The Barre daily times. (Barre, Vt.) 1897-1959, 1911-10-04
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NEW TRIAL DENIED
JOSEPHINE AVERILL
Supreme Court Hands Down Opinion,
Diminishing Petition Of Woman
Who Was Convicted Of Man
slaughter.

slaughter.
A new trial was yesterday Afternoon
denied Josephine Averill of st. Adams
who was convicted of manslaughter in
killing her husband and who was SEN
fenced to IL years at hard labor, an
opinion being handed down by the Yer.
mnt supreme court, Diminishing her petit
ton. no error being found in the pro-
ceedings of the county court and the re-
spondent taking nothing on her excep'
tions.
Petition for new trial was fled in
April and heard at the May term. The
question considered was whether per.
son indicted for murder can be con-
victed of involuntary manslaughter
when the conditions justify it and
Judge Watson rehearsed the various de-
grees under which a person can be sen
fenced in this state and especially the
difference between murder, voluntary
and involuntary manslaughter. The pc.
tition is based on the respondents sur
prise that the court gave any charge on
involuntary manslaughter and her lack
of opportunity to meet that charge.
Judge Watson stated that she should
have been ready for the including of
such a charge and there was no ground
for surprise since this view Of the case
rested almost entirely on the testimony
of the respondent. Consequently, she
was at fault and her argument has no
force.
In the case of Charles I. Davis VS..
Hugh Dandell Windham county, Judge
Powers referred to IAN unwarranted APP
peal to the sympathy of the jury which
should not have been allowed" and hand
ed down an opinion reversing the judg-
ment and demanding the case,
In the Windham county case of A.
Crosby Kennett and Herbert S. Mud
gett VS.. George A. Tudor and Ernest
Tudor, judgment is affirmed except as
TO damages, but those are reversed and
cause remanded. The lower verdict was
that plaintiffs recover of defendants
S7s2.35 with the finding that the sum
due on the Gobson and Ware mort
cages held by William Daley is $751; SO
and the finding that nothing was al
lowed in the verdict as damages on ac-
count Of the defense of the New Hamp-
shire suit of Daley VS.. Kennett. Court
found that the cause Of action arose
from wilful acts of defendants and they
ought to be confined in close Jail" The
opinion was handed down by Judge Row
ell.
In Rutland county case of Robert j.
Roberts ct al VS.. the w. II. Hughes
ct al, in regard to the issue
of certain bonds by the corporation in
which the parties were interested after
a recevership had been named and a
question as to the validity of such bonds.
Judge Mmson handed down an opinion
reversing the judgment and Remaining
the cause with mandate not fled.
Judges Watson and Powers dissent from
a portion of the opinion.
In case of Frances j. Bishop vs. Reads
boro Chair Manufacturing company of
Bennington county, Judge Watson, read
ing, Judgment was affirmed. The lower
courts verdict was made for the plain
tiff on two counts for S9566 on one and
500 on the other for damages done
her house by flying timber from piles
stacked in the yard Of the company and
which were blown by high wind
through the windows and against the
of the house. The evidence
showed that the company was aware Of
the danger and had been asked TO wire
down the piles. The ruling OF the trial
court was without error.
Judgment IS affirmed in favor of the
plaintiff in the case Of Abbie Duggan
VS.. I. j, Heapy, a Montpelier case in
which the opinion was read by Judge
Haselton. Judge Powers dissents be-
lieving that the plaintiff took risks for
which she was herself liable when she
operated the mangle and knew the physi-
cal conditions of her work. The court
holds that in the case OF the injuries
to the plaintiff when she was operating
a mangle in the basement of the Pa
vilion hotel of which T. j. Heapy is
proprietor, she was not protected by
guard rail which should have been upon
the machine but that there was such
moved before the machine was purchased
from a former owner of the hotel aud
had never been replaced. The plaintiff
knew nothing of such rail.
The defendants said they were away
on vacation when the accident occurred
and that the laundress was away and
that the plaintiff had been instructed
not to use the mangle but the testi-
mony conflicted here. The defendant
said the court was bound to furnish
the plaintiff reasonable safety and the
testimony of an expert proved that the
mangle was unsafe to use without the
rail which prevents the fingers being car
ried between the rollers.
When servant does not know of
the risk taken or cannot be shown to
have had full knowledge of the risks
that attend the operators work, he can
not be said to be at fault for his injuries
if there is a defect which the owner
should have remedied. The question
was whether the plaintiff was aware of
the guard rail and assumed the risk
Of operating the mangle without its pro-
lection aud she cannot be said TO have
assumed a danger that she was not
familiar with. The verdict was for ST.
800.
In the Washington county case of
Torrance McKane VS.. NJ. NJ. Gordon and
r. A. Hoar, Judge Powers rehearsed the
case but made no decision in the ex-
pectation that the litigation would he
settled. Hoar and Gordon represented
the plaintiff in case although not as
joint counsel and he claims overcharge.
"A Judgment for plaintiff for $35l.57 was
made in lower court and the case
went to the supreme court on excep-
tions.