N. H. 611; Free . Buckingham, 59 N. H. defendant did not give the statutory whis219). The defendant's duty to have lightstling signal, it was not submitted to the jury exposed for the benefit or protection of peo- as a ground of liability, and was not conple using the highway in the manner the sidered by them upon that issue. plaintiffs were using it is, to say the least, conjectural and visionary. It is based upon no substantial evidence. The order is: Exception overruled; motion for rehearing denied. PARSONS, C. J., and PLUMMER, J., did not sit. The others concurred. (77 N. H. 208) BOODY v. K. & C. MFG. CO. (Supreme Court of New Hampshire. mack. April 7, 1914.) Merri 1. MASTER AND SERVANT (§ 107*)—INJURIES TO SERVANT-EMPLOYERS' LIABILITY ACT-CON STRUCTION "MILL." The question whether, if the collision was due to the combined negligence of the defendant and the chauffeur whom the plaintiffs employed to transport them from Laconia to Franklin, the negligence of the latter could be imputed to the plaintiffs and precludes their recovery in this action (Noyes v. Boscawen, 64 N. H. 361, 10 Atl. 690, 10 Am. St. Rep. 410) need not be considered; for if, under the circumstances, it cannot be found that the defendant was Laws 1911, c. 163, § 1, provides that it guilty of any breach of duty to the plain-shall apply only to workmen engaged in manual tiffs, it cannot be held responsible for their or mechanical labor in any shop, mill, factory, injuries. If it managed its train with rea-or other place, in connection with or proximity to any hoisting apparatus, etc. Section 2 prosonable care and prudence in view of all the vides that the master shall be liable for any circumstances it knew or ought to have personal injury due to the defective condition known existed there at the time of the colli- of its plant. Held, that the word "mill," which ordinarily means a building in which manusion, it was guilty of no negligence, and can- facturing is carried on, must, in view of secnot be charged for the consequences of the tion 2, be held to include, not only the building collision, whether the chauffeur was careful in which the business of manufacturing is caror negligent. If, as seems probable from the ried on, but the dam, flume, and ways which the master provides for the use of those emevidence, the collision was the result of some ployés whose duties are connected with the deundiscovered defect in the mechanism of the velopment of water power to operate the mill. automobile, the defendant is not responsible. [Ed. Note.-For other cases, see Master and [8] In their brief and at the argument, the plaintiffs took the position that the engineer was negligent in regard to the whistling signal for the crossing. This is a position not taken at the trial, and it is not now open to the plaintiffs to insist upon it. Hill v. Railroad, 72 N. H. 518, 520, 521, 57 Atl. 924; Amoskeag Mfg. Co. v. Manchester, 70 N. H. 200, 203, 46 Atl. 470; Hinckley v. Franklin, 69 N. H. 614, 45 Atl. 643; Melvin v. Weare, 56 N. H. 436, 441. Exceptions sustained. Servant, Cent. Dig. 88 199-202, 212, 254, 255; For other definitions, see Words and Phrases, vol. 5, pp. 4506-4508.] 2. MASTER AND SERVANT (§ 96*)-INJURIES TO SERVANT-EMPLOYERS' LIABILITY ACT-CON STRUCTION. shall apply only to workmen engaged in manual Laws 1911, c. 163, § 1, declares that it or mechanical labor in described employments, which from the nature and conditions of the work are dangerous, because in them the risks of employment and danger of injuries caused by fellow servants are great. Subdivision "b" enumerates work in any mill, shop, factory, or other place in connection with or proximity to PARSONS, C. J., did not sit. YOUNG, J., any machinery operated by steam or other pow dissented. The others concurred. On Rehearing. After the filing of the foregoing opinion on April 1, 1913, and while a motion for a rehearing was pending, the plaintiffs made a motion in the superior court for an amendment to show that the issue of liability on account of the defendant's failure to give the proper crossing signal by sounding the whistle as required by statute (P. S. c. 159, 6) was tried and submitted to the jury. The court, after a hearing, denied the motion, and the plaintiffs excepted. Upon this exception there was a hearing. WALKER, J. [9] The finding of the court denying the motion for an amendment of the case was amply supported by the evidence of what issues were, in fact, tried, and is conclusive. If there was evidence that the er as one of the described employments. Subdivision "d" includes all work necessitating dangerous proximity to gunpowder or boilers, provided injury is occasioned by the explosion of such boiler or explosive. Section 2 declares that the master shall be liable for any personal injury to employés by accident arising out of and in course of the employment, etc. Held, in view of the limitation in subsection "d." a master's liability to mill workers is not confined to injuries arising out of the negligence of fellow servants or the proximity of power-driven machinery, but extends to all injuries received by such employés as the result of accidents arising out of or in course of their employment. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 157, 158, 162; Dec. Dig. § 96.*] 3. MASTER AND SERVANT (§ 97*)-INJURIES TO SERVANT-"ACCIDENT." Where an employé about a mill, run by water power, was drowned in attempting to remove brush from the rack which protected the intake flume, his death was an accident, within Laws 1911, c. 163, § 2, declaring that the master in certain cases shall be liable for personal injuries to servants caused by acci dents arising in the course of employment; the term "accident" being used in its popular sense as an unavoidable casualty. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. § 97.* For other definitions, see Words and Phrases, vol. 1, pp. 62-70; vol. 8, p. 7560.] 4. MASTER AND SERVANT (§ 276*)-INJURIES TO SERVANT-ACTIONS-EVIDENCE, In an action for the wrongful death of a servant. held, that the evidence warranted a finding that the death was, within Laws 1911, c. 163, the result of an accident arising out of the course of his employment, for which the master was responsible. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.*] 5. MASTER AND SERVANT ($ 289*)-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE. In an action for the wrongful death of a servant who was drowned in attempting to clean racks which protected a flume from rubbish, the question of his contributory negligence held, under the evidence, for the jury. [Ed. Note.-For other cases, see Master and Servant. Cent. Dig. §§ 1089, 1090, 1092–1132; Dec. Dig. § 289.*] Exceptions from Superior Court, Merrimack County; Plummer, Judge. Action by Mary Boody, as administratrix of Erastus S. Boody, deceased, against the K. & C. Manufacturing Company, in which there was a verdict for plaintiff. Transferred on defendant's exceptions to the denial of a motion for the direction of a verdict and to the instructions. Exceptions over ruled. YOUNG, J. By the enactment of chapter 163, Laws of 1911, the Legislature intended to change the common law so that one who is injured by accident while engaged in work in which the risks are great and difficult to avoid may be compensated, in part at least, for the loss thereby sustained, if the accident is one arising out of and in the course of the employment, regardless of the cause of his injury. Section 2. It seems to have been understood, however, that this change could not be made without the assent of all those affected by it. It was necessary, therefore, from that viewpoint, to secure the assent of those affected by the act as well as to provide for compensation to the injured. It is the office of section 1 to define those who come within the operation of the act and of sections 2, 3, and 4 to induce them to accept its provisions. The means devised to induce such acceptance by employers were: (1) To provide that if an employé is injured by accident arising out of and in the course of the employment, caused in whole or in part by the negligence of his employers or of their servants or agents, the employers shall be liable to the employé for all the loss he sustains, and he "shall not be held to have assumed the risk" of his injury, but there shall "be no liability under this section for any injury to which it shall be made to appear by a preponderance of evidence that the negligence of the plaintiff contributed" (section 2); and then (2) to relieve employers who accept the act in accordance with the provisions of section 3 from the burdens im Boody was employed by the defendants to work in and about a mill in which power-posed on them in section 2. In other words, driven machinery was used and five or more persons were employed in manual and mechanical labor. The water to drive the ma chinery was taken from a river and flowed from a dam through an open flume equipped with two racks, one located at the intake and the other near the wheels, to catch the rub the means the Legislature devised to induce employers to accept the provisions of the act was to take from those who do not accept it about the only real defense to an action by a servant which is open to his employer at common law. injured by accident arising out of and in the course of the employment; (3) that their fault contributed to cause his injury; and (4) that he was free from fault. Since the defendants have not complied bish which came down the stream in times with the provisions of section 3, the question of high water. It was Boody's work to clean of law raised by their first exception is the racks whenever they needed cleaning, whether it can be found: (1) That the inand when so doing he was expected to stand testate was engaged in one of the employon a narrow, unrailed walk and pull the rub-ments described in section 1; (2) that he was bish out of the racks with a rake. The water was high on the morning of the accident, and there was rubbish in both racks. When last seen alive, Boody was standing on the walk very near the river and with his back to the stream, with a rake in his hand, attempting to pull some brush out of the rack at the intake. A few minutes later he was missing and could not be found. Twelve days later his body was recovered from the river below the mill. After the drowning [1] 1. One of the employments described in section 1 is "work in any shop, mill, factory or other place on, in connection with or in proximity to any hoisting apparatus, or any or other mechanical power, in which shop, machinery propelled or operated by steam mill, factory, or other place five or more perlabor." The word "mill" may be used as sons are engaged in manual or mechanical meaning a building in which manufacturing Martin & Howe, of Concord, for plaintiff. is carried on. It is, however, often used as Jones, Warren, Wilson & Manning, of Man-meaning a manufacturing establishment, and chester, for defendant. when used in this sense it includes all that a broken rake was found in the flume and a freshly broken rake handle was found in the river. who are endangered" by the dangerous agencies described in the act, "while in the scope of their employment.” Is this contention sound? It will be helpful, when considering the question, to remember that it is the office of section 1 to limit the workmen who come within the operation of the act, and of seetion 2 to describe an accident that will entitle such workmen to its benefits. In the final analysis, the defendants' contention is that the words "workmen engaged in * * * work in any shop, mill, factory, or other place, on, in connection with, or in proximity to," power-driven machinery, are descriptive of an accident, not an employment, which will bring a workmen within the operation of the act, or that those words were intended to limit the accidents that will entitle those engaged in such work to the benefits of the is usually intended by the plant of a manu- ! workmen facturing concern; that is, it includes not only the buildings in which the work is done, but everything appurtenant to them. The description of an accident that will entitle an employé to the benefits of the act as one caused by any defect in the employer's "plant" (section 2) tends to the conclusion that that is the sense in which the word "mill" is used in section 1, and so does the context, for "employment" (b) is described • as "work in any shop, mill, factory, or other place," not other building, as it probably would have been if the words "mill, shop, and factory" were used in that sense. As there is nothing to rebut this presumption, it must be held that "mill." as used in section 1, includes not only the building in which the defendants' business is carried on, but their dam, flume, yard, and the ways they provide for the use of their employés. 27 Cyc., act. The act, however, says that it applies 511, II B; 20 Am. & Eng. Enc. Law, 674, note, "Common Usage"; Webster, New Int. Dict. "Mill"; 6 Cent. Dict. "Mill." The intestate, therefore, was engaged in employment (b), and the plaintiff is within the operation of the act unless, as the defendants contend, the employe's injury must be caused by a particular risk peculiar to the employment in which he is engaged in order to bring him within the provisions of the act. [2] It will be necessary, therefore, to consider what the Legislature intended when it enacted: "This act shall apply only to workmen engaged in manual or mechanical labor in the employments described in this section." Section 1. The section describes five separate employments, (a), (b), (c), (d), and (e), and there are certain risks peculiar to each which probably induced the Legislature to include those exposed to them within the operation of the act, for the dangers incident to these risks are great and difficult to avoid. Since this is so, the defendants say it follows that a person engaged in one of those employments is not entitled to relief unless his injury results from the particular risk which induced the Legislature to include those engaged in these employments within the operation of the act. To be more specific: They say that a person who is injured while at "work in any shop, mill, factory, or other place" is not entitled to the benefits of the act, notwithstanding he is injured by accident arising out of and in the course of his employment, unless his injury is caused either by the negligence of a fellow servant, or by one of the risks incident to work "on, in connection with, or in proximity to" powerdriven machinery; that is, unless his injury is caused by one of the risks which induced the Legislature to include those engaged in employment (b) within the operation of the act. They say that "not every employé in a given business or establishment covered by "to workmen engaged in manual or mechan ical labor in the employments described in this section," not to those who are injured while engaged in any one of those employments by the particular risk which induced the Legislature to include those engaged in it within the operation of the act; and there would be more force in the defendants' contention if it were not for the fact that the description of employment (d), all work necessitating dangerous proximity to steam boilers and explosives, concludes: "Provided injury is occasioned by the explosion of any such boiler or explosive." The fact that the Legislature expressed an intention to limit the operation of the act, in so far as persons engaged in the employment are concerned, to those who are injured as a result of the particular risk it had in mind when it described the employment, negatives an implied intention to limit the operation of the act in the same way in so far as those engaged in the other four employments are concerned. In other words, it is probable that if the Legislature had intended to limit the benefits of the act, in so far as these four employments are concerned, to those who are injured by the particular risk that induced it to include them within the operation of the act, it either would have omitted this proviso from the description of (d), or included similar provisos in the descriptions of (a), (b), (c), and (e). The fact that the Legislature added this proviso to the description of one and omitted similar provisos from the description of the other employments, when taken in connection with the fact that the declared purpose of section 1 is to limit the workmen to whom the act applies and of section 2 to describe the accidents which will entitle them to its benefits, makes it certain that those who are injured in an accident described in section 2, while engaged in employments (a), (b), (c), and (e), are entitled to the benefits of the act, both when their in the particular risk which induced the Legislature to include those engaged in their employments within the operation of the act. In short, there is nothing in the act to show an intention to confine its benefits, in so far as those engaged in employment (b) are concerned, to employés who are injured either by the negligence of a fellow servant or by coming in contact with power-driven machinery. A somewhat similar provision of the English workmen's compensation act of 1897 (60-61 Vict. c. 37) is construed in the same way. Maude v. Brook, [1900] 1 Q. B. 575. Any person, therefore, who is engaged in manual or mechanical labor in any shop, mill, factory, or other place, by whatever name known, in which shop, mill, factory, or place power-driven machinery is used and five or more persons are employed is engaged | in employment (b) and is entitled to the benefits of the act if he is injured "by accident arising out of and in the course of the employment." whether he thought the defendants expected him to clean it that morning. It is true that no one saw the accident, but the intestate was seen at or about the time it happened, and at that time was standing on the walk very near to the river, with his back toward the stream, trying to pull some bushes out of the rack with an ordinary garden rake. As no one saw just what happened, it is fair to ask what would have been likely to happen if the rake handle broke or the bushes gave way suddenly. It is clear that, if. either of those things happened he might lose his balance and strike his head on the rocks in the river. The marks that were found on his body tend to the conclusion that that was just what did happen. It can be found, therefore, from the evidence as to where he was standing about the time the accident happened, his position with reference to the river, and the work he was doing at that time, taken in connection with the evidence as to the rocks in the river and the marks found on his body, either that the rake handle broke, or that the bushes on which he was pulling gave way suddenly, and that he lost his balance and in falling struck his head on the rocks and was killed. In other words, it can be found that he was cleaning the rack at the intake when the accident happened. Can it be found that he supposed the defendants expected him to clean that rack that morning? His foreman testified that it was the intestate's duty to clean the rack when it needed cleaning, but said he told him not to clean it that morning, but to clean the rack at the wheels and then report for work. There was evidence, however, to warrant a finding that no such instructions' were given. It can be found that both racks needed clean [3, 4] 2. This brings us to the question whether it can be found that the intestate lost his life in such an accident. The words "by accident arising out of and in the course of the employment" are found in many (perhaps in most) employers' liability and workmen's compensation acts. As these acts are construed, any untoward and unexpected event is an accident. Fenton v. Thorley & Co., [1903] A. C. 443. That is, "accident" is used in its popular sense. Since this is so, the intestate met his death by accident, unless he jumped into the river to kill himself. It can be found, therefore, that his death was accidental. The next question to be considered is whether the accident was one arising out of and in the course of his employ-ing, and that it was reasonable for the intesment. The accident arose out of the intestate's employment, within the meaning of all the cases; but, while there is nothing that can be called a consensus of opinion as to what constitutes an accident (Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Parker v. Hambrook, 107 L. T. Rep. 249, 28 Ann. Cas. 1; Fitzgerald v. Clarke [1908] 2 K. B. 796), most of the cases that have been decided since 1902 would have been decided as they were, if the test that is applied to determine whether an employé was acting within the scope of his employment when he was injured had been applied to determine whether the employé was injured by accident arising in the course of the employment. For a review of the authorities on this question, see an article by Professor Bohlen in 25 Harvard Law Review, 328, and note in 28 Ann. Cas. 4-21. Therefore the method which should be employed in this case to determine whether the intestate was injured by accident arising in the course of the employment is to inquire whether it can be found (1) that he was, cleaning the rack at the intake when the In other words, it tate to think he was expected to clean them. 3. It can be found that the defendants were in fault for not railing the walk, and that, if it had been properly railed, the accident would not have happened; in other words, that but for their fault the accident would not have happened. [5] 4. Can it be found that the intestate was free from fault? The defendants contend that he was negligent in undertaking to clean the racks that morning. The test by which to decide that question is the answer to the inquiry whether the ordinary man, with his knowledge of the situation and its dangers, would have undertaken the work. Although the intestate knew the walk was that if he lost his balance he might fall into 1 3. STATUTES (§ 181*)-CONSTRUCTION-MEANthe river, it cannot be said that all fair- ING OF LANGUAGE. minded men must agree that the risk incident the words used meant to those using them, and, In construing statutes, the question is what to doing the work that morning, because of in ascertaining this, the circumstances under the condition of the walk or the character which the language was used, the probable purof the instrumentalities the defendants pro-legislation and the entire legislation at the time. pose, the general policy on the subject, prior vided, was so great or the danger so apparent and the reasonableness of one construction or that the ordinary man, with his knowledge the other are matters proper for consideration. of the situation and its dangers, would not [Ed. Note. For other cases, see Statutes, have encountered it. Consequently it cannot Cent. Dig. §§ 259, 263: Dec. Dig. § 181.*] be said, as matter of law, that he was in 4. PAYMENT ($$ 82, 87*)—RECOVERY-PAYMENT fault for encountertering it. UNDER DURESS. Money voluntarily paid, without coercion There is no merit in the defendants' con- of any kind, cannot be recovered back; but tention that the instructions excepted to money paid under duress may be, and the coerwere calculated to give the jury the impres-cion need not amount to the duress necessary to the avoidance of a contract. sion that the statute permitted a recovery, [Ed. Note. For other cases, even though the accident would not have Cent. Dig. §§ 254-266, 283-287; Dec. Dig. §§ see Payment, happened but for the intestate's negligence. 82, 87.*] It is enough to say that no such inference can be drawn from the charge. In fact, the jury were told in so many words that the plaintiff could not recover unless they found "from the evidence" that the intestate's carelessness did not contribute to cause his death. Exceptions overruled. 5. CARRIERS (§ 202*) — RECOVERY OF FREIGHT PAID-PAYMENT UNDER DURESS, what the carrier may legally charge may be rePayments to a common carrier in excess of covered back, in an action for money had and received, whether paid under protest or not, since money paid to one who because of his position, is under an obligation to discharge certain duties to the public, but who refuses to discharge such duty, without the payment of a PLUMMER, J., did not sit; the others con- sum of money to which he is not entitled, can curred. (77 N. H. 222) E. D. CLOUGH & CO. v. BOSTON & M. R. R. 1. COMMERCE (§ 8*)-INTERSTATE COMMERCE— be recovered as paid under compulsion. Peaslee and Plummer, JJ., dissenting in part. Transferred from Superior Court, Merrimack County; Chamberlin, Judge. Action by E. D. Clough & Co. against the Boston & Maine Railroad. Transferred from the superior court on plaintiffs' motion to reject defendants' brief statement of defenses. Case discharged. It was a valid defense to a shipper's action to recover freight, charges on interstate shipments in excess of those permitted by a statute of the state and a contract between the Assumpsit, to recover back freight charges state and the carrier that the rates charged of $1.636, alleged to have been unlawfully colwere those lawfully filed and published according to the provisions of the Interstate Com-lected from the plaintiffs by the defendants merce Act (Act Feb. 4, 1887, c. 104, 24 Stat. on certain shipments of lumber, to wit, the 379 [U. S. Comp. St. 1901, p. 3154), since a sum of $2 per car upon 818 car loads shipped contract or the local law must yield to the pow: between points on the Concord & Montreal, er of Congress, and the shipper's sole remedy was by a complaint to the Interstate Commerce Northern, Concord & Claremont, and Tilton Commission. & Belmont Railroads and other points situated on the defendants' railway system. [Ed. Note. For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. § 8.*] On Rehearing. 2. CARRIERS (§ 12*)-RATES-STATUTORY PRO VISIONS. Laws 1883, c. 100, § 17. Laws 1889, c. 5. § 17, and Pub. St. 1901. c. 156, § 42, providing, relative to railroads, the consolidation of which is thereby authorized, that the existing rates for fares and freights shall not be increased on any part of the roads leased or united, apply to the aggregate rates for all freight and passenger traffic, and not to specific rates for particular commodities or routes, especially in view of Laws 1883. c. 101, § 4, creating the board of railroad commissioners, and authorizing it to fix tables of maximum charges for the transportation of passengers and freight, and change them from time to time as the public good may require, and in view of the fact that prior to 1883 the Legislature had never attempted to regulate rates in detail. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Dec. Dig. § 12.*] The shipments were of four classes: (1) From a point in this state on one of said roads to another point in this state on the same road, (2) from a point in this state on one of said roads to a point in this state on another of said roads, (3) from a point in this state on one of said roads to a point in this state on some other line of railway operated by the defendants, and (4) from a point in this state on one of said roads to a point in Massachusetts on some other line of railway operated by the defendants; but each shipment was transported by the defendants, either wholly or in part within this state, over one or more railways operated by the defendants by virtue of leases and unions effected under chapter 100 of the Laws of 1883, or chapter 5 of the Laws of 1889, or chapter 156 of the Public Statutes, and the rates charged |