front of the heated drum and about half an inch from it, was a board about a foot wide, called an apron or feed board. The small rollers above were so close to the heated drum that a tablecloth placed upon the apron against the revolving drum would be carried up and gripped between the drum and the small rollers, and dried and smoothed as it was carried through. It was the duty of the operative to keep it smooth by holding it on the feed board, and in some instances to retain her hold upon the corners of it until it was within an inch of the point of contact with the upper rollers.

This mangle had been used by the defendant and his predecessors in the same laundry for more than three years prior to the accident without any guard rail or protection bar to prevent the hands of the operative from being caught between the cylinders. Indeed, it appears from the evidence introduced by the plaintiff that the work which this machine was designed to perform could be more easily and rapidly done without any guard rail or protecting rod, and that this method of operating it was accordingly preferred by the operatives as well as by the proprietors.

in support of the plaintiff's contention, on mo tion of the counsel for the defendant, the presiding judge ordered a nonsuit to be entered. The case comes to the law court on the plaintiff's exceptions to this ruling; but a careful examination of all of the evidence in the light of established principles of law leads irresistibly to the conclusion that nonsuit was properly ordered, and that the exceptions must be overruled.

The doctrine of the assumption of risks by laborers who engage to operate unguarded machinery similar to that in the case at bar, the dangers of which are manifest and readily discernible, has been repeatedly examined and carefully considered in the recent decisions of this court, and no extended discussion of the principle is now required. It was the primary duty of the defendant to use ordinary care to provide and maintain reasonably safe and suitable machinery for the plaintiff to operate, so that, by the exercise of due care on her part, the plaintiff could perform the service required of her without liability to other injuries than those resulting from simple and unavoidable accidents. But the rule is now equally familiar and well settled at common law that if an operative continues in the service of his employer after he has knowledge of the unguarded condition of any machinery in connection with which he is required to labor, and it appears that he fully understands and appreciates the nature and extent of the perils to which he is thereby exposed, he will be deemed to have waived the performance of the employer's obligation to provide suitable guards, protecting rods, and hoods for dangerous machines, and to have assumed the risks of an employment to which he has thus voluntarily and intelligently consented. Cunningham v. Iron Works, 92 Me. 511, 43 Atl. 106, and cases cited. If the operative "does not ask for fur

The plaintiff had worked in this laundry at different times for more than a year, and for about four weeks before the accident had constantly operated this mangle. Prior to this month of steady work upon it, she had occasionally operated it with the assistance of another person during the year or more of her employment there, and during her entire service in connection with this mangle no guard rail was ever used upon it. Her description of the mangle and the proper method of operating it, as given in her testimony, discloses a full knowledge and appreciation on her part of the nature and extent of the danger to which she was exposed in operating it without a guard rail. In cross-ther safeguards or otherwise so conducts examination she testified that she could see the machine in front of her, and knew, if she put her hand in there, she would get hurt, but added: "I didn't put my hand in there. It went in accidently.” It also appears that the accident happened during a violent thun-ufacturing Co., 92 Me. 569, 43 Atl. 512, 69 der shower, and there is evidence tending to show that, after the accident, the plaintiff stated that she jumped at a flash of lightning, and put her hand into the mangle, and that "there was nobody to blame but herself."

In this action to recover damages for the injury received by the plaintiff, it is contended in her behalf that the mangle in question upon which she was engaged to work was structurally defective and unsuitable by the reason of the absence of a guard rail or protection bar, and that there was a failure of duty on the part of the defendant in this respect and also by his omission to give the plaintiff instruction and warning in regard to the perils incident to the operation of the machine without a guard rail.

himself as to assure his employer that he is content with the machinery and appliances as they are, and will himself take the chance of injury, he cannot after an injury transfer the risk to his employer." Jones v. Man

Am. St. Rep. 535; Dempsey v. Sawyer, 95
Me. 298, 49 Atl. 1035; Cowett v. Woolen Co.,
97 Me. 546, 55 Atl. 494; Babb v. Paper Co., 99
Me. 303, 59 Atl. 290.

In O'Connor v. Whittall, 169 Mass. 563, 48 N. E. 844, it was held that, if a boy who is set at work upon a dangerous machine appreciates and understands the risk and continues to work on the machine without objecting to the want of a guard, the fact that the machine might have been safer with a guard is immaterial.

Although there is no reported decision of the law court in this state involving the application of this familiar doctrine to an unguarded or imperfectly guarded laundry mangle, several cases have been determined at

feeding collars to the machine, her finger was caught in the buttonhole of a collar and her hand drawn between the rollers and injured. The plaintiff was between 14 and 15 years of age, and at the time of the injury had worked on the machine about 6 weeks. It appeared that she fully understood and appreciated the dangers to be apprehended from operating the machine, and it was accordingly held that she assumed the risk incident to the employment.

In Greef et al. v. Brown, 7 Kan. App. 394, 51 Pac. 926 (1898), it appeared that there was a guard board in the defendant's laundry building, which was designed by the manu

machinery and situations closely analogous to those at bar, and in other jurisdictions the question has been repeatedly the subject of judicial inquiry by courts of last resort. Gaudet v. Stansfield, 182 Mass. 451, 65 N. E. 850, was an action at common law to recover damages for an injury received by the plaintiff, a French girl 19 years of age by having her hand caught by the revolving rolls of a steam mangle upon which she had been at work for three weeks, and upon which there appears to have been no effectual guard or protection rod to prevent the hands of the operative from coming in contact with the roll. But there was a brass guide on the edge of the apron over which the clothes were pass-facturer of the mangle used by the defended by the operator and carried between the ant to protect the operator, but it had never roll and the steam chest. The machine was been used, and the defendant was wholly not boxed in, and all parts of it could be ignorant of its existence. The plaintiff, a seen. It is said in the opinion that the dan- girl 17 years of age, had been at work on ger of having her hands drawn into the roll the unguarded machine for a day and a half, if she put them outside of the brass guide when her hand was caught between the cylwas an obvious one of which no warning was inders, and injured. It was held that, as necessary, and that, being a person of aver- the danger was entirely open and apparent age intelligence, she was chargeable with to even casual observation, no warning or knowledge of it. It was accordingly held | caution could have increased her knowledge that a verdict for the defendants was prop- of it, and that she must be deemed to have erly ordered. In Burke v. Davis, 191 Mass. assumed the risk. 20, 76 N. E. 1039, 4 L. R. A. (N. S.) 971, 114 Am. St. Rep. 591, the protecting rod and guard blade did not afford complete protection, but the plaintiff, a girl 17 years of age, was held to have assumed the risk of the accident which happened to her by having her fingers caught between the cylinders and the rollers. In the opinion the court say: "The plaintiff concedes in argument that, if this mangle had not been provided with a guard as above stated, she could have no remedy, for the reason that the danger of the operator's hands being dragged between the rollers was an obvious danger, and it was apparent that the only way for her to avoid danger was to keep her fingers and hands away from the rollers. She would have assumed the risk of such an accident." In Hanson v. Hammell et al., 107 Iowa, 171, 77 N. W. 839 (1899), the plaintiff's hand was injured by being caught between the rollers of an ironing mangle while she was putting beeswax on one of the rollers. She knew the danger of having her hand caught, and knew that the guard in front of the rollers had been removed to enable her to perform the work required of her more readily. It was held that, as the particular peril attending the performance of the work as she did it was apparent to her and fully comprehended, no admonition on the part of the defendants was necessary, and she was not entitled to recover. See, also, Hoyle v. Steam Laundry Co., 95 Ga. 34, 21 S. E. 1001 (1894).

In Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. 286 (1887), there were no guards in front of the rollers of an ironing machine which the plaintiff was operating, and, while employed in

75 A.-4

In Stager v. Laundry Co., 38 Or. 480, 63 Pac. 645, 53 L. R. A. 459 (1901), the operative was injured by having her hand caught between the rollers and the drum of a mangle, called the "Wendell Annihilator," upon which she was at work, and in the action for damages her contention was that the guard plate was too high, allowing her hand to pass under it into the machine, and that she would not have received the injuries if the guard plate had been properly adjusted. She testified that she had worked at other mangles without any guard rail, and did not realize the nature and extent of the danger in operating this one because she relied upon the guard plate for protection. Upon this state of facts, the court declined to say as a matter of law that she assumed the risk by continuing in the service, and held that a nonsuit was properly denied. In the opinion, however, the court say: "Now, it is urged that the risk to which the plaintiff subjected herself was both an incident to the business and obvious. The authorities appear to be uniform and conclusive that, where a machine similar to the Wendell Annihilator in principle is operated without a guard plate, the operator assumes the risk; for in such case the method of operation is known and the peril patent."

In the case at bar it has been seen that the plaintiff was a woman of mature age with at least average intelligence. She had worked in this laundry for more than a year, and both by observation and actual experience had obtained full knowledge of the method of operating a mangle without a guard rail and full opportunity to ascertain and appreciate the dangers incident to the use of such

Upon consideration of all the evidence introduced by the plaintiff, examined in the light most favorable to her contentions, it is the opinion of the court that the danger incident to the operation of the unguarded mangle was so manifest and so fully understood by her that she must be deemed to have as-mitted $23.60 was supplemental, and not comsumed the risk of the employment to which she thus understandingly consented. Exceptions overruled.

objection taken in this case, and the parties are dissatisfied, the objection should be made when the bond is presented for execution. If executed under constraint, the constraint will destroy it. But when it is voluntarily entered into, and the principal enjoys the benefits which it is intended to secure, and a breach occurs, it is then too late to raise the

without prejudice to the right to bring a new | 409, 19 L. Ed. 937: "If a bond is liable to the action on the bond, and that the defendant recover of the plaintiffs the costs of court, to be taxed by the court. But if the court shall rule that the bond may not be treated as a statute bond, by regarding said clause as surplusage, then I rule that the bond is good at common law, and I award that the plaintiffs recover of the defendants the sum of seventeen hundred and ninety dollars and ninety-question of its validity. The parties are essix cents ($1,790.96), with interest thereon from February 15, 1907, debt or damage, and the costs of reference, taxed at $6.48, and the costs of court, to be taxed by the court." The question presented is not whether Bennett, as collector, could have been required to give this bond, as involved in Smith v. Randlette, 98 Me. 86, 56 Atl. 199, for it was given voluntarily.

Nor is the question, we think, whether this bond might not be held binding upon the obligors as a statute bond, notwithstanding this clause in excess of what the statute requires. Here the defendants claim that they are not liable for the breach of that part of the bond which required Bennett to "settle in full with said town on or before February 1, A. D. 1907." Why not? Their answer evidently is that, if they had tendered the bond without this provision, the town could have legally required nothing more, as it would then have been a statute bond; hence this

clause should be disregarded as surplusage.
But they did not tender such bond.
gave this.

They

We know of no provision of statute which makes such a bond as this void. The purpose of the clause for an early and full settlement with the town is neither unlawful nor immoral, but commendable. The defendants had a right to give a bond containing such a clause, if they saw fit, and the town had a right to accept it, if given. There is no sug

gestion of coercion or duress of the defendants. Bennett accepted the office of collector upon that express condition that he should settle in full on or before February 1, 1907.

The inference is fair that his compensation was materially increased because of that special obligation. The defendants' bond is a voluntary contract on their part with the town, founded upon a sufficient consideration, and intended to serve a lawful purpose.

topped from availing themselves of such a defense. In such cases there is neither injustice nor hardship in holding that the contract as made is the measure of the rights of the government and of the liability of the obligors."

It is the opinion of the court that the bond in suit should be treated in this action as good at common law.

Accordingly the entry must be, in accordance with the referee's findings:

Judgment for the plaintiffs for $1,790.96, with interest thereon from February 15, 1907, and the costs of reference, taxed at $6.48, and the costs of court, to be taxed by the court.

(105 Me. 529)

CURRIE V. BANGOR & A. R. CO. (Supreme Judicial Court of Maine. Aug. 13, 1909.)

1. EMINENT DOMAIN (§ 317*)—PUBLIC RIGHTS

-PRIORITY.

Public rights acquired by the exercise of eminent domain are paramount to private rights. [Ed. Note.-For other cases, see Eminent Domain, Dec. Dig. § 317.*]

2. HIGHWAYS (§ 7*)-PERMISSIVE USE-PRESCRIPTIVE RIGHTS.

Where the use of a road has been permissive and by the indulgence and license of the owner of the land over which the road passes, such permissive use, no matter how long continued, does not create a prescriptive right to use such road.

[Ed. Note. For other cases, see Highways, Cent. Dig. 88 10, 12-14, 16, 18; Dec. Dig. § 7.*]

3. EASEMENTS (§ 33*)—EXTINGUISHMENT.

ciples of law that an easement acquired by preIt would seem from well-established prinscription is extinguished when the land is taken for public uses under the right of eminent domain.

[Ed. Note. For other cases, see Easements, Cent. Dig. 85; Dec. Dig. § 33.*] 4. EMINENT DOMAIN (§ 207*) - DAMAGES AWARD.

It is immaterial whether the damages for land taken for a railroad location are estimated and awarded by the county commissioners according to the statute or are adjusted by mutual agreement between the landowner and the rail

road company.

[Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 207.*]

The most important part of that contract for the town was this clause in question, and that should not now be disregarded. Language which the parties to a contract intentionally used, and by which their lawful rights and obligations are clearly expressed, and which cannot be disregarded without impairing and destroying those rights and obligations, is not superfluous and unnecessary, 5. EMINENT DOMAIN (§ 320*)-TITLE ACQUIRand hence surplusage. It is vital and essen- ED IN LEGAL TAKING. tial to the contract. If that contract is law-31) the time of the taking of land for a railroad Under the law of Maine (Rev. St. c. 51, § ful, the parties must be held to abide it. As location as between the owner of the land and said in United States v. Hodson, 10 Wall. p. the railroad company is the time of the filing For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 851, 852; Dec. Dig. § 320.*] & EMINENT DOMAIN (§ 207*)—"Just COMPENSATION.'

of the location as required by statute, and that, | variations then made was the location over upon the payment within three years of the the three-rod strip now claimed by the damages which constitute the "just compensation" for "private property taken for public plaintiff as a right of way. This modified uses," the title acquired by the exercise of the location was approved by the railroad comright of eminent domain becomes perfected, and missioners October 2, 1904, and it is conrelates back to the time of such legal taking. ceded that prior to that date no right of way across the land in question had ever been created by any deed or conveyance or It is contended other written instrument. that the plaintiff, in common with such of the public generally as had occasion to use it, had traveled across it uninterruptedly for more than 20 years, and thereby acquired a prescriptive right to do so before the [Ed. Note. For other cases, see Eminent Do- location of the railroad over it in 1894. main, Dec. Dig. § 207.*

It is competent for the owner of land taken for public uses to waive the formality of a statutory assessment of damages, and, when he voluntarily accepts a satisfactory amount agreed upon, the constitutional guaranty of a "just compensation" is fulfilled.

For other definitions, see Words and Phrases, vol. 4, pp. 3897-3902.]

7. RAILROADS (§ 94*)-HIGHWAY CROSSINGSCONTROL OF RAILROAD COMMISSIONERS.

After the legal location of a railroad, the safety of public travel requires that the intersection of any highway or townway with the track of such railroad should be under the regu

lation and control of the railroad commissioners.

[Ed. Note.-For other cases, see Railroads, Dec. Dig. § 94.*]

(Official.)

Report from Supreme Judicial Court, Aroostook County.

Action by Jonathan Currie against the Bangor & Aroostook Railroad Company. Case reported. Judgment for defendant.

Argued before WHITEHOUSE, SAVAGE, SPEAR, CORNISH, KING, and BIRD, JJ. Ransford W. Shaw, for plaintiff. Don A. H. Powers, James Archibald, Bernard Archibald, Louis C. Stearns, Louis C. Stearns, Jr., F. H. Appleton, and Hugh R. Chaplin, for defendant.

WHITEHOUSE, J. In this action the plaintiff seeks to recover damages alleged to have been sustained by him on account of the obstruction by the defendant of a right of way three rods in width which the plaintiff claims to own leading from his land across the defendant's railroad tracks and location to the highway running to the village of Mars Hill.

The defendant admits that, in pursuance of the requirements of section 26 of chapter 52 of the Revised Statutes and the decision of this court in Wilder v. Maine Central R. R. Co., 65 Me. 332, 20 Am. Rep. 698, the company did erect and endeavor to maintain legal and sufficient fences on each side of its location at the point in question, and thereby necessarily closed and obstructed the way which the plaintiff claimed to own; but the defendant denies that the plaintiff had any right of way across the locus in question prior to or at the time of the taking of the land by the defendant under eminent domain for the location of its railroad. The original location of the railroad in 1892 was changed in 1894. Among the

At

the time of the location of the defendant's railroad and for some years prior thereto, Frank H. Lavine owned the land covered by it at the point in question. There was a gravel pit on his land at or near the river from which Lavine had been accustomed to sell gravel and sand for many years prior to the location, and it appears from the evidence that the purchasers of the sand during those years had driven their own teams over Lavine's land to and from the gravel where the plaintiff now claims a right of pit until a well-defined farm road appeared way. In times of drought and as occasion might require, the neighbors were also allowed to drive their horses and cattle over this road to the water at the river. After

the year 1900 the plaintiff had driven over this road to his starch factory and mill, and continued to cross at that point after the location and operation of the railroad. The principal witness for the plaintiff upon this branch of the case thus testifies: "In the first place it was simply a path. Mr. Lavine, the old gentleman, drove his cattle there in the winter season. We all had access to that to water our horses. And then he had a sand pit down there, and later he sold sand. I have been there many a day with a team in company with other men to the sand pit, and it has been a road for years long before the railroad."

This is substantially all of the evidence in the case upon which the plaintiff's claim of a right of way by prescription is founded, and it is manifestly insufficient to establish the proposition. Search is made in vain for any evidence having a necessary tendency to show that this way had been traveled by the public generally adversely to the rights of the owners of the land for a period of 20 years. On the contrary it satisfactorily appears from all the evidence that the use of the road by Lavine's neighbors and customers was purely permissive, and it is obvious that no term of permissive enjoyment of such a privilege, however long continued can be adequate to create a prescriptive right. "If the use of the road has been permissive and by the indulgence and license of the owner of the land over which it pass