Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1910-12-19

IlltlltS llNlT. tilt Icbl. L pom inc pate,
fastened with three bolts. is a double
iron step. two inches thick, surface 14xi6
inches, with hange l.. inch high. and
weighing 20 pounds Above the step Is
having q stroke Of eight inches. reach
ing at its lowest limit 10 ga inches and
as its highest Limit = 81 inches from the
upper step. II is run ty power applied
by shafts, pulley6 and betting. and max
ing from 20 to % strokes, or lees, min
ute, according to the power and number
Of machines in operation at one time.
The bolt log to be split Is ~iaced Oh the
cable. to receive the stroke Of the axe
at the point desired. Care is required to
prevent the stroke throwing out the
block, both by placing it squarcy upon
the step and SC, DIS to prevent a .glancing
stroke or upon knots in the wood.
1t is not questioned that the deceased
was struck by block of wood which he
was attempting TO split on machine No,
Is winch he was operating, The verdict
was in favor of the plaintiff fol. S41,n.
The. case Is before this court on the de-
PENDANTS exceptions to rulinos OF the
presiding justice and his refusal to give
given In the charge: also Oh its general
motion Por a new trial.
J., the blll Of exceptions IS principally
Ginning TO give y series Of six instrnc-
TONS requested by the defendant. cover
var nee between the
defect described in the declaration and
I; pioo. lnu ouuced in evidence: but In
the argument only the first. second and
third are urged. namely:
II. That in order to recover the pla IN
wooden. standard. on the top of which
was large iron plat fastened thereto
by two iron bolts or spikes, actually ex-
listed as a part of the machine.
G. That the plaintiff cannot recover
ueless he shows as q part Of the inachine
an iron plate bolted to the top Of the
wooden standard described In. tho VII:
existing as a part of the machine.
3. That in order TO recover the plain
tin must show the existence OF. plate
made to be fasteiled by two bolts from
which ono bolt Waa gone, allowing the
plate TO move and making 1t likely to
move when the log was struck by the de-
Scending axe -
The alleged variance relates partially
70 the construction of the machine diff
ferently described by the witnesses, and
particularly as tothe standard to which
the bedplate was fastened. and the num-
Der. of bolts used fol, the purpose, de-
machine. But this difference. we think.
was hot such as to constitute variance.
rs o matteg of Law, but affected the es'
Sential question of negligence which was
properly to be determined by the jury
from the evidence
1t is the theory of the plaintiff that the
defendant company failed i'll it's duty, to
the deceased in not providing him with a
4uired of him, because at the time OF
the accident it was out of repair. and It
detective condition was known to the
company. but was not known to Hreha,
by using ordinary care. In this conten-
ton reliance Is placed by the plaintiff
chiefly on the witness Jules Yarecnj.
usually called 'iJulcy," who testihes that
he was present and saw the accident, and
both before and after it he noticed the
plate, which he says was designed to be
bolts. was loose SO that II moved two
inches. one of the bolts being. gone and
the other bent and loose. and that lie had
called the attention Of McDougal' ne
room, to this condition. This evidence, II
unmpcachcd, would authorize the Jury
to find aCtionable negligence on the part
of the defendant in respect to Iireha. I'M
less his own negligence contributed TO
the accident There is direct evidence
that Hreha was, at the time of the acct
dent, in a contest with man operating
the cutter on machine No. 8. to show
who could split the greatest number of
bolts of wood: also that he had received
Il caution from. him that the logs were
apt to kick. unless care was used IN plac-
ing them. and that this advice he resent :
cd as not coming from the boss, and EVIL
denct that, three days before the acct
dent, another fellow workman had adj
place on the machine, and that he, re-
seIltcd this advice But VIC think from
the circumstances disclosed by the evil
dcuce. that the accident was not due TO
q want of due care on the part OF the
plaintiff. for reasons to be given later.
we return to consider whether the jury
were authorized to rely upon the unsup'
ported testimony OF juicy In. finding
having the step fastened only BY ono
crooked and loose bolt so that the block
resting upon it would be likely to e. out
when struck by the power axe, and That
l..
one of the overseers in charge. Three
orkmen Of the company, who were I'M
questionably near Hreha when he was IN,
iured. say that they did not Sc, juicy
day was on q different kind of machine
at some distance away. and that he must
have left half an hour before the accl-
dent as he was not working extra time.
His testimony is directly impeached by
the fact that the step on No. 8 machine
was fastened by three bolts instead OF
two, and that all the bolts were seen In
place Immediately after the accident ny
the workman who succeeded Hreha II,
operating the machine, and the second
overseer of the wood room, McDougai
the overseer in charge. and he, is circum'
Stantially impeached by the almost ire
sistable proof OF his absence from tht
place at the time. shown even By his owl
tomato recorder which shows that ne
left off work at 5 O'Clock that night. HI
statement that he Informed the fore
nan. McDongal. that the plate was loose
is positively denied. 1t seems that ht
was discharged by the company on &C
count of trouble with another workman
All other evidence in reference to th'
construction of the machine and the fas
Jennings of the step to the bedplate SHOW
no defect, except that the bolts wer'
slightly loose from being worn. but no
from an eighth to half an inch. w da,C,
could indicate no negligence of the com
pany in this respect. 1t is true that th'
machine had clements Of danger, som
of which were obvious, and others --hicl
might be readily known by brief expe
rience in its use which were risks Incl e.
Hreha But there is q significant fac
which we think shows the precise man
wooden bolt was found close 70 the ma
/ chine. having small piece split from j
near the end, just above a. knot. whIcl
would Indicate that the stroke of the Ak,
as it reached the knot. threw the Dol
out Of place from the top. and that III
top OF the bolt struck Hreha. II this
theory is correct. it would be an acc:
xIbicJ,