Mr. Phillips: In the Murphy Case the man told about an assault upon him. Told it at first and 10 cr 15 minutes later he repeated it and told about how he had been robbed and the other circumstances. The Court: My own view, I may say, is always with the idea that res gestæ remarks are spontaneous and ejaculatory, that is, impulsive, without reflection; but I don't feel at liberty under the decisions our courts have made, and so, although this is in the nature of a statement made here of a narrative, I will let it stand, and you may take an exception, Mr. Gardner. Without authority I should think it was not admissible."

Christian Costa, a witness for the plaintiff, testified as follows (Transcript, pp. 89-91): "Q. Did he say anything while he was on the shaft to you? A. Yes, sir. Q. What did he say while he was on the shaft to you? Mr. Gardner: The same objection I had yesterday. The Court: I will allow the question. A. He said he was in that condition because it was due to the boss. Mr. Gardner: That is a matter of opinion which must be based on the facts. If the dead man was on the stand, he wouldn't be allowed to testify as to whose fault it was. The Court: Why isn't that open to that objection? It is a conclusion. Mr. Phillips: It is merely his idea of it and may not be worth very much, or worth so much as if he had stated certain facts. The Court: If he were alive and testified, it wouldn't be admissible, and it isn't any more admissible if he is not here, is it, such a statement as that? Mr. Phillips: I will ask the witness if he said anything else. Mr. Gardner: I would like to have the answer stricken out. The Court: Very well. Ask him if he said anything else. Q. Did he say anything else? A. He says that he didn't want to come. Mr. Gardner: All subject to the same objection. The Court: Same objection, yes. Q. Was that all he said when he was up there on the shaft? A. Yes, sir. Q. What was done when he was taken down from the shaft? A. They put him on top of a truck which was on a table. Q. And about how long was it before you got him down from the shaft and put him on this truck?