Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-11-30
D. W. Babb VS. oxford Paper co. Re-
TNVtFIIVIIS UNtIf
Reed Nov. 10Th. 1904.


script by Savage. j.
The defendant operated a coal con-
veyer, which consisted in part of an
endless chain of buckets which passed
up through the roof. ever an ash hop
per on the roof. and then down through
openings in the roof and floors below.
The buckets sometimes carried ashes,
cinders and clinkers from the boiler
room to the roof. where they We're
automatically trippel and emptied
their contents into the ash hopper.
The plaintiff was "A servant of the de
PENDANT: He was stationed on the first
floor of the building. and his duty was
to watch the descending line of
buckets. to see that they We're right
side up. and We're clean and free from
cinderS and clinkers. He claims that
while he was at his work, standing
within 4 few inches of the descending
buckets. with his head bent slightly
! forward perhaps. he was hit by piece
of coal, or clinker. or frozen ashes,
which fell from the ash hopper above.
down through the openings in the roof
and the next floor above him. and
which struck him on the head with
him to fall in such a way as to be in
jUrcd.
l. In the original declaration the
only allegation of negligence was that
| the said ash box or receptacle became
| filed and said defendant corporation
n"gligently and carelessly failed and
n, elected to have said ash box or re-
ccptacle. so that the boxes or buckets
failed to properly unloaG in said ash
box or receptacle and ashes and
clinkers We're carried out and over
| the edge of said ash-boX Or
receptacle and fell through the
openings through which the said coal
| carrier descended" 1t is held that an
amendment setting Forth in the new
count that the opening or aperture in
| the second floor of the carrier room
building and the opening or aperture in
the roof of said building through which
the said coal cOnveyer descended was
| larger than necessary for the passag ICE
of said conveyer, and were dangerous.
| hazardous and unsafe because of the
unguarded spaces thus left. all of
which dangerous. hazardous and un-
safe conditions were due to the care
lessness and negligence of the said de-
| PENDANT did not introduce a new cause
Of action. and was properly allowed
2. Photographs. to be admissible as
| evidence. should simply show con-
ditions existing at the time in question
When taken with men in various as
Sumed pOstures. and things in various
assumed situations, in order to illus
| trate the claims and contentious of the
parties. they should not be admitted
| 3. When one enters into the service
Of another, by virtue Of the employ
| ment. he assumes the risk Of al
obvious and apparent dangers which
| are incident to the business and of all
which. one of his age. capacity and ex-
| perienCe. by the exercise of reasonable
care. ought to know and appreciate.
also of all dangers. of which he knows
and which he should appreciate
! whether obvious and visibly apparent
| or not.
| 4. Tho case shows that the plaintiff
knew and appreciated the likelihood
that ashes and clinkers would com,
down from the hopper in the operation
Of the coal conveyar: and though n
| had notified his foreman of the danger
and had been promised that it SHOULD
| he remeded, he was apprised by
| falling ashes. not five minutes befor,
the accident. that the hopper wa,
again running over. Nevertheless
knowing that the hopper was full. an;
that material was likely to come down
he did not exercise reasonable care OF
his own part. in the presence of ;
known danger. in placing himself in 1t.
track: and this was cortributory negli
gence. and bars recovery
n This conclusion. based entirel,
upon the plaintiffs own testimony. i,
so indisputable that the presiding ius
tfce might properly have directed &
verdict for the defendant
Exceptions overruled.
Motion for a new trial sustained
Reed Nov. 2sth. 1904
John II. Riley VS.. Town of Frankfort
Rescript. Emery. ].
The following statement of facts /.