Action by L. C. Andrews against the Dirigo, L. C. Andrews to the Dirigo Mutual Fire InMutual Fire Insurance Company. A verdict was rendered for plaintiff, and defendant moves for a new trial. Overruled. Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHIL BROOK, JJ. McGillicuddy & Morey, of Lewiston, for plaintiff. Newell & Skelton, of Lewiston, for defendant. HANSON, J. This is an action on a fire insurance policy, dated February 11, 1911. The fire occurred May 2, 1913, and proof of loss was filed August 5, 1913. The jury returned a verdict for the plaintiff in the sum of $1,234.24. The case is before the court on a general motion for a new trial. The material facts in the case are substantially these: The fire was caused by smoking a large ham and a shoulder in a shed about 20 feet square. The hams were suspended by a tarred string from an iron rod running across the bottom of a wooden barrel, which was inverted over a similar barrel; the latter standing on the wooden floor. A kettle containing the fire and combustible material stood on bricks in the bottom of the lower barrel. re surance Company at Gorham, Maine; and on Mr. Andrews to the same company a list of the 15th day of August, 1913, we submitted for three appraisers, from which they were quested to make their selection in the fire loss of L. C. Andrews against the Dirigo Mutual Fire Insurance Company, stating the names, and that no answer was ever made by the company to either the proof of loss, nor did they ever suggest any names from which we could select, or make a selection of ours.' The defendant pleaded the general issue, with the following brief statement: "(1) That at the time the fire occurred, to wit, on May 2, 1913, the property insured was not then the property of the plaintiff in suit. of the property, the value of which is in suit in "(2) That the fire which resulted in the loss this case, was caused through the gross negligence and want of care of the plaintiff acting through his servants and agents in the care and custody thereof, and in the matter in which the fire occurred, and was set directly by the plaintiff or by his servants and agents." At the conclusion of the plaintiff's testimony, the attorney for the defendant stated to the court that he would not undertake to offer any further testimony, that the facts were brought out practically as they existed, and that he desired "to address the jury on the evidence as it stands." The defendant contends: That the fire was caused by the gross negligence of the The premises were owned by the plaintiff, plaintiff, and that he has violated two condi who had occupied them for 35 years, and continued to live in the house until driven out by the fire. For about 2 years his daughter and her husband, a Mr. Jackson, had lived there, without any lease or special arrangement, but doing the work about the place and owning some of the personal property. The plaintiff retained full control of the premises, but on account of his advanced age and feeble condition was obliged to secure the assistance of Mr. Jackson and his wife in the management of his farm and care He of himself in his sickness. The ham and "Dirigo Mutual Fire Insurance Co. "Gorham, Maine, June 18, 1913. "L. C. Andrews, Monmouth, Me.-My Dear Sir: I am very sorry to be obliged to notify you that we cannot see how the company can legally pay you for your loss which was caused by smoking hams in your carriage house without permission. "Very truly yours, T. F. Millett, Sec'y. "TFM-B." The proof of loss was offered and admitted, and the following admission was made: "It is admitted that August 5, 1913, the firm of McGillicuddy & Morey sent proof of loss of tions of the policy, namely, that provision that: "The policy shall be void if without such consent [that of the company], the situation or circumstances affecting the risk shall, by or with the knowledge, advice, agency, or consent of the insured be so altered as to cause an increase of such risks." And the provision that, "in case of loss or damage * * a statement in writing rendered to the company setting forth the value of the property insured," etc., and says "that the only fair inference to be drawn * * shall be within a reasonable time from the evidence is that whatever was done was the act of the plaintiff done through his agents or employés. Jackson and his wife claim of any lease, or independent contract were doing the active work, but there is no of any sort. The plaintiff remained there; they were simply one family, and, as Mrs. Jackson said, he still had full control of it. The transactions about the place were as much his as though he had been personally present every minute and had done them with his own hand," and that the fire was due to gross negligence. That smoking a ham in a shed, without constant watching, was negligence. That the place and means selected, instead of locating the barrel outside the buildings, was inexcusable. In effect defendant claims that the plaintiff was grossly careless, and therefore cannot re cover. We are not able to agree with the defend ant's claim that the plaintiff violated two of the conditions of his policy as set out in the brief of counsel, viz.: (1) That the situation The brief statement does not set up or circumstances affecting the risk were so, time. altered, by or with the knowledge, advice, the absence of a proof of loss, or negative a agency, or consent of the insured as to cause waiver. Robinson v. Ins. Co., 90 Me. 385, 38 an increase of the risk; and (2) that "a Atl. 320. statement in writing" was not rendered to the defendant within a reasonable time, as required by the terms of the policy. [1] As to the first contention the record does not disclose that it was submitted to the jury, but it does show conclusively that the plaintiff had no knowledge of the situation or circumstances causing the fire; that he had given no instructions in relation to smoking hams, or any other work on that day, or previously; that he did not own the ham in question, or know of its existence. He was 79 years old, and had been ill for months, and in no condition to voluntarily assume control, or in any manner to direct another in the conduct of his farm, or other work. He was helpless and dependent, and the evidence is conclusive that the situation and circumstances affecting the risk were not so altered as to cause an increase of the risk, by or with his knowledge, advice, agency, or consent. Nor does the evidence justify an inference that whatever was done was the act of the plaintiff performed through Mr. Jackson and his wife, as agents, thus violating a condition of the policy. The defendant relies particularly upon its claim that a proof of loss was not furnished "within a reasonable time." From the briefs of counsel on either side it appears that this question was submitted to the jury by the presiding justice, and the jury passed upon it, but the defendant says that: "In the absence of proof of an express waiver, it was not a matter of positive instructions by the court to be reviewed on exceptions, but was a question for the jury on which it erred," and "that the only possible way in which the plaintiff can prevail is by reading into the law words which are not there, in order to avoid giving force to the words which are there." [2] Counsel agree that it was a proper question to be submitted to the jury, and in the absence of exceptions, and the charge of the presiding justice, we must assume that the question was submitted under proper instructions. The words under consideration are the same in the statute and policy, to wit, "within a reasonable time." It is firmly settled in this state that what constitutes reasonable time, on undisputed facts, is not for the jury, but is a question of law. Hill v. Hobart, 16 Me. 164; Greene v. Dingley, 24 Me. 131; Libby v. Haley, 91 Me. 331, 39 Atl. 1004; Watson v. Fales, 97 Me. 366, 54 Atl. 853, 94 Am. St. Rep. 504. [3] Other questions were involved, and the case was necessarily submitted to the jury. It is manifest that there was evidence from which the jury could properly find that there was a waiver of the right of the defendant to require a proof of loss, or that such proof of loss was furnished within a reasonable [4] The letter in the case, which was obviously a reply to a communication from the plaintiff on the subject of the loss, the continued illness of the plaintiff, his great age, the facts admitted touching the offer on the plaintiff's part to submit his claim to arbitrators, the silence of the defendant and its neglect to answer communications from the plaintiff, and the further fact that the notice, when furnished, was for the benefit of the defendant, and that substantially all the facts connected with the fire were known to the defendant before the date of the letter to the company on June 18, 1913, furnished ample ground for a finding that a statement in writing was rendered within a reasonable time, as required by the statute and the terms of the policy. It is the opinion of the court that the verdict should stand. The entry must be: Motion overruled. CARE. living with her husband by the negligence of a Where a married woman is injured while third person, she may not recover for loss of ability to do domestic labor in their home, nor for the expenses of her treatment and care, since her inability to labor is the loss of her husband, and the burden and expense of caring for and nursing her is also his, unless she has expressly undertaken to be personally responsible therefor. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. 88 766-772, 968, 973; Dec. Dig. § 209.*] 2. DAMAGES (§ 130*) — EXCESSIVENESS SONAL INJURIES. PER Plaintiff, a married woman, was injured in a collision between a carriage in which she was riding and one of defendant's cars. Plaintiff was 71 years old and in good health for a woman of her age. She was thrown violently to the ground between the railroad tracks, severely bruised; two of her ribs were broken, suffered great pain for several weeks on and she sustained a severe nervous shock. She count of the irritation caused by the pricking ends of the fractured ribs, was unable to sleep, and though the fractured ribs united, she continued to suffer pain and lameness in her side up to the time of the trial and was unable to do any work. Held, that a verdict allowing her $1,200 was not excessive. ac [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. § 130.*] On Motion from Supreme Judicial Court, Penobscot County, at Law. Action by Emily E. Felker against the Bangor Railway & Electric Company. On motion for a new trial. Overruled. Argued before SAVAGE, C. J., and SPEAR, | well as in health, the burden of the expenses CORNISH, BIRD, HALEY, and PHIL for medical and surgical treatment and for BROOK, JJ. nursing falls upon him and not upon her, un D. I. Gould, of Bangor, for plaintiff. E. C. less she has expressly undertaken to be personally responsible for them. Ryder, of Bangor, for defendant. SAVAGE, C. J. Case to recover for injuries sustained in a collision between the carriage in which the plaintiff was riding and the electric car of the defendant company. The plaintiff obtained a verdict for $1,200. The case comes up on the defendant's motion for a new trial on the usual grounds. But counsel have argued only the question of damages, and to that question we shall confine ourselves. The plaintiff is a married woman, and at the time of the accident was about 71 years of age, and in ordinarily good health for a woman of her age. The carriage in which she was riding was overturned, and she was thrown violently upon the ground, between the railroad tracks. The evidence would warrant a jury in finding that she sustained a severe nervous shock; that two of her ribs were broken, and that she was considerably bruised about her back and other parts of her body; that in consequence of her injuries she suffered great pain for several weeks on account of the irritation caused by the pricking ends of the fractured ribs, that she suffered also in other ways; that it was necessary, in order to ease her pain, to turn her in bed and give her a rubbing half a dozen times a night; that she was unable to sleep well nights, that as a result of the shock a serious nervous condition was developed, from which she had not fully recovered at the time of the trial, 14 months after the injury. Her attending physician, in testifying, spoke of this condition as "this horrible state of the nervous system." And the jury might find that, although the fractured ribs united well in a few weeks, she suffered even up to the trial from pain and lameness in her right side, and was unable to do any work of any consequence. It appears that while confined to her bed in consequence of her injuries, the plaintiff had an attack, but not a severe one, of hypostatic pneumonia, which is a phase of pneumonia incident to old age. It is not claimed that the pneumonia was caused by her physical injuries. Whether she was more susceptible to it by reason of her condition, does not clearly appear. [1] Being a married woman and living with her husband, the plaintiff is not entitled to recover for loss of ability to do domestic labor in their home, nor for the expenses in caring for her, surgically and otherwise. Under the marital relation, the labor in the house belonged to her husband. Her inability to perform that labor is his loss. And on the other hand, as the law imposes on him the duty of caring for her in sickness as [2] But the plaintiff may recover for the undoubted shock of the accident, and for all the suffering, mental and physical, which it caused. The loss of health and strength was her personal loss, irrespective of its effect upon her ability to labor. For the endurance of the nervous condition caused by her injuries she is entitled to compensation. Such suffering may be both mental and physical. There is no standard by which the damages for such injuries as are shown in this case can be measured. In the end the question must be left to the sound sense and good judgment of the jury, to award such damages as seem to them to be fairly compensatory. And when it appears that the jury have discharged their duty with fidelity, and have reached a reasonable approximation of the damages, the court will not interfere, even though the verdict should seem to them somewhat large. When the verdict is within the bounds of reason, the court will not institute a paring process to make it conform more exactly to their own views. Such is this case. Motion overruled. 1. MASTER AND SERVANT (§§ 101, 102*)-IN JURIES TO SERVANT-DUTY OF MASTER-SAFE A master must use reasonable care to provide a reasonably safe place for his servant to work in. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.*] 2. MASTER AND SERVANT (§§ 206, 217*)-INJURIES TO SERVANT-ASSUMPTION OF RISK. A servant assumes the risks which are or dinarily incident to his employment, and such Servant, Cent. Dig. 88 550, 574-600; Dec. Dig. TO SERVANT SUFFICIENCY OF EVIDENCENEGLIGENCE OF MASTER. In an action for injuries to an employé caused by a fall from a stage upon which the employé, who was at least partially intoxicated, was engaged in unloading coal from a vessel, evidence held insufficient to warrant the jury in finding that the master had failed to furnish a safe place to work, and therefore to require the direction of a verdict for defendant. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*] 4. MASTER AND SERVANT (§ 286*)-INJURIES FOR While the jury are the proper judges of questions of fact, the question of the negligence For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes of a master, in failing to provide a safe place for work, becomes a question of law, where the evidence on that issue is such that only one conclusion can be drawn by reasonable men. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*] Exceptions from Supreme Judicial Court, Knox County, at Law. Case to recover for personal injuries by Alvah Lindsey against Fred R. Spear. Verdict directed for defendant, and plaintiff excepts. Exceptions overruled. Argued before SAVAGE, C. J., and BIRD, HALEY, HANSON, and PHILBROOK, JJ. Philip Howard, of Rockland, for plaintiff. Arthur S. Littlefield, of Rockland, for defendant. SAVAGE, C. J. Case to recover for injuries caused by defendant's alleged negligence. The presiding justice directed a verdict for the defendant, and the plaintiff excepted. The plaintiff was employed by the defendant in unloading coal from a vessel. The coal was being hoisted by means of shears and hoisting gear from the hold of the vessel in tubs to the level of the stage on which the plaintiff worked, and was then emptied from the tubs into wheelbarrows, and the plaintiff's particular duty was to wheel it from the tubs across the stage and dump it in the shed. It was also his duty, when a tub was hoisted, to assist in emptying or dumping it into his wheelbarrow. It took two tubs, about 1,000 pounds of coal, to fill the wheelbarrow. When the accident happened, one tub had already been emptied into the barrow, and another one was hoisted. The plaintiff described what followed in these words: * "When this tub came up we dumped it. Those shears would certainly always have a shake; when this rocked, it rocked the whole stage, and something swiveled like that, and when it did I went over the line. Something seemed to travel. I noticed something slipped under my feet, and, when it did, it throwed me right over the line." The stage was a completed structure. One end was suspended by chains attached to the shears overhead. The other end rested on a platform, which was several feet above the wharf. When not in use, it appears to have been pulled in. When a vessel came to the wharf to be unloaded, it was pushed out with crowbars, so that, when ready for use, both the shears and the front end of the staging extended over the side of the vessel. The stage was then fastened in position by iron dogs on either side driven into the platform on which it rested. It was further stayed by planks or bars on the platform extending from cleats on the inner end of the stage to the end of the coal shed. And, so long as it remained stayed in this manner, no question is made but that it was reasonably safe [3] The plaintiff in his specifications alleges in substance that the accident was due to one or two or all of the following factors, namely: (1) The insufficiency in height and material of the "lifeline," which we assume was placed where it was to protect men from falling off the stage either by accident or when it was shaken by the dumping of coal; (2) the rotten and decayed condition of the platform, so that the dogs would not hold; (3) the insecure fastening of the iron dogs, whereby the stage could sway; (4) the insecure fastening of the braces, so that they became displaced, with the same effect; and (5) that the staging was improperly fastened to the shears. As to the insufficiency of the lifeline, it need only be said that the defect, if defect it was, was an obvious one, the risk of which was assumed by the plaintiff. The plaintiff had worked on this stage many times, and was perfectly familiar with its construction. As to the other supposed defects, there is absolutely no evidence of them, except the rocking or swaying of the stage testified to by the plaintiff and by one other witness whose presence there is denied and is doubtful. There is no evidence that the dogs had failed to hold, or that the braces were out of place. If either of these things had occurred, it must necessarily have been observed after the accident. There were six or eight men working on this coal operation. They were known to the plaintiff. It is not shown that they were unfriendly to him. If the iron dogs were found to be insecure, or the braces out of place after the accident, it seems beyond belief that some of them would not have known of it, and, if they had known of it, it seems equally beyond belief that the knowledge should not have come to the plaintiff. All the witnesses who noticed the staging afterwards, and there were several, declare that there was no trouble with dogs or braces. It is testified to by one witness that planking in the platform was rotten, but that is of no consequence if the dogs held. The plaintiff suggests that the defects, if they existed, may have been remedied before the witnesses had opportunity to observe them. But there is no evidence to support the suggestion. On the other hand, the case shows that the stage, from the very manner of its construction, was not and could not have been entirely steady and firm when great weights of coal were dumped from the tubs to the barThat it should shake or sway a little was inevitable. And this must have been known to the plaintiff, and was assumed by row. him. Now it appears that the plaintiff had been drinking that morning. He admits it. The evidence shows beyond any reasonable question that he was more or less intoxicated, and that he had been warned that day by fellow workmen of the danger in working upon that stage in an intoxicated condition. His description of his sensations at the time of the rocking and swiveling of the stage are not unlike what might be expected in the case of an intoxicated man. [4] It is true, as the learned counsel for the plaintiff urges, that the questions we are discussing are questions of fact. It is true, too, that the jury is the proper tribunal to determine questions of fact. But, when the evidence as to negligence in a case like this is of such a character that only one conclusion can be drawn by reasoning and reasonable men, it becomes a question of law (Maine Water Co. v. Crane, 99 Me. 485, 59 Atl. 953), and the judgment of the court must follow the conclusion of fact. And, if a verdict of the jury should happen to be contrary to that conclusion, it is the duty of the court to set it aside. Again, the contention of the plaintiff rests solely upon an inference which it draws from what he calls a "rocking" of the stage. There is at least as strong an inference that the rocking which the plaintiff seemed to feel was due to his intoxication. Upon the whole, we feel bound to say that the evidence, if it had been submitted to a jury, would not have warranted them in finding that the defendant had failed to perform his duty to the plaintiff, with respect to the safety of the stage on which the plaintiff worked. It was therefore the duty of the presiding justice to direct a verdict for the defendant. Frederickson v. Central Wharf Towboat Co., 101 Me. 406, 64 Atl. 666; Young v. Chandler, 102 Me. 251, 66 Atl. 539; Veano v. Crafts, 109 Me. 40, 82 Atl. 293. Exceptions overruled. (112 Me. 263) DUPLISSY v. MAINE CENT. R. Co. (Supreme Judicial Court of Maine. Oct. 17, 1914.) 1. RAILROADS (§ 482*)-FIRES-ACTIONS-SUFFICIENCY OF EVIDENCE. In an action for the value of buildings and their contents destroyed by fire, evidence held sufficient to support a jury finding that the fire was caused by sparks from a railroad locomotive. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1730-1732, 1734-1736; Dec. Dig. § 482.*] 2. DAMAGES (§ 139*)-EXCESSIVENESS—INJUBIES TO PROPERTY. In an action against a railroad company for the value of a hotel and outbuildings and their contents destroyed by fire, where the evidence showed the fair value of the buildings to personal property amounted to $3,000, and the be from $3,000 to $3,500, while the schedule of furniture for the most part had been purchased within a year, a verdict for $5,341.67 was not so excessive as to require interference. [Ed. Note.-For other cases, see Damages, Cent. Dig. 88 400-403; Dec. Dig. § 139.*] 3. RAILROADS (§ 481*)—INJURIES FROM FIRE EVIDENCE-RELEVANCY-SIMILAR MATTERS. In an action against a railroad company for the destruction of a hotel and its contents by fire, where the company showed that its engine was equipped with a spark arrester in good condition, and called witnesses who expressed the opinion that sparks could not have been emitted that would have set the fire, a person living five houses from the hotel was properly permitted to testify as to finding a large quantity of cinders on her piazza the morning after the fire. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.*] 4. TRIAL ( 194*)-INSTRUCTIONS-INVADING PROVINCE OF JURY. An instruction prescribing in detail the character of the evidence required, and which would have necessitated the court passing upon matters clearly within the province of the jury, was properly refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*] Motion and Exceptions from Supreme Judicial Court, Penobscot County, at Law. Action by Edward W. Duplissy against the Maine Central Railroad Company. Verdict for plaintiff, and defendant brings exceptions and moves for a new trial. Motion and exceptions overruled. Argued before SAVAGE, C. J., and SPEAR, CORNISH, BIRD, HALEY, and PHILBROOK, JJ. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |