dence; the other, based on the ground of should disclose the truth to her friend Mrs. newly discovered evidence.

Gould, who was at that time giving her

We find it necessary only to consider the clothes for this illegitimate child. The teslatter motion.

stated, it is the opinion of the court that a
new trial should be granted, in order that
the defendant may have an opportunity to
present this newly discovered evidence in
defense of the plaintiff's suit.
New trial granted.

timony, if believed by a jury, will necesThe plaintiff's child was born November sarily defeat this action. To deprive the de1, 1908. Her accusation against the defend- fendant of the right to present it may do, ant was made on oath before the magistrate and it appears to the court is likely to do, November 5, 1908. Proof of the constancy injustice to him. In the exercise of its disof her accusation against the defendant, aft- | cretion, and applying the doctrine as above er it was made, is a condition precedent to the maintenance of her suit against him. Palmer v. McDonald, 92 Me. 125, 42 Atl. 315. She testified that she had never said that this child belonged to anybody else, and there was no evidence at the trial tending to contradict her on this point. But the defendant sets out in this motion, which is sufficient in form and allegation, that since the trial he has discovered a witness, Mrs. Lillian Gould, who will testify that after the (Supreme Judicial Court of Maine. plaintiff had recovered from her confinement she was at the house of the witness to get some baby clothes, and told her that another man, John Byers, was the father of her child, and that "I was going to lay it onto John Byers, but my father wouldn't let me."

We think this testimony is newly discovered within the established rule in this state. It could not be expected that the defendant or his counsel would discover by reasonable diligence a witness to whom the plaintiff had made such a personal and confidential statement.

Ought the court, then, in the exercise of its discretion, to grant a new trial in this case, that the defendant may have an opportunity to present this newly discovered evidence?

WYMAN V. BERRY.

1909.)

(Official Syllabus.)

(106 Me. 43)

Sept. 21,

1. MASTER AND SERVANT (§§ 88, 155, 189, 239*)-RELATION-SERVANT LENT BY THIRD PERSON - VICE PRINCIPAL - DUTY TO INSTRUCT.

The

The plaintiff, who was the servant of a defendant's servant, Wood, for a day's work on third party, was loaned by his employer to the the defendant's farm, under circumstances which warranted the jury in finding that Wood had authority to procure the service. The plaintiff tiff undertook to cut up some straw for bedding. was then 16 years of age. Wood and the plainFor this purpose they used a feed cutter, the power for which was supplied by a gasolene engine. Wood fed the straw into the machine, where it was cut by knives affixed to a shaft, revolving at a speed of about 900 revolutions a minute. The plaintiff was directed to remove the chopped straw after it left the machine, and "The true doctrine is that, before the carry it away in a basket, or baskets. chopped straw, as it came from the spout, so court will grant a new trial upon such called, of the feed cutter either fell on the floor, ground, the newly discovered testimony must or, if the plaintiff was there with his basket, be of such character, weight, and value, con- into the basket. Around the spout was a prosidered in connection with the evidence al- of this flange, at the top, into the revolving jection-a rim or flange-and from the outer rim ready in the case, that it seems to the court knives, was a distance of from 3 to 4 inches. probable that on a new trial, with the addi- The spout was 11 inches wide, and about 16 tional evidence, the result would be chang- inches from top to bottom, and the top of it was about 30 inches from the floor. The knives ed; or it must be made to appear to the were covered by a hood, and were not visible to court that injustice is likely to be done if the plaintiff, in any position he would naturalthe new trial is refused. It is not sufficiently assume in removing the bedding. The plainthat there may be a possibility or chance of tiff had never worked about a feed cutter before, and was not acquainted with its mechanism. a different result, or that a jury might be He did not know the exact position of the induced to give a different verdict. There knives. But he must have known that knives, must be a probability that the verdict would or some cutting apparatus, was within the mabe different upon a new trial. But it is not to take the straw away from the machine; "the chine. The plaintiff was told in the beginning necessary that the additional testimony straw that piled up.' Soon the machine clogshould be such as to require a different ver- ged. The plaintiff was then told "to keep it dict." Parsons v. Railway, 96 Me. 507, 52 clear." No other specific direction was given at

Atl. 1007.

An examination of the testimony of Mrs. Gould, which accompanies the motion, discloses no inherent improbability in her statement. If it be a fact that the plaintiff intended to accuse John Byers as the father of her child, but made the accusation against the defendant because required so to do by her father, it is not unreasonable that she

any time.

The clogging was in the iron rolls which conducted the straw to the knives, and not in the knives themselves. But it is claimed for the plaintiff that he understood that the afterwards, while he was away emptying his straw was clogged in the knives. Some time baskets, straw accumulated on the floor. When he returned he put this into one basket, and then took the other basket, and, placing it bethe straw as it came down; to use his own exfore him, stood in front of the spout, and caught pression, "combed it right down into the bas

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

ket with both hands, dog-paddle style." While principal, for which the defendant is claimhe was doing this, the machine clogged again.ed to be responsible. The plaintiff recovered He noticed that the machine was shaking, and, as he says, he "went to pull the straw away,' a verdict, and the case comes up on defendand got his fingers into the knives. The plain- ant's exceptions and motion for a new trial. tiff complained of want of proper instructions, We will consider the questions arising under and the defendant, among other things, said the the motion. plaintiff was guilty of contributory negligence. Held: (1) That though the plaintiff was loaned to the defendant by his own employer, the defendant owed to him the duties which a mas

ter owes to a servant.

(2) That in giving, or failing to give, warning of hidden dangers, Wood was not a fellow servant of the plaintiff, but was a vice principal, and as such represented the master.

(3) That the defendant was not bound to give the plaintiff warning of all possible, concealed, or unknown dangers incident to the use of the machine, but only of such as might expose him to injury in the course of his employment; that is to say, while doing his work in the way he was told to do it, if told at all, or, if not told, in any way in which he might reasonably be expected to do it, taking into account his age, intelligence, and experience.

(4) That the plaintiff was guilty of contributory negligence.

Servant. Cent. Dig. §§ 310, 427-435, 437-448, 701-742, 749, 750; Dec. Dig. §§ 88, 155, 189,

239.*]

(Additional Syllabus by Editorial Staff.) 2. MASTER AND SERVANT (§ 265*)-INJURY TO SERVANT-ACTION-BURDEN OF PROOF.

In an injury action by a servant, the burden is upon him to show, not only the master's negligence, but affirmatively that no want of due care on his own part contributed to the injury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 877-908; Dec. Dig.

265.*]

3. NEGLIGENCE 85*)-CHILDREN.

The age and intelligence of a person are important factors in determining whether due care has been used, and a person 16 years old is bound to use that degree of care which ordinarily prudent persons of his age and intelligence are accustomed to use under like circumstances. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 121-129; Dec. Dig. § 85.*] Exceptions from Supreme Judicial Court, Kennebec County.

It appears that the defendant resides in New York, but owns a farm in Litchfield, which he visits several times a year. In 1906 there was living on the farm one Wood and his wife. Wood was employed by the defendant to take care of the stock and do whatever was necessary about the buildings, and to work on the farm whenever he could. In the defendant's absence he had charge of the farm, but, as the defendant claims, under his specific directions.

In May, 1906, the plaintiff, then 16 years old, was employed by one Frank Berry, a neighbor, and a relative of the defendant. Frank Berry, by arrangement with the defendant, was accustomed to work at times on [Ed. Note.-For other cases, see Master and the defendant's farm. Wood and Frank Berry were in the habit of "changing works"; Wood working for Berry, and at other times Berry working for Wood. But whether the defendant had knowledge of, and consented to, this practice is in dispute. For several days in the early part of May Frank Berry took the plaintiff with him to work on the defendant's farm, doing work which he had agreed with the defendant to do. May 11th Wood asked Frank Berry to let him have the plaintiff to work for him that day, and Berry consented. According to this arrangement, the plaintiff went to the defendant's farm and worked with Wood. Though working for Wood, the plaintiff remained the servant of Berry. Berry merely loaned him to Wood. After doing other things, Wood and the plaintiff undertook to cut up some straw for bedding. For this purpose they used a feed cutter, the power for which was supplied by a seven-horse power gasolene engine. Wood fed the straw into the machine, where it was cut by knives affixed to a shaft, revolving at a speed of about 900 revolutions a minute. The plaintiff was directed to remove the chopped straw after it left the machine, and carry it in a basket, or baskets, about 20 feet, and put it in a pile in the tieup. The chopped straw, as it came from the spout, so called, of the feed cutter, either fell on the floor, or, if the plaintiff was there with his basket, into the basket. Around the spout was a projection-a rim or flange and from the outer edge of this flange, at the top, into the revolving knives, was a distance of from 3 to 4 inches. The spout was 11 inches wide, and about 16 inches from top to bottom, and the top of it was about 30 inches from the floor. The knives were covered by a hood, and were not visible to the plaintiff, either standing erect, or in any position he would naturally assume in

Action by Herbert Elmer Wyman, by next friend, against Albert P. Berry. Verdict for plaintiff, and defendant excepts, and moves for a new trial. Motion sustained.

Action on the case to recover damages for personal injuries sustained by the plaintiff, and caused by the alleged negligence of the defendant's vice principal. Plea, the general issue. Verdict for plaintiff for $2,166.63. The defendant excepted to certain rulings during the trial, and also filed a general motion for a new trial.

The case is stated in the opinion.
Argued before WHITEHOUSE, SAVAGE,
SPEAR, KING, and BIRD, JJ.

Guy A. Hildreth, for plaintiff. O. B. Clason and Geo. W. Heselton, for defendant. SAVAGE, J. Action on the case for personal injuries alleged to have been caused by the negligence of the defendant's vice

removing the bedding. The plaintiff had nev- | How an elevator could have been of service er worked about a feed cutter before, and on the occasion in question is not apparent. was not acquainted with its mechanism. The hood was not removed while he was present, and he did not know the exact position of the knives. But he undoubtedly knew that knives, or some cutting apparatus, was within the machine. While engaged in removing the bedding, the plaintiff put his right hand into the spout, under the flange far enough so that four fingers and a part of the thumb were cut off.

The defendant contends, in the first place, that Wood had no authority to hire the plaintiff from Frank Berry; that Wood was an agent with expressly limited powers and duties; that he had no duties to perform which required the assistance of others, and from which a power to hire could be implied, except in the use of the feed cutter; and that for this service the defendant had already provided other men. In short, the defendant claims that Wood was merely a farm servant, acting at all times under specific directions. The plaintiff, on the other hand, says that Wood was a vice principal, that he had authority to "change works" with Berry, or at least that he had authority, or was held out by the defendant as having authority, to hire a man to do such work as the plaintiff was employed by him to do.

We will not undertake to analyze, or give a synopsis of, the voluminous evidence on this much contested point. It is enough to say that if the defendant's contention rested upon this point alone, we should not disturb the verdict.

If, however, there were any risks incident to the use of the machine as it was, which were not known by the plaintiff, or which were not obvious to nor appreciable by him, especially considering his youth and experience, and which would expose him to danger in the course of his employment, it was the defendant's duty to warn him of them, and give him appropriate instructions so as to secure his safety. Campbell v. Eveleth, 83 Me. 50, 21 Atl. 784; Wormell v. M. C. R. R. Co., 79 Me. 397, 10 Atl. 49, 1 Am. St. Rep. 321; Welch v. Bath Iron Works, 98 Me. 361, 57 Atl. 88; Erickson v. Consolidated Slate Co., 100 Me. 107, 60 Atl. 708. And this duty the defendant could not delegate to another so as to escape responsibility. Welch v. Bath Iron Works, supra; Donnelly v. Granite Co., 90 Me. 110, 37 Atl. 874. In giving, or failing to give, warning of hidden dangers Wood was not a fellow servant of the plaintiff. In this particular he represented the master. As to the duty of giving instructions, he was a vice principal. The test of vice principalship is not the relative grade of the servants employed, but the nature of the duty to be performed. Small v. Allington, etc., Mfg. Co., 94 Me. 551, 48 Atl. 177. Therefore the defendant is to be held responsible for any failure of Wood to give the plaintiff requisite instructions.

But in this connection it should be said that the defendant was not bound to give the plaintiff warning of all possible, concealed, or unknown dangers incident to the use of the machine, but only of such as might expose him to injury in the course of his employment; that is to say, while doing his work in the way he was told to do it, if told at all, or, if not told, in any way in which he might reasonably be expected to do it, taking into account his age, intelligence, and ex

We assume, then, that the plaintiff was properly hired by Wood of Frank Berry to do the defendant's work. And though the plaintiff was technically still a servant of Frank Berry, yet having been put by Berry to work for the defendant, by authority of the defendant he became, as to that work, the servant of the defendant, and the defend-perience. ant owed to him the duties which a master owes to a servant. This proposition is not denied, nor can it be successfully. Coughlan ▼. Cambridge, 166 Mass. 268, 44 N. E. 218; Clapp v. Kemp, 122 Mass. 481.

According to the version of the facts as given by the plaintiff, he was told in the beginning to take the straw away from the machine "the straw that piled up." Very soon the machine clogged once, as it seems The plaintiff claims that the defendant it was apt to do, if a large or entangled failed to perform the duties he owed to him, "wad" of straw was fed into it. It is conin two respects: First, that the machine as ceded that the clogging was in the iron rolls it was being used was unsafe, in that it was which conducted the straw to the knives, and being used without an elevator; and, second- not in the knives themselves. But it is ly, that the defendant did not instruct him claimed for the plaintiff that he understood with regard to the machine, and did not that the straw was clogged in the knives. warn him of the dangers attendant upon its He says that at the time of this clogging use. As to the first proposition, only a word Wood told him "to keep it clear." He testifies need be said. The machine was so construct- to no other or further direction by Wood. ed that an elevator could be used with it to Some time afterward he emptied his baskets, carry away matter after it was cut. Such and when he came back a pile of straw had an elevator would presumably. be useful accumulated on the floor. He put this into when ensilage was being cut up. But the one basket, and in so doing he cleaned up defendant was under no obligation to use the nearly all that was on the floor. He then elevator. He might adopt any other means took the other basket, and, placing it before he saw fit for taking away the cut-up matter. | him, stood in front of the spout and caught

amendable, it should be amended before being [ quash the record of the proceedings of the sent up.

[Ed. Note. For other cases, see Certiorari, Cent. Dig. §§ 139-144; Dec. Dig. §§ 55, 56.* 3. CERTIORARI (8 33*)-RIGHT TO REMEDYty commissioners certified up the full record INTEREST IN PROCEEDINGS.

There is, however, at the threshold of the Exceptions from Supreme Judicial Court, case another question to be determined, the Cumberland County.

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes