planks resting on blocking. The left end of this table, viewed from the operator who stood in front of it, was connected with a run provided with rolls over which the logs were pushed by hand lengthwise from the ground upon and along the table. Against the side of the table opposite the operator stood three heavy logs or posts set firmly in the ground, and extending above the table six or eight feet, carrying on their tops the bearings or boxes which held the main shaft. One of these posts stood within a few inches of the right end of the table, another toward the left end and eight feet from the first and between the two a third, the exact location of which is in controversy. At the right of this middle post and 1 foot from it, according to the plaintiff, or 21⁄2 inches from it, according to the defendant, the saw frame or ladder was suspended from the main shaft in such a manner that the circular saw attached to the lower end could be swung forward and backward in the slot extending part way across the table by means of an oxbow bolted to the ladder, and extending forward toward the operator. The distance from the saw to the right end of the table was the exact length of a bolt, 44 inches. Four men were employed in working the machine, two at the left with cant dogs to push the logs upon the table and hold them in place, one to operate the saw, and one at the right to keep the end of the log flush with the end of the table, and to remove the bolt. In operation the logs were pushed upon the table, the larger end ahead, the scarf was first sawn off, then the various bolts, and, if the smaller end was less than six inches in diameter, that portion was used for cordwood.

to show that the distance from the saw to the post on the left was only two or three inches, that four or five inches at the right of the saw was an additional post firmly set in the ground and extending above the table, placed there to serve this very purpose, and also that guides or guards were attached to the back of the table, the one at the left of the saw extending from post to post, being a timber four inches square, and the one at the right from post to post a plank two by six set on edge.

Here was a sharp issue of fact, the plaintiff admitting that, if the fourth post and the guards were there at the time of the accident, the table was reasonably safe, and the defendant admitting that, if they were not there, it was negligently constructed.

The jury found for the plaintiff upon this as upon all other issues, and their verdict the defendant asks to be set aside. It is unnecessary to consider the question of the defendant's care or want of care in the construction of the machine. The plaintiff is in this dilemma. If the defendant was not guilty of negligence in this respect, the plaintiff admittedly cannot recover. If the defendant was guilty of negligence, the plaintiff is precluded from recovering because of his own knowledge of the careless construction and his assumption of the attendant risks. This is a fatal point in the plaintiff's case.

The particular danger on which he bases his right to recover was the lack of protection against the tendency of the saw to draw the logs to itself. But this was no concealed or hidden danger. It was obvious as soon as he began to operate. He felt the tendency to draw. He admits it. He saw As the saw was hung somewhat higher the lack of protection; and with his experithan the table, it had a natural tendency in ence he must or at least should have known cutting, to draw the logs toward and under the risk attendant upon the sawing of a it, a tendency which was stronger in the stick resting against only one support. The smaller logs, and which could be resisted only plaintiff was not an inexperienced boy, but a by having proper guards and supports on the man 30 years of age, of intelligence, and of back of the table. The failure of duty al- some experience with circular saws. He leged by the plaintiff in his writ is that "the was the owner of a portable sawmill, and saw table was not provided with any stand- had himself operated it six weeks or more ards or upright pieces sufficiently near the during the previous winter, and in that time path of said saw, so that a log or bolt could must have learned its traits. While that rest against the same and be held steadily in worked on a somewhat different plan from place and prevented from swinging in upon this, yet the difference and its effects must said saw." The plaintiff admits the exist- have been obvious to him. He had asked for ence of the three posts before described, no instructions before beginning work nor but says they were insufficient for the pur- during its progress. Though Mr. Weston, pose, as there was a space of 44 inches at the foreman, stood near by, he apparently the right of the saw, and of one foot at the needed none. The foreman could have told left without any support or guard whatever, him nothing that he himself could not see so that, in sawing a stick of such a length and appreciate. In his writ he does not that it reached from the right end of the complain because no instructions were given table to a point between the saw and the him. He began and continued the work withpost on the left, it had no support whatever out protest or objection, confident of his own except at the extreme right end, and the knowledge and experience. There is evidence action of the saw tended to pull it in toward that he even showed impatience when cauitself, taking with it the hand of the opera- tioned more than once by the foreman not tor resting upon the stick. The defendant to jump the saw and not to keep his left

"When one enters into the service of another, by virtue of the employment he assumes the risk of all obvious and apparent dangers which are incident to the business, and of all which, by the exercise of reasonable care, one of his age, care, and experience ought to know and appreciate. He also assumes the risks of all dangers of which he knows, and which he should appreciate | 217.*] whether obvious and visibly apparent or not."

Babb v. Paper Co., 99 Me. 298, 59 Atl. 290. See, also, Mundle v. Mfg. Co., 86 Me. 400, 30 Atl. 16. The application of this firmly established principle to the case at bar pre

[Ed. Note.--For other cases, see Trial, Cent. for plaintiff. Verrill, Hale & Booth and Dig. §§ 359-367; Dec. Dig § 159.*] Cleaves, Waterhouse & Emery, for defendants.

Exceptions from Supreme Judicial Court, set for the purpose of gauging the distance, York County, at Law.

It is alleged that the striking hammer used | that it should not be used in connection with on that occasion was defective and unsafe; any work that he was required to perform. and this action was brought by the plaintiff It does not appear that he ever received from to recover damages for the injury suffered by them any request to continue in this service him on account of the alleged failure of duty until another and a suitable hammer should on the part of the defendants in not provid-be supplied in place of the one alleged to be ing suitable tools to be used in connection defective, nor any assurance whatever that with the service required of him.

The plaintiff was 46 years of age. He had worked as a stone mason for 25 years, and his experience as a tool sharpener comprised a period of 15 years. He had learned from his experience as a blacksmith that steel implements were rendered brittle by overheating and overhardening in the process of manufacture or sharpening, and that, in the use of such tools, pieces of steel were liable to be broken off and fly from the hammer as well as from other tools. A week or 10 days before the accident he put a new handle into this defective hammer, and he states in his testimony that he noticed the fire cracks or checks on the face of it, and knew it had been burned and was brittle, and that it was liable to break and chip whenever it was used. The plaintiff knew that the other striking hammer in use had a round face, while this one it has been seen had a square face; the corners being slightly chamfered. When the fellow servant came up to do the striking, the plaintiff admits that he neither inquired nor looked to see whether the hammer in his hands was the round-faced one, or the squarefaced one with the fire cracks on it. He knew that it must be one or the other, but even when the striker gently laid it upon the head of the bull-set, held by the plaintiff, for the purpose of "getting the distance," the plaintiff did not look to see which one it was. He states in his testimony, it is true, that he supposed it was the good hammer that the striker was using, but he gives no reason * for this assumption. For aught that appears, it was as likely to be the defective hammer as the good one. He testifies that after that piece of steel had gone into his eye, at a time when he must have been suffering severe pain, he "noticed that it was the flat-faced hammer with the cracks on it." But he admits that he afterward said to some one at the hospital that he "couldn't tell until he saw it" whether the piece of steel that flew into his eye came from the hammer or the bull-set.

With respect to the defendants' knowledge of the defective condition of the hammer, the plaintiff testifies that on one occasion, when the workmen "were all sitting around eating their dinner, somebody spoke about this hammer being in bad condition, the face of it being cracked, and the foreman said it was a new hammer when they started the job." There is no evidence that the plaintiff himself ever gave the defendants or their representative in charge of the work any information or made any complaint in regard to the defective condition of the hammer, or

any other or different hammers would be used in connection with the service required of him. According to the testimony, the plaintiff himself appears to have had more precise and definite knowledge in regard to the alleged defects in the hammer in question than any representative of the defendants. He states that he could plainly see "somewhere in the neighborhood of a hundred" fire checks or cracks on the face of this hammer. He was a man of mature years and a workman of large experience, both as a stone mason and as a blacksmith in sharpening tools. He knew that such fire cracks indicated overhardening and brittleness, and that, when a heavy blow is struck with such a hammer upon other steel implements, chips of steel are liable to fly from it. Even if a hammer is made of suitable material and properly tempered, it is a matter of common knowledge that, when it is used with great force upon other steel implements, small chips or scales of steel are liable to break off and fly from one implement or the other. In Hopkinson Bridge Co. v. Burnett, 85 Tex. 16, 19 S. W. 886, cited in 4 Thompson on Negligence, 4613, the "flying" or "chipping" of these scales or splinters of steel from hammers sufficiently hardened to be used in striking against steel was held to be one of the ordinary risks incident to the employment.

But, in considering the exceptions to the ordering of a nonsuit, full probative force must be given to all of the plaintiff's testimony. It is accordingly assumed that the plaintiff's grievous injury was caused by a small piece of steel which was splintered off from a defective hammer used in a proper manner by a fellow servant.

It has been seen that the plaintiff was not placed in a position where he was exposed by the nature of his duties to any undisclosed or unknown dangers. The precise condition of the defective hammer was not concealed from him, nor the danger of using it unknown to him. The implement had been in his own hands within 10 days prior to the accident, while he was fitting a new handle to it, and he admits that he then discovered those fire checks upon the face of it, which to his experienced eye were an infallible indication that the steel had been rendered brittle by overheating in the process of manufacture. The conclusion is therefore irresistible that he fully understood and appreciated all the dangers to which he would ordinarily be exposed arising from the use of an overhardened hammer in connection with any branch of his work. Under the circumstances of this case, upon a well-settled

YOUNG v. CHANDLER. (Supreme Judicial Court of Maine. 1908.)

therefore, be deemed to have voluntarily as-
sumed the risks incident to his employment
after full knowledge of the defective condi-
tion of the implement used in connection
with the service which he was required to 1. APPEAL AND ERROR (§ 999*)
VERDICT.
perform.

not be disturbed.

(104 Me. 184)

June 3,

REVIEW

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3912; Dec. Dig. § 999.*] 2. APPEAL AND ERROR (§ 1215*)—REVERSALNEW TRIAL-DIRECTING VERDICT.

When, by a former decision under the evithat the title to certain property is in the dedence then presented, it has been determined fendant, and not in the plaintiff, then in a second trial of the same action, involving in part such property, if there is nothing in the evidence at the second trial to change the legal aspect of such title, it is proper for the presid

When, on a motion to have a verdict set This rule of law has been forcibly illustrat- aside, it appears that the issues were peculiarly ed and fully considered in many of the recent within the province of the jury, and the evidence decisions of this court. In Conley v. Ex-shows no sufficient basis for interfering with press Co., 87 Me. 352, 32 Atl. 965, it is said in the conclusions of the jury, the verdict will the opinion, on page 356 of 87 Me., on page 966 of 32 Atl.: "It is now settled law in this state that if a servant continues in the service of his employer after he has knowledge of any unsuitable appliances, in connection with which he is required to labor, and it appears that he fully comprehends and appreciates the nature and extent of the danger to which he is thereby exposed, he will be deemed to have waived the performance of the employer's obligation to furnishing justice to instruct the jury to leave such suitable appliances, and to have voluntarily assumed all risks incident to the service under these circumstances. Such an assumption of the risks of an employment by a servant will bar recovery independently of the principle of contributory negligence." See, also, Cunningham v. Iron Works, 92 Me. 501, 43 Atl. 106; Mundle v. Hill Mfg. Co., 86 Me. .400, 30 Atl. 16; Welch v. Bath Iron Works, 98 Me. 361, 57 Atl. 88.

In 4 Thompson on Negligence, §§ 4707, 4708, the author says: "It is a part of this doctrine that the servant assumes the risks of known defects in machinery, tools, appliances, etc., or of improper appliances furnished for the performance of a particular task, or where no proper appliance is furnished, although the defect or danger results from the negligence of the master.

"A servant assumes the risks of injuries from simple and ordinary appliances and methods, the nature of which he understands, or which is easily understood. It is a part of this doctrine that the duty of inspection by an employer of the appliances used by his employés does not extend to the small and common tools in everyday use, of the fitness of which the employés using them may reasonably be supposed to be competent judges." It is accordingly the opinion of the court that the nonsuit was properly ordered. The evidence presented by the plaintiff with all the inferences which the jury could justifiably have drawn from it was insufficient to support a verdict in his favor, so that it would have been the duty of the court to set aside such a verdict if it had been rendered. Under such circumstances, it is the established rule of procedure in this state that the court is not bound to submit the case to a jury, but may properly order a nonsuit. This rule of practice is too well settled to require the citation of authorities in support of it.

Exceptions overruled.

property entirely out of consideration.
[Ed. Note.-For other cases, see Appeal and
Error, Dec. Dig. § 1215.*]

3. APPEAL AND ERROR (§ 1064*)-HARMLESS
ERROR-INSTRUCTIONS.

When, in an action of tort, it is apparent that the jury were not misled by the instructions of the presiding justice in reaching the conclusion that certain articles of personal property belonging to the plaintiff were intentionally abandoned by the plaintiff, and that the defendant was not chargeable with any violent act of dominion over them, exceptions to the in

structions will be overruled.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1064.*] 4. APPEAL AND ERROR (8 1068*)-HARMLESS

ERROR-INSTRUCTIONS.

This case was formerly tried at the February term, 1906, of said superior court, and at the conclusion of the plaintiff's testimony the presiding justice ordered a verdict for the defendant, and the plaintiff excepted. The law court sustained the exceptions, set the verdict aside, and ordered a new trial. 66 Atl. 539. The case is reported in 102 Me. 251, 66 Atl. 539. The case was again tried at the April term, 1907, of said superior court. Plea, the general issue as in the former trial. Verdict for defendant. The plaintiff then filed a general motion to have the verdict set aside, and also during the trial excepted to certain instructions given to the jury by the presiding justice. Certain of the exceptions were not considered by the law court. Argued WHITEHOUSE, PEA

before