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the case.

For the

he transmitted it subjected it to certain restrictions, may arrive at a conclusion different from that of
and stated that in his judgment the public interest | the governor, and if they do it will be their duty
requires certain parts of it to be kept secret, and to decide according to their own views, as the gov-
had accordingly made a reservation of thein, all ernor in his action must be governed exclusively by
proper respect would have been paid to it, but he his views. The governor cannot be examined as
has made no such reservation, As to the use to be to his reasons for not signing the bill, nor as to his
made of the letter it is impossible that either the action in any respect regarding it. But there is no
court or the attorney can know in what manner it reason why he should not be called upon to testify
is intended to be used. The declarations therefore as to the time it was delivered to him; that is a
made upon that subject can have no weight. bare fact that includes no action on his part. To
Neither can any argument on its materiality or in this extent at least, I am of opinion that he is
materiality drawn from the supposed contents of the bound to appear and testify."
parts in question. The only ground laid for the In case 3 it was said: “ We must first under-
court to act upon is the affidavit of the accused, stand who the persons are against whom the court
and from that the court is induced to order that has directed its attachment, and for what purpose
the paper be produced, or the cause be continued. they have been subpænaed. They are the governor
In regard to the secrecy of these parts which it is of Pennsylvania, the secretary of the Common-
stated are improper to give out to the world the wealth, the adjutant-general, chief executive officers
court will take any order that may be necessary. I of the executive department of the State govern-
do not think that the accused ought to be prohib- ment, and two officers of the National Guard; the
ited from seeing the letter, but if it should be latter subordinates acting under the orders of the
thought proper I will order that no copy of it be former. The purpose for which these officers are
taken for public exhibition, and that no use shall subpænaed is, that the grand jury may be put into
be made of it but what is necessarily attached to possession of any information that they may be

After the accused has seen it it will yet possessed of, or that may be within the power of be a question whether it shall go to the jury or not. their several departments concerning the military That question cannot be decided now, because the or other means used by them in the suppression of court cannot say whether those particular passages the late riots in the city of Pittsburgh. It will be are of the nature which are specified. All that the observed that these persons are subpænaed for the court can do is to order that no copy shall be taken, purpose of compelling a revelation of such things and if it is necessary to debate it in public those as have come to their knowledge in their official who take notes may be directed not to insert capacities, and which strictly belong to their sevany part of the arguments on that subject. I be- eral departments as officers of the Commonwealth. lieve, myself, that a great deal of the suspicion This is clearly set out in the answer by the attorneywhich has been excited will be diminished by the general to the application for the attachment, and exhibition of this paper."

there has been no denial thereof upon the argument before us.

In order to simplify matters we may ILLUSTRATIONS.

treat this case just as though the process, first and (A.)

last, were against the governor alone; for if he is 1. The governor of a State is summoned to exempt from attachment because of his privilege testify as to his reasons for not signing an act of his immunity protects his subordinates and agents. the Legislature, and as to his actions otherwise in The general principle is that whenever the law respect to it. He can legally refuse to answer (3). vests any person with the power to do an act, at

2. The governor of a State is summoned to tes- the same time constituting him a judge of the evitify as to the time an act was delivered to him for dence on which the act may be done, and contemhis approval. He cannot legally refuse to answer (4). plating the employment of gents through whom

3. Certain riots in the State being under investi- the act is to be accomplished, such person is gation by the grand jury, a subpæna is issued to clothed with discretionary powers, and is quoad hoc the governor and his officers, requiring them to at

a judge. His mandates to his legal agents, on his tend before that body, and testify to facts within declaring the event to have happened, will be a their knowledge as to the origin and continuance protection to those agents. Vanderheyden v. Young, of the riots

. The governor and his officers decline 11 Johns. 158, per Spencer, J. It follows, if the so to testify, on the ground that such disclosures governor, as supreme executive and as commanderare against the public interest. This excuse is le-in-chief of the army of the Commonwealth, is gal, and they cannot be compelled to testify (5).

charged with the duty of suppressing domestic inIn cases 1 and 2 it was said: “The time when it surrections, he must be the judge of the necessity was delivered to the governor may be a very mate- requiring the exercise of the powers with which he rial fact in determining that question. That is a

is clothed, and his subordinates who are employed proper question for the courts to determine. They to render these powers efficient, and to produce the

legitimate results of their exercise, can be account(3) Thompson v. German Valley R. Co., 22 N. J. Eq. able to none but him. In like manner, if he is con

stituted the judge of what things, knowledge or (5) Appeal of Hartranft, 85 Pa. St. 442 (1877).

information coming into his department through

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11 (1871).

(4) Id.

himself, personally or from his subordinates, may done within its own department, and what of its or may not be revealed, then such subordinates own doings and communications should or not without his permission cannot be compelled to dis- be kept secret, and that with it, in the exercise of close in court any such matters or information. these constitutional powers, the courts have no What then are the duties, powers and privileges of more right to interfere than has the executive, unthe governor? In the language of the Constitution, der like conditions, to interfere with the courts. article 4, section 2, “the supreme executive power In the case of Oliver v. Warmouth, 22 La. 1, it was shall be vested in the governor, who shall take care held (per Taliafero, J.), that under the division that the laws be faithfully executed.” Also samo of powers, as laid down in the Federal and article, section 7: “The governor shall be com- State Constitutions, the judiciary department has mander-in-chief of the army and wavy of the Com- no jurisdiction over or right to interfere with the monwealth, and of the militia, except when they independent action of the chief executive in the shall be called into the actual service of the United functions of his office, even though the act he is reStates.” He is also invested with the appointing quired to perform be purely ministerial. This is and pardoning powers; the power to convene the putting the matter on very high grounds, for in Legislature in cases of emergency, and to approve such case no other officer would be exempt from the or veto bills submitted to him by the General As- mandatory power of the judiciary. No case could sembly. It is scarcely conceivable that a man more forcibly exhibit the extreme reluctance of could be more completely invested with the su- courts to interfere with the functions of the supreme power and dignity of a free people. Observe, preme executive, for the hypothesis put is the rethe supreme executive power is vested in the governor, fusal of the governor to perform a duty cast upon and he is charged with the faithful execution of the him by law of a character strictly ministerial. We laro, and for the accomplishment of this purpose he think however that the ground upon which this deis made commander-in-chief of the army, navy and cision stands is substantial; for as the learned jusmilitia of the State. Who then shall assume the tice well argued, the difficulty arises in the attempt power of the people, and call this magistrate to an to establish a distinction between ministerial and account for that which he has done in discharge of discretionary acts as applied to the governor, and his constitutional duties? If he is not the judge then to conclude that the former may be enforced of when and how these duties are to be performed, by judicial decree; it is objected however that the who is? Where does the Court of Quarter Sessions, doctrine is unsound in this, that it gives to the juor any other court, get the power to call this man

diciary the large discretion of determining the before it, and compel him to answer for the manner character of all acts to be performed by the chief in which he has discharged his constitutional func-executive; that this would infringe his right to use tions as executor of the laws and commander-in

his own discretion in determining the very same chief of the militia of the Commonwealth? For it question; that he must necessarily have the unconcertainly is a logical sequence that if the governor | ditional power of deciding what acts his duties recan be compelled to reveal the means used to ac

quire him to perform, otherwise his functions are complish a given act he can also be compelled to trammelled, and the executive branch of the govanswer for the manner of accomplishing such act. ernment is made subservient to the judiciary. The If the Court of Quarter Sessions of Allegheny | principle enunciated in the above stated case applies county can shut him up in prison for refusing to with greater force to what we now have under conappear before it and reveal the method and means

sideration; for if the governor's discretion may

not used by him to execute the laws and suppress be interfered with in a matter purely ministerial, domestic violence, why may not it commit him for

much more may that discretion not be interfered a breach of the peace, or for homicide, resulting with in a case which pertains to his office and dufrom the discharge of his duties as commander-in- ties as commander-in-chief, in the discharge of chief? And if the courts can compel him to an- which the Constitution makes that discretion his swer, why can they not compel him to act? All peculiar and absolute prerogative. Again, the gov. these things, we know, may be done in the case of

ernor, having a proper regard for the dignity and private individuals; such a one may be compelled welfare of the people ot the Commonwealth, is not to answer, to account and to act.

In other words, likely to submit himself to imprisonment on the if from such analogy, we once begin to shift the decree of the Court of Quarter Sessions, or to persupreme executive power from him upon whom the mit his officers and coadjutors to be thus imprisConstitution has conferred it, to the judiciary, we oned. Were we then to permit the attempt to enmay as well do the work thoroughly, and constitute

force this attachment, an unseemly conflict must the courts the absolute guardians and directors of result between the executive and judicial departall governmental functions whatever.

If however menis of the government. We need not say that this cannot be done we had better not take the first prudence would dictate the avoidance of a catasstep in that direction.

We had better at the out-trophe such as here indicated.” set recognize the fact that the executive depart. 1. A subpæna is directed to the governor of a ment is a co-ordinate branch of the government, State requiring him to produce in court a certain with power to judge what should or should not be

document. He refuses on the ground that his offi

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cial duty requires that he shall not make public the MASTER AND SERVANT—" FELLOW SERVANTdocument. His refusal is legal (6).

-- MINING SUPERINTENDENT NOT. 2. G. was sued by P. for libel. P. was a State

officer, and it appears that G. had made a deposi-
tion, which he had sent to the governor, charging

P. with drunkenness and incapacity. A subpæna

One who contracts with a mining company to break down was issued to the governor to produce this deposi

rock and ore for a certain distance to disclose the vein, at tion at the trial, but the governor refused. His re

a stipulated price per foot, the company to furnish steam fusal was legal (7).

drill and keep the drift clear of rock as the contractor 3. In an action for libel on an officer in the army, broke it down, is to be regarded as a contractor with and

not a servant of the company. He is not a fellow-servant the secretary of war is asked to produce certain let

with the superintendent of the company under whose diters written to him on the subject. He refuses on

rection his work is performed. the ground that to do so would be injurious to the where there is a binding contract for the performance of a public service. His refusal must be upheld by the specific job by the contractor for a price agreed, it matters court (8).

not in determining the question whether he who has un.

dertaken such job is to be regarded as the mere servant In case 1 it was said: “Whether the highest offi

of the other party, what kind of work was the subject of a cer in the government or State will be compelled

the contract, or whether it was or not a portion of the reg. to produce in court any paper or document in his ular work which the party contracting for it was carrying possession is a different question (from his being compelled to appear personally), and the rule

Where a ladder-hole is cut in a platform to a mine while it is

in active operation, by the direction of the superintendadopted in such cases is that he will be allowed to

ent, and one who is employed in the mine, for want of a withhold any paper or document in his possession,

railing or light, or want of warning, falls through the hole or any part of it, if in his opinion his official duty and is injured, the company operating the mine is liable requires him to do so. These were the rules for the damages sustained, whether the person so injured

was a servant or contractor.
adopted by Chief Justice Marshall in the trial of
Aaron Burr. He allowed a subpana duces tecum to

N action of the case to recover damages alleged to

President Jefferson, and held that he was bound to

have been sustained by the plaintiff by the vegliappear, but that he should be allowed to keep back

gence of defendants. The opinion states the case.

The verdict was for the plaintiff in the sum of $2,500. any document or part of a document which hc

4. P. Wiswell, for plaintiff.
thought ought not to be produced.
In case 2 it was said: “As to the governor in

Hale, Emery and Hamlin, for defendant.
this case being compellable to give the deposition BARROWS, J. The plaintiff claimed to recover dam-
or writing transmitted to him, I incline to think it ages of the defendants on the ground that prior to the
cannot he done. It must be a matter within his 3d day of December, 1881, he had entered into a writ-

ten contract with them to break down the rock and discretion to furnish or to refuse it, and this on

ore for a certain distance so as to disclose the vein in a grounds of public policy. And Tilghman, C. J., certain drift in their mine leading northerly from the added: “ It is matter of very delicate concern to

main shaft at a distance of 270 feet from the surface, compel the chief magistrate of the State to produce at an agreed price for each horizontal foot of rock a paper which may have been addressed to him aud ore so broken down, he to furnish his own powder

and oil and the men to run the machine (who were to in confidence that it should be kept secret. Many be paid by him), the company to furnish the steam will be deterred from giving to the governor that drill and keep the drift clear of rock as he broke it information which is necessary if they are to do it down; that long prior to that date the company had at the hazard of an action, and of all the conse

constructed a substantial platform in their shaft at the

270-foot level, and at the entrance of the drift in which quences flowing from the enmity of the accused.

the plaintiff and his men were performing their labor It would seem reasonable therefore that the gov- uuder that contract, which platform until that day enernor, who best knows the circumstances under tirely filled the shaft at that point excepting a hole in which the charges have been exhibited to him, and one corner known as the bucket-hole; that it was procan best judge of the motives of the accused, should vided in the contract that the plaintiff and his men exercise his own judgment with respect to the pro

were to have the use of the platform and of the bucket

to go up and down while performing the contract; priety of producing the writing. It is not to be that defeudants were bound to keep said platform in presumed that he would protect a wanton and ma- a suitable and safe condition for the use of all persons licious libeller, and even if he should, it is better properly upon and using the same, and up to that time that a few of the guilty should escape than that a

it had been used by the plaintiff aud others employed precedent be established by which many innocent in that drift in the ordinary course of their laborg

daily; that on that day the defendants carelessly and persons may be involved in trouble. These seem

negligently caused a hole three feet in length by twento have been the sentiments of the Court of Com-ty-six inches in breadth to be cut for a ladder-hole in mon Pleas, who refused a subpana duces tecum." that platform near the center of it, directly back of


the bucket-hole, and twenty inches distant therefrom,

without placing any rail or barrier about it, or any (6) Thompson v. German Valley R. Co., 22 N. J. Eq. 111 light or other warning there, and without giving the (1871).

plaintiff notice that any such dangerous change had (7) Gray v. Pentland, 2 S. & R. 26 (1815).

been made in the platform; and that without any (8) Beatson y. Skene, 5 H. & N. 850 (1860); Earl v. Vass, 1 Row. 229 (1822).

*S. C., 76 Me. 100.

knowledge of its existence or fault on his part, the view of the decisions, some of them irreconcilably conplaintiff, in the ordinary course of his business, having flicting, touching the liability imposed by law upon occasion to go upon the platform, fell through this new masters for the negligent acts of servants in their em. hole a distance of thirty-five feet, and received serious ploy, and wbat constitutes the relation of master and bodily injury. It appears in the exceptions that the servant in such cases. That has been done not long written contract with the plaintiff was in the posses- since in Eaton v. E. & N. A. R. Co., 59 Me. 520; and sion of the defendants, but it was not produced by McCarthy v. Second Parish in Portland, 71 id. 318. them, and its full details as given by the plaintiff his We think it clear that upon the undisputed evidence testimony should be regarded as proved. The only presented in these exceptions Mayhew was a contracmodification suggested in defense comes from the tes- tor with the defendants for the performance of this timony of the defendants' superintendent to the effect job, and not a servant employed by them, whose serthat " plaintiff in his work was under the direction of vices they could dispevse with at will, or who could be the superintendent." There was evidence that the lad- regarded as assuming any risks arising from the negli. der-bole was made by direction of the defendants' gence of the company's servant or superintendent. It "superintendent."

was directly held in Eaton v. E. & N. A. R. Co., supra, Hereupon the defendants requested various instruc- that the fact that the work was to be done "under the tions, for the details of which reference may be had to direction of the chief engineer of said company, as rethe bill of exceptions, all looking to a finding by the quired by the contract," did not convert the contrac. jury that the plaintiff, doing his work under the direc- tors into servants of the railway company, and that tion of the superintendent, and being engaged in the fact is all that can be inferred from the testimony of general work of carrying on mining in the company's the defendants' superintendent in the present case. mine, although he was paid by the foot for the work | Defendants' counsel lay much stress upon the fact done by bim and the men in his employ, was not a that it was part of the regular mining operations that coutractor with but a servant of the defendauts, and Mayhew was carrying on. But where there is a bind80 not entitled to recover for an injury caused by the ing contract for the performance of a specific job by negligence of a fellow-servant. The presiding judge the contractor and those whom he may employ for a refused the several requests, and said to the jury: "I price agreed, it matters not, in determining the quesinstruct you as matter of law that if you find the con- tion whether he who has undertaken such job is to be tract as the plaiutiff claims it, the plaintiff was not a regarded as the mere servant of the other party, what servant of the defendant corporation within the mean- kind of work was the subject of the coutract, or ing of the law, and not a co-servant with the day la- whether it was or was not a portion of the regular work burers and servants of the corporation." The defend- which the party contracting for it is carrying on, or ants reasonably excepted to this instruction and to some piece of work incidentally connected with it as the refusal of their requests. The exceptions are not necessary or convenient. Such an agreement bearg teuable.

little resemblance to a mere arrangement for the com1. The defendants found their claim that the plaint- pensation of personal services by the piece instead of iff was simply a servant of the company, and so a co- by the day. We think the instruction given was corservant with the superintendent and the man who cut

rect upon the uncontradicted testimony, and the re. the hole in the platform under his direction, upon the quested instructions being inconsistent with it, were idea that the work he was doing (blasting to disclose rightly refused. the vein) was part of the regular work of the mine, 2. But elaborate discussion of the relations of the and was done under the direction of the superintend parties to each other in this particular seems the more ent, and hence they argue that the relation between needless, because we are of the opiniou that the case him and the company was that of master and servant falls into that class which requires an employer at his merely, and not that of parties bound to each other peril to keep his premises and all ways of access as mutual contractors for any purpose except for the thereto free from unknown dangers not naturally or rendering and compensation of personal services. commonly incident to the work to be carried ou there,

A glance at the abbreviated statement of the terms and makes him liable to his servants and employees, as and conditions of the contract above given will show well as to all others who are there by invitation, for the the fallacy of the claim. Here was a job of a certain existence of secret pit-falls which he negligently pernumber of feet of rock and ore to be broken down at a mits or causes to be made when damages thereby acstipulated price, by one who was to furuish and crue without the fault of the injured party. pay his own assistants and find the materials necessary In Thompson on Negligence, vol. 2, p. 973, we find for the performance of the job. The defendants let

the law upon this topic briefly stated as follows: “If this piece of work to be performed by a contractor, in- the master has failed in his duty in this respect, and stead of employing men to perform it. Had this been the servant has in consequence of such failure been ina suit brought by one of Mayhew's employees to re- / jured without fault on his part, and without having cover for an injury caused by the negligence of one of voluntarily assumed the risk of the consequences of the men who was operating the steam drill which they the master's negligence, with full knowledge or comwere to furnish Mayhew under the contract, it would

petent means of kuowledge of the danger, he may rehave quickened the perceptions of the defendants as cover damages of the master." to what constituted a contract with Mayhew, and Numerous cases are cited in support of the doctrine, they would have confidently claimed exemption from thus laid dowol, and among them Buzzell v. Laconia liability upon the ground that the man who was ruu- Man. Co., 48 Me. 113; Shanny v. Androscoggin Mills ning the steam drill, though paid by them, was not Co., 66 id. 420, in both which, and in cases there cited, their servant, but pro hac vice the servant of the co11- it is fully recognized and affirmed. In the full and tractor, and they would have found in Rourke v. White valuable text book from which the above quotation is Moss Colliery Co., 2 C. P. Div. 205, au authority in made it is well said also (p. 974) that the servant has a point to support their claim, where the subject and remedy against the master when the injury is in coll. terms of the contract were singularly like those in this

sequence of the direct negligence of the master or bis case in their general character. Similar iu principle vice principal in his personal conduct of the work; and are Murray v. Currie, 6 C. P. 24; Reedie v. Rail. I (p. 975) when the carelessness of the master exposes the way Co., 4 Ex. 244; Pearson v. Cox, 2 C. P. Div. servant to sudden and unusual danger. 309.

These rules are thus illustrated : “The master may This case does not seem to call for an extended re. not with impunity expose a servant to dangers not con.

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templated in his original contract of employment and ter of the negligence is not available. It was negli-
tot connected therewith. Thus the proprietors of an gence which exposed the plaintiff to a peril, the risk of
establishment in one room of which about twenty girls which he never assumed. It created a danger in a
were employed, deemed it expedient to remove an place where a servant had a right to expect safety. It
engine from one room of the factory to another. Being was the negligence of those for whose fault in this par-
pressed with business, they made the change in the tioular the defendants were responsible. That it was
night-time; and in the morning the machine was left committed in furtherance of the defendants' mining
in such a position that the main shaft projected operations can no more aid the defense here tbau it
through the wall into this room from four to six feet. did in cases of like negligence in Fairbank v.
In tbis state the machinery was put in motion. Oue Haentzche and Berea Stone Co. v. Kraft, supra.
of the girls in passing near tbe revolving shaft about Nor is it of any importance whether the vegligence
her work was caught by it and injured." The employer exhibits itself in the form of a chronic remissuess, su-
was beld liable. Fairbank v. Hrentzche, 73 I11. 237. perficial oversight, or positive careless act which in-

Now as to what makes a "vice-principal,” the gen- troduces unawares a new and serious danger upon
erally received doctrine is as stated in Whart. Neg., premises previously safe. We do not think the scanty
8 229 : “When the employer leaves every thing in the protection for servants and employees which they en-
bands of the middle-man, reserving to himself no dis- joy under the rule should be abridged by mere sub-
cretion, then a middle-man's negligence is the em- tlety of reasoning and verbal refinements of logic.
ployer's negligence, for which the latter is liable.”

4. Nor do the instructions given respecting the alIt canuot be questioned that the superintendent of lowance of damages for the future furnish the defendthis mine, to all intents and purposes, had this control ants any good cause of complaint. As to damages, of the defendant's business there. Applying these the defendants' first request for instructions, besides principles to the case before us, had Mayhew, instead being fully covered in the charge, was emphatically of being a contractor, been a servant and day laborer given in terms; and the other requests, in one form in the employ of the defendants, they must still be or another, all called for a measure of proof which is beld chargeable under the circumstances for the act of not appropriate in the trial of civil causes to the jury, their superintendent in thus converting a substantial and were for this cause rightly refused. platform in constant and daily use into a dangerous 5. The defendants complain because they were not trap, without light, barrier or warning to the plaint- | allowed to ask Stanley (who made this hole in the

platform, under the direction of the defendants' superThe ruling of the presiding judge was not only cor- intendeut, and who testified that he was a miner of rect, but the defendants' contention upon the point to twenty-five years' experience, that he had worked in which it related was immaterial, and could not affect several different mines, and had constructed other the result. Nor could it aid the defendants to avoid ladder-holes, and noticed many more) the following their liability in such a case if it appeared affirmatively questions: that the neglect to notify the plaintiff or to guard or “Have you ever known ladder-holes at a lower level light the pit-fall, which was made by the direction of to be railed or fenced round ?" their superintendent on their premises, was the neg- “As a miver, is it feasible in your opinion to use a lect of subordivates, who did the work. The hidden ladder-hole with a railing round it?and extraordinary dauger which caused the plaintiff's "Have you ever seen a ladder-bole in a mine below hurt bears little analogy to the obvious perils iv Lawler | the surface, with a railing round it?" F. Androscoggin R. Co., 6. Me. 463, and Osborne v. Also that they were not allowed to ask one Dugan Knox & Lincoln R. Co., 68 id. 49, which are cited by (who gare similar testimony as to the length of his exthe vigilant counsel to support their contention that perience as a miner, and that he had worked in many "the improper construction of the ladder-hole (if it different mines and observed the ladder-holes in them) was improper), the want of light or railing, or the this question : want of warning, was the negligence of the superin- “From your experience as a miner, whether or not tendent or Stanley, and if it was the negligence of the this ladder-hole, as Mr. Stanley left it, was constructed superintendent the same rule applies.”

in the usual and ordinary manner of ladder-holes in Created as the danger here was, by the direction of mines, and in a proper way?" one who quoad hoc stood in the place and stead of Defendants' counsel claim that the favorable anthe defendants themselves, their reasonable duty was swers to these questions which they had a right to ex. to protect the plaintiff against suffering from it una- pect would have tended to show that there was no Wares, whether he was a serrant or contractor.

want of “average ordinary care on the part of the 3. Defendants' counsel argue that this case “is not defendants. We think the questions were properly within the principle of the cases holding the master re- excluded. The nature of the act in which the defend. sponsible to his servant for the neglect of another ser- auts negligence was asserted to consist, with all the vant charged with the repairs or keeping in order of circumstances of time and place, whether of commisbuildings or machinery,” because it is not a case of a sion or omission, and its connection with the plaintiff's platform made of defective materials or badly put to- injury, presented a case as to which the jury were as gether. They rightly concede that “if the defendants' well qualified to judge as any expert could be. It was servant,charged with the duty of keeping the platform not a case where the opinion of experts could be necin good repair, bad neglected that duty or insuffi- essary or useful. See for analogous instances Cannell ciently performed it, and the accident had resulted v. Insurance Co., 59 Me. 582, 591; State v. Watson, 65 from that neglect, the company would have been lia- id. 76, 77, and cases there cited. See also Lord Mansble." But they seem to derive consolation and encour- field's opinion in Carter v. Boehm, 3 Burr. 1905, and agement from the undisputed fact that “the platform note to S. C. Smith's Lead. Cas. (6th Am. ed.) vol. 1. Was strong, properly built of good materials and in part 2, page 769. If the defendants had proved that in good repair," until this hole was made in it by direc- every mining establishment that has existed since the tion of defendants' superintendent. They contend days of Tubal-Cain, it has been the practice to cut that the negligence which caused the plaintifs injury ladder-holes in their platforms, situated as this was, was in another mining operation-in the carrying on

while in daily use for mining operations, without of the work of the mine. We think that the distinc- guarding or lighting them, and without notice to contion which the counsel seek to draw as to the charac- tractors or workmen, it would have no tendency to


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