The Providence news. (Providence [R.I.]) 1891-1906, 1905-10-23
COURT
TO GRANT
new TRIAL

BEFORE Chief Justice Douglas and Jus
tees Dubois, Johnson and Parkhurst OF
the supreme court was argued today plain
tins petition for a new trial In INC Case
OF Benjamin c. Sherman. administrator
ON the estate OF Benjamin G. Sherman
.Jr.. against Augustus Smith. & Young
sherman. who resided I'm Portsmouth, was
on March rs. 1904. at work at the coa'ins
station at Portsmouth.
A plank fell lfom an overhead trestle
and struck him. causing death within a
very brief period. Coal was being un'
loaded from a barge when the accident
happened. There had been two towers
Recently and
lowering OF certain hoppers necessary
Two planks which had been temporarily
removes were on the morning previous &c
the accident put back in their old posi-
ton. the men doing that work being en-
ployed at the coaling station. Plaintin $
intestate was at work making some re-
pa IRIS on the hopper under orders IRON
the foreman.
There was n high wind blowing at the
time OF the accident and the planks were
not fastened. IL is claimed by the plain
,ir that the defendant and his foreman
each had knowledge OF the two planks
being placed across the open space and
OF the danger OF their falling az the de
PENDANT and his foreman had on severa
occasions crossed and recrossed them.
Defendant claims that the planks were
used by men for their own convenience
simply and could not have fallen save by
some active agency That the planks
were put back In position without the
knowledge Of any one In authority Is
another claim simply by two fellow ser
wants NJ the plaintiffs intestate.
In the common pleas division OF the SUI
preme court at the conclusion or the
plaintiffs testimony a non suit was asked
tlpon two grounds. % because Il appear
ed that the plaintiffs Interstate was nj
the time OF the accident, I'm the employ OF
Augustus Smith and Company and was
not In the employ OF Augustus Smith in
dividually, and CJ because the plaintiff
had failed 20 show that either August
Smith or Augustus Smith and Company
had been guilty OF negligence.
4 A non-suit was granted on the second
ground. Plaintiff asks for a new trial on
several grounds the chief OF which were.
That the presiding Justice erred I'm ruins
that the act OF removal and replacing the
planks in the question for the temporary
purpose OF allowing the lowering OF the
hopper and the continuance OF the planks
nj the place and IN the condition as tesii-
ned until the accident was the act OF n
fellow servant OF the plaintiff for which
the defendant was not liable. That IL was
error for the court 10 hold that defend
ant had no knowledge, actual or con
etructlve OF the condition OF the planks
when the accident occurred. That the pre-
aiding justice erred In holding that the
dangerous condition OF tho premises
where plaintiffs intestate was employed
at the time OF the Injury 90 him was not
recreated with the knowledge OF or with
the assent OF the persons who had
charge OF the work At hat time and In
holding that the replacing Of the planks
was the act OF a fellow servant.
Defendant argued through counsel thai
there was no need 81 these planks they
being no permanent part OF the structure.
Max levy and W y Sheffield, Jr.. rep
resent the plaintiff and Walter b. Vim
cent the defendant.