were destroyed, was the result of plaintiff's own negligence. This answer was traversed by reply. At the conclusion of plaintiff's testimony, the court, on motion of defendant, instructed the jury peremptorily to find for the defendant, which was accordingly done; and plaintiff's motion for a new trial having been overruled, she prosecutes this appeal.

It may be conceded that the evidence introduced tended to sustain the allegations of the petition. The only ground relied on for a new trial is that the court erred in giving the peremptory instruction, and that the verdict is contrary to law and evidence. The sole question presented for decision is whether the city of Lebanon is responsible for the damage inflicted upon the plaintiff under the facts and circumstances as alleged and proved. The appellee is authorized by law to establish and provide for the prevention and extinguishment of fire, and it seems that such authority may be treated as a governmental function. It seems to us that under the principles announced by this court in Greenwood v. City of Louisville, 13 Bush, 226, plaintiff was not entitled to recover in this action. The question as to the liability of the individuals for wanton and reckless destruction of property, if such there was, is not presented for decision. It does not appear in this case that either the city or fire company intentionally destroyed plaintiff's property for the purpose of checking or arresting the spread of the fire, and for the protection and benefit of other property. Hence that question is not presented for decision.

Judgment affirmed.

BESSEY v. NEWICHAWANICK COMPANY.

Supreme Judicial Court, Maine, March, 1900.

MASTER AND SERVANT - EMPLOYEE FALLING INTO VAT-INFANT - CONTRIBUTORY NEGLIGENCE. - The plaintiff, seventeen years and two months old, and of ordinary intelligence, had been employed in defendant's mill off and on for two years, first in the card room, then as a spinner, and lastly, for four weeks, in the dye room, where he was, while at work, accidentally injured. Before this he had noticed how the work in the dye room had been carried on by other employees.

The dye room contained four vats, each six feet long by five wide, and two feet seven inches in height above a planking that circled the vat at the floor. The planks were eight to ten inches wide, lying flatly on the floor, and beveled off from the vat. There was an open frame, fitted with slats, in the vat, and a hoisting gear connected with it, by which the frame loaded with wool was lowered into and raised out of the hot dye.

To raise the frame up from the vat, two men (plaintiff and another) were

required to connect certain hooks and rings together in the gearing above the vat and while they were leaning over the vat, on opposite sides of it, in an attempt to effect the coupling, the plaintiff fell into the vat, and was badly scalded.

His own evidence was that the floor was wet about the vat, and was usually so, and that he slipped and went into the vat; and neither from him nor from any witness is there any other evidence as to how the accident happened. Held, on these facts, that the plaintiff cannot recover, either upon the ground that the defendant did not furnish safe and sufficient machinery, or that the plaintiff was not sufficiently instructed in the hazards of the employ. The presumption is that the plaintiff was guilty of some carelessness that caused the injury (1).

ment.

(Official.)

1. Employee injured by defective dray.In DUTCH v. BODWELL GRANITE Co. (Maine, February, 1900), 46 Atl. Rep. 787, action for injuries sustained by plaintiff, a teamster in defendant's employ, caused by the breaking of an axle on the dray driven by plaintiff, the jury returned a verdict for plaintiff for $1,623, to which defendant excepted and moved for a new trial, but the same were overruled. The official syllabus states the case and points as follows:

The admission of immaterial evidence is not necessarily error, but it may be, if the evidence is mischievous, and calculated to mislead the jury.

"The defendant had exceptions to evidence that blacksmiths do not commonly use refined iron in forgings required to withstand a strain. Held, that whether they do or not is immaterial, since they may not use it for various reasons, e. g., its weakness, cost, nonmalleability, and difficulty in working it, or the infrequency of not having a supply at hand, or for other reasons peculiar to them.

"The plaintiff obtained a verdict for personal injuries, which he contended, among other reasons, were caused by the defendant's negligent construction of a dray used by it for hauling stone. The case was contested upon other points besides the defective dray, and the defendant contended that the in

jury resulted from the plaintiff's own conduct, and not from the defective dray. Held, that a motion for a new trial should be overruled, it appearing that the trial was a fair one, conducted by eminent counsel, and the verdict supported by evidence which the court cannot say is insufficient."

Employee falling into excavation Fellow-servant — Assumption of risk.In FRYE v. BATH GAS AND ELECTRIC Co. (Maine, February, 1900), 46 Atl. Rep. 804, an action by plaintiff, twenty years of age, a fireman in defendant's power house, for injuries sustained by falling into an excavation in defendant's boiler room, there was a verdict for plaintiff for $4,166. Defendant's motion for new trial overruled. The official syllabus states the case as follows:

"It is the duty of the master to provide a reasonably suitable and safe place where his servant can perform his work. The neglect of that duty by the master's employees is the neglect of the master himself.

"The plaintiff was a fireman employed in the boiler room of the defendant, and while thus at work fell into a hole that had been dug and left open, or in a dangerous state, in front of the boiler, by the defendant's employees who were making a foundation there for an "economizer." Held, that leaving the hole uncovered, or the

REPORT from Supreme Judicial Court, York County.

Action by Howard Bessey, by his next friend, against the Newichawanick Company. Case reported, and judgment for defendant. Action on the case to recover damages received by the plaintiff, a boy of seventeen years, while working in the dye room of a woolen mill of the defendant in South Berwick. The plaintiff claimed that the defendant was negligent in two particulars: First, in the construction of its vat; and, second, in failing to notify the plaintiff of the dangers of such construction, the plaintiff being of such immature age that he did not appreciate the danger of the work he was set to perform.

Argued before PETERS, Ch. J., and HASKELL, WISEWELL, STROUT, SAVAGE and FOGLER, JJ.

C. DEAN VARNEY, EDWARD F. GoWELL and GEO. F. HALEY, for plaintiff.

GEORGE C. YEATON and JOHN KIVEL, for defendant.

PETERS, Ch. J. — The essential facts in this case are not really in dispute, but only the inferences to be fairly deduced therefrom. To the court, by agreement of the parties, is left the decision of the case upon both the law and the fact.

The plaintiff at the time his injury was received was seventeen years and two months old, and, as far as appears, possessed of such degree of intelligence as ordinarily belongs to one of his years. He had been in the employment of the defendant company in their mill, off and on, in different ways, for about two years, attending breakers and hoppers in the card room, then becoming a spinner in the mill, and lastly working in the dye house, where he had been

excavation in an unsafe condition, was negligence of the master, and that the doctrine as to negligence of a fellowservant does not apply.

"While it is settled law that a servant assumes the ordinary and apparent risks of his employment, he does not assume the risk from defects in the plant itself, which the master is bound to make and keep reasonably safe.

"The fact that a person takes voluntarily some risk is not conclusive evidence, under all circumstances, that he is not using due care. Nor is knowledge of a danger not fully appreciated conclusive that the risk is his.

"While the defendant may well be chargeable with negligence in not suffi

ciently covering the hole, considering its proximity to the boiler, where the plaintiff was at work, and also the method and exigencies of that work held, that it is peculiarly for the jury to decide whether he acted recklessly, regardless of his safety, or whether he exercised that degree of care to be reasonably expected in that situation, and under all the circumstances.

"The verdict of a jury is entitled to respect, and should not be disturbed unless it is so clearly wrong as to compel the conclusion that it is the result of prejudice or failure to comprehend the facts and the legitimate inferences therefrom, or is antagonized by some controlling rule of law."

employed at work, jointly with another hand, about four weeks. before the accident happened; thus becoming a good deal familiarized, no doubt, with different phases of employment in the mill. Before his being personally employed in the dye house, he had been in and out of the room where the dyeing was carried on, noticing the men at their work, and assisting them occasionally to some extent.

The dye house contained four kettles or vats, each six feet long and five feet wide, and two feet and seven inches in height above a planking which circled each vat at the floor. The planks, eight or ten inches wide, were laid flatly on the floor, and were "beveled off" from the vat. Each vat, having clamps upon it, required the hole in the floor where it was to be set to be a little larger than the vat would be without such attachments, leaving an open space around the vat, and the planks were used to stop up the opening.

There was an open frame (a structure fitted with slats) designed to be sunk into the vat, upon which wool and blankets were loaded (sometimes the one, and sometimes the other), and then lowered into the vat, to be dyed. The frame was fitted with a hoisting gear, so that it could be swung over and then lowered into the vat, containing boiling-hot dye, and raised up out of the vat when the process of dyeing became completed.

In order to raise the frame out of the vat, the two men in attendance had to do some coupling of hooks with rings connected with the gearing, which necessitated their leaning over the sides of the vat, while facing each other, to a point near the center of the vat; and the plaintiff, while performing his part of such an act, somehow fell into the vat, and, before he could be rescued by his co-worker and another person at work in the same room, was severely scalded and injured thereby.

The plaintiff alleges that he was injured through the fault of the defendant, either in not furnishing reasonably safe and proper machinery and appliances, or by its failure to instruct him in the art of using the machinery, and explaining the dangers incident to its use.

Experience shows us that there is an instinctive proneness in a person who has received an injury to seek for some culpable cause for it other than his own remissness. He can see carelessness in others, but is likely to be blind as to his own. Is not that a fair characterization of the contentions in the present case? The plaintiff's counsel asserts that the floors about the vats were wet, exposing them to some slipperiness. Did not the plaintiff see that himself? Of course he did, as it was a normal and necessary state of things there. But he is reluctant to admit that he did.

Counsel for plaintiff contends that the planking about the vat was an improper appliance, rendering the structure defective and dangerous. Is it not true that, had there been no planking about the vat, its absence could have been just as reasonably criticised as its existence now is? Really, the planking must be an assistance to safety, if used cautiously and as any person's wits would naturally lead him to use it. But, to avoid any imputation of his own fault on this ground, the plaintiff endeavors to deny (although he. really fails to deny) that he ever noticed that the planks were there; and that leads him to the necessity, to preserve consistency, of saying that he does not know whether he put either foot on the planking or not on the day of the injury, or whether he ever did so or not. He says, "I know now there was a plank, because I have heard so many people talk about it." But he feels compelled to say, "I might have noticed it, sweeping around it, sweeping the wool." It appears that he habitually swept the floor three or four times a day, clearing up the waste wool collected around all the four vats. On cross-examination he tries to deny knowledge of the planking, but really confesses knowledge. We can have no doubt that he many times noticed the planks, and their shape and situation.

But it is urged that he was not instructed in the use of the machinery, or informed of its dangers while being used. That should have been as obvious to him on the day of the accident as to the defendant or its employees. There was an overseer and several other employees habitually in the same room with him. If the plaintiff was in any respect uninformed of his duties on the day he began his work (but such does not seem to have been the case) he must have become fully acquainted with them by his constant service in the work for four weeks afterwards, especially as he had been working all of that time in co-operation and face to face with another employee, of greatly larger experience in the same employment, whose example and aid were of themselves a sufficient and the most satisfactory instruction to the newcomer. Their labors were indissoluble, not separate.

The counsel for the plaintiff asserts, arguendo, that the plaintiff was standing on the plank (not making it clear whether he means with two feet on the plank, or only one), leaning over the vat, when his foot slipped off the plank and from under him, and he toppled over into the boiling dye. But the plaintiff himself gives no such account of the accident, but merely says he slipped and went into the vat, without stating any further circumstance about the accident, saying repeatedly that he has no knowledge that he ever stepped on the plank at all in any manner. He says he never