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(108 A.)

Action for negligence by one Barber upon this machine were invisible when the against the Jones Shoe Company. At the machine was in operation, because they reclose of plaintiff's evidence, defendant's mo- volved with such velocity. tion for a nonsuit was granted subject to plaintiff's exception. Case transferred. Ex- whether, under the employers' liability and ception sustained.

The plaintiff was injured in the defendants' shoe factory upon a heeling machine. Trial by jury who had a view, and saw a machine similar to the one upon which the plaintiff was injured, except it was equipped with guards in full operation. The defendants were subject to the employers' liability and workmen's compensation statute enacted in 1911 (Laws 1911, c. 163) and had not accepted its provisions.

James E. Banigan, Samuel J. Dearborn, and Charles E. Hammond, all of Manchester, for plaintiff.

Taggart, Tuttle, Wyman & Starr, of Manchester, for defendant.

The first question for consideration is

workmen's compensation statute (Laws 1911, c. 163), the plaintiff was in the course of his employment when the accident occurred.

Section. 1 of the act enumerates the kinds

of employments covered by the law, and section 2 provides that

"if, in the course of any of the employments above described, personal injury by accident arising out of and in the course of the employment is caused to any workman employed therein, in whole or in part, by failure of the employer to comply with any statute, or with any order made under authority of law, or by the negligence of the employer or any of his or its officers, agents or employés, or by reason of any defect or insufficiency due to his, its or their negligence in the condition of his or its plant, ways, works, machinery, cars, engines, equipment, or appliances, then such employer shall be liable to such workman for all damages occasioned to him."

There is no question but what the plaintiff was engaged in an employment covered by section 1 of the act. But the defendants contend, that when he left his machine while waiting for work and went across the room to talk with a fellow workman, he was not in the course of his employment, under a

PLUMMER, J. The plaintiff, who was 19 years of age, had been at work for the defendants in their shoe factory upon a nailing machine for about one week at the time of the accident. Just previous to the accident he had completed the work upon which he was engaged. He attempted to do some other work, but was ordered by the foreman not to do it. Having nothing to do, and while waiting for work, he went across the room about 20 feet, and talked with a young man proper construction of section 2. who was operating a machine known as a [1] The employers' liability and workmen's heel breast shaver. The operative at this compensation statute was enacted for the machine was working at a set of revolving benefit and protection of the mill and factory knives on the left end of it, and there was operatives of the state. It is a remedial also a set of revolving knives on the right statute, and should be liberally construed to end. These knives were unguarded, although fully and adequately effectuate the purpose there was a place on the machine for a of its enactment. Hotel Bond Co.'s Appeal, guard, and no instructions had been given 89 Conn. 143, 93 Atl. 245; Coakley's Case, the plaintiff respecting the dangers incurred 216 Mass. 71, 73, 102 N. E. 930, Ann. Cas. in being near it. The plaintiff's evidence 1915A, 867; Panasuk's Case, 217 Mass. 589, tended to prove that while he was talking 105 N. E. 368; Donahue v. Sherman's Sons with this operative he was standing with his Co., 39 R. I. 373, 98 Atl. 109, L. R. A. 1917A, back to the right end of the machine, with 76; Zappala v. Industrial Ins. Com., 82 his right arm hanging by his side, and his Wash. 314, 144 Pac. 54, L. R. A. 1916A, 295; left arm resting on a shoe rack; that he had Milwaukee v. Miller, 154 Wis. 652, 144 N. W. been thus engaged in conversation some three 188, L. R. A. 1916A, 1, 374, Ann. Cas. 1915B, minutes when the sleeve of his jumper on his 847; Lizotte v. Nashua Mfg. Co., 78 N. H. right arm was sucked into the revolving 354, 357, 100 Atl. 757. knives by the air blower attached to the machine, and his right arm was drawn into the machine, and the back of his arm just above the elbow was cut; that it was customary, and had been for a long time, for employés in that room, when they had nothing to do and were waiting for work, to go about the room and talk with the operatives at the machines, as the plaintiff did; that he had stairs, where there was piece work to be never seen a heel breast shaving machine equipped with knives before entering the employment of the defendants, and that he had not observed the machine upon which he was injured prior to the accident; that the knives

Wheeler v. Contoocook Mills, 77 N. H. 551, 94 Atl. 265, was an action for negligence under this statute. The plaintiff was employed by the day in an upstairs room of the defendants' hosiery mill. She had completed the work upon which she was engaged, and was told by the overseer that if she desired to finish out the day she could go down

done. In doing so she fell on the stairs, and was injured. The defendants urged that, because she had finished her day's work upstairs, and was going down stairs to engage in work of a different character, she was

not, while in transit, the defendants' servant. It was held that she was in the course of her employment. Although this case is somewhat unlike the case at bar, it demonstrates that a narrow and restricted con

struction is not being placed upon the statute in this state.

[2] In Boody v. K. & C. Mfg. Co., 77 N. H. 208, 90 Atl. 859, L. R. A. 1916A, 10, Ann. Cas. 1914D, 1280, the statute received a liberal interpretation. Such a construction of the statute would warrant a finding upon the evidence that the plaintiff was in the course of his employment when he was injured. It could be found that it was customary for the employés to go about and talk with their fellow workmen when waiting for work, and that this custom was known to the plaintiff, and had existed for such a length of time that the defendants knew it, or ought to have known it; that it was the fault of the defendants, and not of the plaintiff, that he had no work; that while he was without work he simply did what he had seen others do, and what was customarily done, and did not do anything that he had been told not to do; that he was not enjoying a rest for a definite period, but his leisure was for an indefinite time, and might be terminated at any minute, and while it continued he was there in the room, holding himself in readiness to return to work, and subject to the orders of the defendants. Some latitude must be allowed a workman while engaged in his employment. It cannot be said as a

matter of law, if he is without work for a

order to smoke. In striking a match upon his trousers his oily burlap apron caught fire, and he was fatally burned. The court in this case stated:

"The fact that in the present case Dzikowska met with an accident during a short interval of waiting for the arrival of more material to load made no difference. His period of employment was not broken thereby. He was discharging precisely the duty laid upon him by his employer, and in the manner expected of him. As the court below said: "This was not a rest period. It was not a period when, by the rules of the duties of his employment. It was an indeter employment, the employé was free from the minate period of waiting for the occurrence of an event which would renew the active operations of the employment. That might be a minute, or it might be very much more. But the employé had not been called off from work, and, in renewing his work, would not be called back. He was there ready to work as soon as the material was ready for his hand.'"

[3] The defendants claim that no duty chine upon which the accident occurred to was imposed upon them to guard the mabe found that it was a custom in that room, protect the plaintiff from injury. As it can which was known, or ought to have been known, to the defendants, for employés, when waiting for work, to go about the room and talk with the operatives at the maand talk with the operatives at the machines, it can also be found that it was the this machine to protect the employés from duty of the defendants to reasonably guard injury while they were there engaged in the course of their employment. Edwards V. Tilton Mills, 70 N. H. 574, 50 Atl. 102; Morrison v. Fibre Co., 70 N. H. 406, 47 Atl. 412, 85 Am. St. Rep. 634.

Mitchell v. Railroad, 68 N. H. 96, 34 Atl. 674, is a leading authority in support of the proposition that duties are imposed upon persons by custom and usage. In that case a custom, which the evidence tended to prove was known to the defendants, was of vital importance in sustaining the verdict of the plaintiff. See, also, Minot v. Railroad, 73 N. H. 317, 61 Atl. 509; Hobbs v. George W. Blanchard & Sons Co., 74 N. H. 116, 65 Atl. 382, 124 Am. St. Rep. 944; Duggan v. Railroad, 74 N. H. 250, 66 Atl. 829.

brief space of time and goes away from his work place a few yards to speak to a fellow workman employed in the same room, that he places himself beyond the protection of the statute. Such an interpretation of the law would be repugnant to the humane intent and purpose of the act. The following cases similar to the instant case hold that the employé was in the course of his employment when injured: Von Ette's Case, 223 Mass. 56, 111 N. E. 696, L. R. A. 1916D, 641; Sundine's Case, 218 Mass. 1, 105 N. E. 433, L. R. A. 1916A, 318; Ingram's Adm'x v. Rutland R. R. Co., 89 Vt. 278, 95 Atl. 544; Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Terlecki v. Strauss, 85 N. J. Law, 454, [4] The defendants say that, if the ma89 Atl. 1023; Scott v. Payne Bros., 85 N. J. chine had been properly equipped with a Law, 446, 89 Atl. 927; Richards v. Indian- guard, it could not be found that it would apolis Abattoir Co., 92 Conn. 274, 102 Atl. 604; have protected the plaintiff from injury. Racine Rubber Co. v. Industrial Com'n, 165 While it does not conclusively appear that Wis. 600, 162 N. W. 664; Dzikowska v. Su- this is true, yet, conceding that it is, it does perior Steel Co., 259 Pa. 578, 103 Atl. 351, L. not aid the defendants. If the machine was R. A. 1918F, 888; Holland-St. Louis Sugar of such construction that it could not be Co. v. Shraluka (Ind. App.) 116 N. E. 330. guarded so as to reasonably protect the plainIn Dzikowska v. Superior Steel Co., supra, tiff from injury, then it was an issue of fact the employé was engaged in a shipping room whether it was the duty of the defendants loading steel upon a freight car. They had to instruct him relative to the danger which loaded all the steel at hand, and were wait- he would incur when in proximity to the ing for more. He stepped out of the shipping machine in operation. It cannot be held as

(108 A.)

under no obligation to instruct the plaintiff, | ance of his duties. The plaintiffs are the or guard the machine upon which he was injured. In view of the youth and inexperience of the plaintiff, the character of the machine, and the custom which it can be found prevailed among the workmen to go about the machines, these were issues of fact, and a finding upon them favorable to the plaintiff would establish the negligence of the defendants.

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1. MUNICIPAL CORPORATIONS 205-MAYOR HAS NO POWER TO SUSPEND SUPERINTENDENT OF WATERWORKS.

Superintendent of waterworks of city of Manchester, being appointed by board of water commissioners under Laws 1871, c. 70, 85, Manchester Ord. 1909, c. 36, § 3, and Laws 1915, c. 302, § 3, limiting the mayor's power of suspension to city officials, agents, employés, or other persons appointed or elected by him, the board of mayor and aldermen, the board of common council, or the city councils, gives the mayor no power to suspend the superintendent of waterworks.

duly elected water commissioners of Man-
chester, and the defendant is the mayor of
the city, and by virtue of his office is also a
member of the board of water commission-
ers. The
The water commissioners appointed
James H. Mendell superintendent of the wa-
terworks, and he held that position when
this controversy arose. June 2, 1919, the
defendant, as mayor, notified Mendell that he
was indefinitely suspended, and that, upon
the receipt of the notice suspending him, he
should thereupon and thereafter cease
take or have charge of the waterworks. Up-
on the allegations in the bill, the injunction
was granted by Branch, J., and the defend-
ant excepted. Transferred from the May
term, 1919, of the superior court, by Allen, J.

Taggart, Tuttle, Wyman & Starr, of Manchester (L. E. Wyman of Manchester, orally), for plaintiffs.

Thos. H. Madigan, Jr., Geo. A. Wagner, and Cyprien J. Belanger, all of Manchester (C. J. Belanger, of Manchester, orally), for defendant.

PLUMMER, J. [1] It is the contention of the defendant that section 3 of chapter 302 of the Laws of 1915 confers upon him, as mayor of Manchester, the power to suspend the superintendent of the Manchester waterworks. This section is as follows:

"The mayor, in addition to other powers now conferred upon him, shall have authority over and be charged with the responsibility for the official conduct of all other city officials, agents, employés, or other persons who are now or may hereafter be appointed or elected by the mayor, the board of mayor and aldermen, the board of common council, or the city councils, and shall have general supervision and control over the expenditure of all money appropriated by said

2. STATUTES 188-CONSTRUCTION OF WORDS city, and shall have all the power and authority

ACCORDING TO COMMON USAGE.

Words in a statute are to be construed according to the common and approved usage, unless they have acquired a peculiar and appropriate meaning in law.

3. STATUTES 188

NOT TO BE INVESTED WITH MEANING REPUGNANT TO TERMS.

In the construction of a statute, a meaning cannot be given it plainly repugnant to its

terms.

necessary to properly carry out and enforce the provisions of this act and all other acts relating to the powers and duties of the mayor, which shall include the power to suspend or otherwise discipline, as the mayor shall deem advisable for the best interests of the city."

[2, 3] By the unequivocal terms of this statute the mayor's power of suspension is limited to city officials, agents, employés, or other persons who are now or may hereafter be appointed or elected by the mayor, the board of mayor and aldermen, the board of common council, or the city councils. The superintendent of the waterworks being appointed by the board of water commissioners (Laws 1871, c. 70, § 5; Manchester Ord. 1909, c. 36, § 3), the statute invoked gives to the mayor no power to suspend him. The words of the act are clear and unambiguous, Bill in equity to restrain the defendant and, giving them their plain and natural from interfering with the superintendent of import (Atty. Gen. v. Hayes, 77 N. H. 358, the Manchester waterworks in the perform- 92 Atl. 166, Ann. Cas. 1916B, 119), there can

Exceptions from Superior Court, Hillsborough County; Branch and Allen, Judges. Suit by one Floyd and others, Water Commissioners of the City of Manchester, against one Verrette, Mayor, resulting in grant of injunction, and defendant excepts. Exceptions

overruled.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

be no doubt that the interpretation here [ quiring that such affidavit set forth the rulings placed upon the statute is correct.

"Words in a statute are to be construed according to the common and approved usage of the language unless they have acquired a peculiar and appropriate meaning in the law." Colston v. Railroad, 78 N. H. 284, 99 Atl. 649; State v. Railroad, 76 N. H. 146, 149, 80 Atl. 858; Opinion of the Justices, 73 N. H. 625, 626, 63 Atl. 505, 6 Ann. Cas. 689; P. S. c. 2, §§ 1, 2.

The statute explicitly and positively indicates that the mayor does not have the authority of suspension with respect to the office of the superintendent of the waterworks, and "the legislative will as expressed cannot be disregarded." Martin v. Swanton, 65 N. H. 10, 11, 18 Atl. 170, 171. In the construction of a statute a meaning cannot be given it that is plainly repugnant to its terms. Brotherhood Accident Co. v. Lineham, 71 N. H. 7, 12, 51 Atl. 266.

upon which the exceptions are based.

4. EXCEPTIONS, BILL OF 55(3)-AFFIDAVIT
ACCOMPANYING PETITION TO ESTABLISH, SUF-
FICIENT TO SHOW CORRECTNESS OF TRAN-
SCRIPT BY STENOGRAPHER.

Affidavit of stenographer that the "transcript made by me is a true record according to my notes" held a sufficient verification of the correctness of the transcript of evidence on petition to establish the truth of exceptions.

Action by Mary A. Reddington against Waldo I. Getchell. Judgment for defendant. On motion of defendant to dismiss plaintiff's petition to establish the truth of her exceptions. Motion denied.

See, also, 40 R. I. 463, 101 Atl. 123.

Charles R. Easton, of Providence, for plaintiff.

Huddy, Emerson & Moulton and E. Butler

The interpretation of this act in compli- Moulton, all of Providence, for defendant.

ance with the demands of the defendant would clearly be repugnant to the language of the statute.

Exceptions overruled.

All concurred.

(42 R. I. 439)

REDDINGTON v. GETCHELL. (No. 5337.)

VINCENT, J. This case comes before us upon the motion of the defendant to dismiss the petition of the plaintiff to establish the truth of her exceptions. The defendant claims that this court is without jurisdiction to consider said petition, it not having been filed in conformity with the statute. General Laws 1909, § 21, c. 298.

The bill of exceptions was filed December 6, 1919, and the plaintiff's petition was filed

(Supreme Court of Rhode Island. Jan. 23, December 8, 1919.

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2. EXCEPTIONS, BILL OF 55(3) — PETITION TO ESTABLISH TRUTH OF EXCEPTIONS SUFFI

CIENT THOUGH WITHOUT PRAYER.

Petition to prove truth of exceptions under Gen. Laws 1909, c. 298, § 21, held sufficient as against objection that the petition contained no prayer that the truth of the exceptions and the correctness of the transcript be established.

3. EXCEPTIONS, BILL OF 55(3)—VERIFICATION OF PETITION TO PROVE TRUTH OF EXCEPTIONS SUFFICIENT WITHOUT RECITING THAT BILL WAS MADE PART OF AFFIDAVIT.

Affidavit in verification of petition to establish truth of exceptions under Gen. Laws 1909, c. 298, § 21, referring to "bill of exceptions annexed hereto," without reciting that bill of exceptions was made a part of the affidavit, held sufficient under Court Rule 13 (62 Atl. ix), re

The petition sets forth that

"The trial justice who presided at the trial of said case * is no longer a member

of said superior court and hence cannot within the period of twenty days after such filing act refuse to alter the same as required by statute," upon or return the same or disallow, alter or

etc.

Section 21 of the statute referred to is as follows:

"Sec. 21. If the justice who presided at the trial shall, for a period of twenty days after a bill of exceptions has been filed, fail to act upon or return the same, or shall disallow, alter, or refuse to alter the same, and either party is aggrieved thereby, the truth of the exceptions may be established before the Supreme Court upon petition stating the facts, filed within thirty days after the filing of the bill of exceptions in the superior court; and thereupon, the truth of the exceptions being established in such manner as the court shall by rule prescribe, they shall be heard and the same proceedings taken as if the exceptions had been duly allowed and filed. And upon such petition being filed, the Supreme Court may order the clerk of the superior court to certify and transmit to the clerk of the Supreme Court the papers in the cause."

The defendant argues that, inasmuch as the basis of a petition to this court to es

(108 A.)

tablish the truth of exceptions is the failure of the bill of exceptions could this court of the trial justice to act upon such excep- acquire jurisdiction to establish the truth tions, and that the statute having fixed a of the exceptions. In that case it does not period of 20 days within which such action appear that the trial judge had absolutely may be taken, any proceeding prior to the ex- and forever lost his power to act, but simply piration of such period would be premature, that he had failed to act within 20 days, would not comply with the statute, and and that no petition to establish the truth of would entitle the defendant to a dismissal the exceptions had been filed within 30 days of the petition. In other words, that the after the bill of exceptions had been filed plaintiff cannot under any circumstances in the clerk's office. That case neither preassume that the trial judge will not act up- sented nor suggested the question which is on the bill of exceptions, but that the final now before us in the case at bar. The determination of that question can only be question here is not based upon any failure reached with the expiration of twenty days. of the trial judge to act within a period of While this question is quite technical in 20 days which has elapsed, nor is it based its character, we do not view it with dis- upon any failure of the defendant to take favor for that reason nor deem it less de- any action within a period prescribed by serving of our careful consideration. rule or statute.

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[1] Upon the elevation of the justice who heard the motion for a new trial to this court, he ceased to be a member of the superior court and his power to further exercise any of the functions of a justice of that court became wholly terminated. The evident purpose of the statute, in fixing a period of 20 days within which the trial justice is required to act upon a bill of exceptions, was to afford him a fair opportunity for such examination of the matters connected therewith as might be necessary; but we do not think it was intended as a positive temporary bar to other proceedings, as, for instance, to establish the truth of exceptions in a case where the power of the trial judge to act had entirely and absolutely ended. In such a situation it is a foregone conclusion that if the losing party desires to prosecute his bill of exceptions he can only do so by getting their truth established by petition to this court. Under such circumstances, we cannot see that such a proceeding instituted within the 20 days and after the trial judge has become powerless to act invades any rights of the defendant or in any way operates to his disadvantage.

The defendant does not contend that if within the 20 days the trial judge had disallowed, altered, or refused to alter the bill of exceptions, the aggrieved party could not forthwith file his petition at any time thereafter without waiting for the expiration of the 20-day period. In that case the trial

The defendant also cites Carr v. Cranston Print Works, 40 R. I. 376, 101 Atl. 120, and argues that certain language used by the court in its opinion recognizes the validity of the claim which he now makes. That case, however, dealt (1) with the sufficiency of the affidavit accompanying the petition to establish the truth of the exceptions, and (2) whether a supplementary affidavit covering the admitted omissions of the first affidavit and filed after the expiration of 30 days, the time limited by the rule, could be regarded as a compliance therewith. The part of the opinion quoted by the defendant, when read with its context, is nothing more than a description of the steps which had been pursued in that particular matter and has no bearing upon the question now being considered.

The defendant raised certain other questions: (1) That the petition contains no prayer that the truth of the exceptions and the correctness of the transcript be established; (2) that the petition is not verified by affidavit setting forth the rulings upon which the exceptions are based as required by rule 13 (62 Atl. ix) of this court; and (3) that the petition is not accompanied by an affidavit setting forth that the transcript cer

tified by the court stenographer is correct or incorrect as the case may be as required by said rule 13.

[2] After reciting the various steps taken by the plaintiff, the petition continues with and contains the following words:

"In order to establish the truth of said ex

of testimony."

judge would have exhausted his power ceptions and the correctness of said transcript through its exercise, while in the case at bar the exercise of the power had become impossible. We think it would be somewhat illogical to say that the statute should receive the restricted interpretation for which the defendant contends in the one case and a more liberal and broader construction in the other.

While the succeeding portion of the paragraph from which the above is quoted is unskillfully worded and somewhat confused, we think that it sufficiently appears that the defendant is asking for a hearing before this court for the purpose of establishing the truth of the exceptions and transcript, rather than for a final hearing upon exceptions which had neither been allowed nor estab

The defendant cites the case of Hartley v. Rhode Island Co., 28 R. I. 157, 66 Atl. 63, in support of the proposition that not until the expiration of 20 days after the filing | lished.

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