(108 A.)

tively "hangers," and in the other instance were made in English, a language which the deceased spoke very poorly. Against the prima facie effect of these statements the trial court might well have placed the probabilities arising out of the nature of the injury suffered, the relative positions of the rods and the hangers with reference to the chutes, and the manner in which they were respectively fastened to it, as well as the evidence tending to prove that when the deceased came on duty that night there were no hangers on the chutes, that other engines had been run back and forth past the chutes before the one on which the deceased was injured, and that only one chute had been used that night. To hold unwarranted the trial court's conclusion that the injury was due to a blow from one of the rods rather than from a hanger would be to invade its right to determine the facts in the case.

"A court is not required to promote the construction of such a cobhouse of inferences."

[5, 6] The guarded language of the last two decisions points the way to the true rule. To hold that an inference may not ever be rested upon an inference would be to do violence to many decisions of this court. Thus motive is relevant in a criminal case only as affording a basis of an inference of guilt from its presence or of innocence from its absence; yet "motive is a fact which may be inferred from circumstances." State v. Buonomo, 88 Conn. 177, 184, 90 Atl. 225, 227; State v. Saxon, 87 Conn. 5, 86 Atl. 590. So, on the issue of the mental capacity of a testator, words and acts prior and subsequent to the execution of the will are admissible that from them his mental capacity at the time of their occurrence may be inferred, and from his condition then a further inference may be drawn as to his condition when the will was executed. Cullum v. Colwell, 85 Conn. 459, 465, 83 Atl. 695. And for other similar illustrations of inferences resting upon inferences, see Spencer's Appeal, 77 Conn. 638, 60 Atl. 289; Moffitt v. Connecticut Co., 86 Conn. 527, 86 Atl. 16; State v. Williams, 90 Conn. 126, 130, 96 Atl. 370. There is in fact no rule of law that forbids the resting of one inference upon facts whose determination is the result of other inferences. 1 Wigmore, Evidence, § 41; State V. Fiore, 85 N. J. Law, 311, 88 Atl. 1039. It is but a rule of caution; its true function is to guide the court in the exercise of its judgment in determining whether or not evidence offered is too remote (Wynehouse v. Mandelson, 84 Conn. 613, 617, 80 Atl. 706); or, in making its final decision, in deciding whether the plaintiff has established a reasonable probability (Hoyt v. Danbury, 69 Conn. 341, 348, 37 Atl. 1051).

[4] But the defendant contends that the trial court in the main arrived at its conclusions of fact, not from direct testimony, but by inference, and that to apply to conclusions so arrived at the res ipsa loquitur doctrine is to build inference upon inference in a way which the law will not permit. It is true that largely the trial court's conclusions as to the manner of the accident were by way of inference; and it is also true that the doctrine res ipsa loquitur is nothing more than a label for the principle that in certain cases a court may, from the proven facts, infer the ultimate fact, of negligence. Stebel v. Connecticut Co., 90 Conn. 24, 26, 96 Atl. 171; Thorson v. Groton & Stonington Street Ry. Co., 85 Conn. 11, 15, 81 Atl. 1024; Zeigler v. Danbury & Norwalk R. R. Co., 52 Conn. 543, 554, 2 Atl. 462; Button v. Frink, 51 Conn. 342, 347, 50 Am. Rep. 24. But we cannot grant that the trial court committed error in taking these successive steps to its conclusion. The reasons of appeal which have not been, In State v. Kelly, 77 Conn. 266, 271, 58 Atl. in effect at least, already answered do not 705, 707, this court said:

merit discussion. No ground exists for cor

"Evidence for the purpose of creating an in-recting the finding; and the trial court was ference of a fact upon which to base an inference of another fact is generally inadmissible.

It is too remote."

And in Levidow v. Starin, 77 Conn. 600, 603, 60 Atl. 123, 124, this court said:

justified in holding that the conditions specified in Stebel v. Connecticut Co., supra, as requisite for the application of the doctrine res ipsa loquitur had been fulfilled.

There is no error.

The other Judges concurred.

(79 N. H. 326)

SPILENE v. SALMON FALLS MFG. CO.

(No. 1610.)

7. MASTER AND SERVANT 265(14)-EMPLOY

ER MUST PROVE CONTRIBUTORY. NEGLIGENCE. In an action for the death of a servant, the burden is on the defendant to show con

(Supreme Court of New Hampshire. Strafford. tributory negligence. Jan. 6, 1920.)

1. MASTER AND SERVANT

403-EMPLOYER

TO AVOID MODIFIED COMMON-LAW LIABILITY

8. MASTER AND SERVANT

289(1)—CONTRIB

UTORY NEGLIGENCE QUESTION FOR JURY. A showing that the accident might have reMUST PROVE ACCEPTANCE OF WORKMEN'S sulted either from injured servant's negligence COMPENSATION LAW. or without it does not compel a finding that it resulted from his fault so as to authorize a nonsuit.

In an action for the death of a servant doing work of a character to make the Workmen's Compensation Act applicable, a nonsuit should not be granted because plaintiff has not offered evidence that defendant employer had not taken the steps necessary to avoid the application to it of the provisions of section 2, modifying employers' common-law liability; such issue lying more particularly within defendant's knowledge. 2. EVIDENCE 90, 94-"BURDEN OF PROOF"

DEFINED.

The phrase "burden of proof," in its true sense, means the risk of nonpersuasion upon the evidence in the case, but is also used to designate the duty to go forward and produce evidence, and, as used in the first and true sense, the burden once fixed by the pleadings never shifts, while in the secondary sense it frequently shifts during the progress of the trial.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Burden of Proof.]

3. MASTER AND SERVANT

286(1), 289(1)QUESTIONS ON MOTION FOR DIRECTED VERDICT IN CASE COMING UNDER EMPLOYERS' LIABILITY ACT.

On a motion for a directed verdict in a case under the general provisions of the Workmen's Compensation Act, the questions are whether there is any evidence of defendant's negligence and whether employé's negligence is conclusively established.

Exceptions from Superior Court, Strafford County; Marble, Judge.

Action by Mary Spilene against the Salmon Falls Manufacturing Company. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

The evidence tended to prove the following facts: The defendant operates cotton mills, and Spilene was employed by it to handle bales of cotton in its storehouse. There was no floor, and the bales rested on large timbers placed some distance apart. The bales were piled to a considerable height, and it was the practice to remove them tier by tier, instead of layer by layer. When a new tier was started on, the bales were so removed that the end of the tier formed a series of steps each one bale high, and this formation was preserved as the work progressed. The bales weighed several hundred pounds each, and were covered with burlap. The method of handling was for two men, one at either end of a bale, to pull it out with hooks. They then got behind it and rolled it down the steps. These hooks frequently pulled

out when force was applied to them. This sometimes resulted from the fact that the burlap was poor; but the same thing occurred when the hook was inserted into the cotton. On the day of the accident Spilene and a fellow workman were engaged in removing bales by the method above described. Spilene was at the end of the bale, which

brought him at the outer edge of the tier. They were working at a height of several bales above the timbers. Spilene inserted his hook, and when he pulled it gave way, and he was precipitated over the edge of the tier and onto the timbers below, striking his head and receiving the injuries which caused his death.

As tending to show that it was reasonable to contend that the storehouse should have been provided with a floor, the plaintiff was permitted to show, subject to exception, the value of the cotton stored.

The defendant moved for a nonsuit and

for a directed verdict, and that the jury be instructed that the case was to be determined as at common law, since there was no evidence that the defendant had not accepted

(108 A.)

the provisions of Laws 1911, c. 163. The mo- [ certain phases of a case the party not having tions were denied, and the defendant ex- the burden of proof shall produce evidence, cepted. upon pain of that issue being decided against him if he declines to do so.

John L. Mitchell, of Portsmouth, and Hughes & Doe, of Dover, for plaintiff. Branch & Branch, of Manchester, and Doyle & Lucier, of Nashua, for defendant.

PEASLEE, J. The case was tried, and the general merits of it have here been argued, upon the theory that the defendant's common-law liability was modified by the provisions of the Employers' Liability Act applicable to those who have not accepted its other provisions. Laws 1911, c. 163, § 2. It appeared in evidence that Spilene's work was of a character to make the statute applicable, but there was no evidence that the defendant had or had not accepted the compensation features of the act. In this state of the proof the defendant requested a ruling that the rights of the parties were to be determined as at common law, because the plaintiff had not offered evidence that the defendant had not taken the steps necessary to avoid the application to it of the provisions of section 2. The motion was denied, and the jury were instructed that the case was to be decided under that section.

[1] There was no error in this instruction. That section is a general rule of law, applicable in all cases unless the defendant has taken certain steps whereby he is relieved from the general obligation. It is not greatly unlike general prohibitory laws, with provisions for securing licenses. As to these it is well settled in this jurisdiction that the burden is on the one asserting that he has a license to produce evidence of it. Notwithstanding the vigorous attacks upon this rule, it has been upheld for the reasons that it is too well established and too convenient to be abandoned. State v. Keggon, 55 N. H. 19, and cases cited. As was said in State v. Perkins, 53 N. H. 435, 436, the rule "has been found extremely convenient in practice, and is likely to be equally so hereafter,

it has resulted in no practical injustice, and is not likely to result in any hereafter."

[2] The phrase "burden of proof" has been used in two very different senses. In its true sense it means the risk of nonpersuasion upon the evidence in the case. But it is also used to designate the duty to go forward and produce evidence. In the first and true sense of the term the burden once fixed by the pleadings never shifts. In the secondary sense it frequently shifts during the progress of a trial. Wig. Ev. § 2489.

The argument against the free application of the idea that under certain circumstances the defendant should be called upon to produce evidence rests in its final analysis upon the theory that, since the plaintift makes a charge, he must prove it. But this general rule is not now, and never has been, carried to the extreme limit of its logic. Many defenses are treated as matters in confession and avoidance; and, when they are pleaded, the burden is put upon the defendant in both senses. He has the duty to go forward and produce evidence and also the risk of nonpersuasion. If he is sued upon. a promissory note, he must seasonably deny his signature, or his nonaction is taken as his admission of the signature. The logic of the general principle that the plaintiff should have the duty to go forward and the risk of nonpersuasion has always been modified by the application of what was at the time deemed to be the common sense of the situation. It may be that many of the cases have gone too far in this respect. It is undoubtedly true that the authorities are not harmonious; yet the essential soundness of the principle which they have sought to apply cannot be doubted.

The rule as here applied by the superior court goes no further than to hold that under certain circumstances the defendant is bound to produce evidence to sustain its claim for exemption from the operation of *a general statute. It is merely a subsidiary rule of procedure. It is just, convenient, and well established in this state. No sufficient reason appears for its abandonment. [3] As the case comes under the general provisions of the Employers' Liability Act, the issue of assumption of risk is eliminated, and on the motion for a directed verdict the questions are whether there was any evidence of the defendant's negligence, and whether the decedent's negligence was conclusively established. Nawn v. Railroad, 77 N. H. 299, 91 Atl. 181; Ouelette v. Company, 105 Atl. 414. The defendant claims that its motion should have been granted on both grounds.

Procedure in this jurisdiction is what justice and convenience require. The rule in question has been criticized chiefly upon the ground that it attempts to shift the burden of proof upon one of the issues in the Lisbon v. Lyman, 49 N. H. 553. But this is not a necessary result. A rule that upon an issue lying more particularly within the knowledge of one party he shall disclose his knowledge or the issue shall be decided against him does not of necessity involve the further rule that, if the evidence is produced, and the matter proves to be a disputed one, the burden is upon the party [4] The negligence charged is failure to not having it generally in the trial. Jus- provide a reasonably safe work place and tice and convenience may require that in a proper method for conducting the work.

as men frequently applied it. It was an or-
dinary occurrence and might result from or-
dinary conduct. The burden was on the de-
fendant to show contributory negligence, and
merely showing that an occurrence might
have resulted either from such neglect or
without it does not compel a finding that it
resulted from the workman's fault. Nawn
v. Railroad, 77 N. H. 299, 305, 91 Atl. 181.
Exceptions overruled.
All concurred.

The defendant's operations in the storehouse | hook did not show fault on the part of the involved two manifest and avoidable dan- man using it. Being a frequent occurrence, gers. The use of timbers with considerable it occurred when the hook had been applied spaces between them instead of a floor made it highly probable that if an employé fell he would receive severe injury. Taking the bales of cotton down tier by tier instead of layer by layer made it necessary that one of the workmen should be engaged in work close to the brink of the tier, so that, if he slipped from any cause, he might fall a considerable distance and strike upon the uncovered timbers. Add to these two circumstances the further fact that the heavy bales were handled by the use of hooks which not infrequently pulled out when the large amount of force necessary to move a bale was applied, and it is evident that the combination is one which prudent men might (Supreme Court of New Hampshire. think ought to have been avoided. Especially is this true when, as in this case, the avoidance would have involved no expense 1. MASTER AND SERVANT 121(5)—LEAVING and no inconvenience. There was therefore sufficient evidence of the defendant's negligence.

REGNIER v. RAND.

borough. Dec. 2, 1919.)

(79 N. H. 310)

SLAB SAW UNGUARDED NEGLIGENCE.

Hills

The fact that a sawmill employé's work required him to stand very near an unguarded slab saw warrants a finding that the employer was negligent in leaving it unguarded. 2. MASTER AND SERVANT 361 – EMPLOYÉS

[5] As bearing upon this issue, the plain-
tiff was permitted to show the value of the
cotton the defendant had in storage. This
fact was offered and admitted solely for
the purpose of showing that it was reason-
able to claim that the defendant should have
provided a floor in the storehouse. Evidence
that changes would require but a small ex-
penditure is admissible to show that the
change was reasonably demanded. Haskell
v. Railway, 73 N. H. 587, 64 Atl. 186.
Whether an expenditure would be reasonable
or excessive is largely a matter of compari-
son. The adoption of certain safety devices
that would add but an infinitesimal percent-borough County; Allen, Judge.
age to the cost of operating in this store-
house might be reasonably demanded, al-
though the same devices would unreason-
ably increase operating cost to a vender of
merchandise inconsiderable in quantity or
value, and therefore could not be demanded
of him. The money value of the commodity
handled has some tendency to prove the is-
sue in question. Being relevant, it is ad-
missible, so far as this court is concerned.
Whether it should have been excluded as
too remote, or as tending to prejudice the
defendant in other aspects of the case were
questions to be decided by the judge who
presided at the trial.

ENTITLED TO BENEFIT OF WORKMEN'S COM-
PENSATION LAW.

The test to determine whether a mill employé is entitled to the benefit of Workmen's er he was engaged in manual and mechanical Compensation Law, §§ 1, 2, is to inquire whethlabor, whether any part of his work was done in proximity to hoisting apparatus or power driven machinery, and whether five or more persons engaged in manual or mechanical labor were employed in or about the mill.

Transferred from Superior Court, Hills

Action by one Regnier against one Rand. Transferred without ruling from the superior court on the question of applicability of a statute. Case discharged.

Case for negligence. The plaintiff, who worked in the defendant's sawmill, struck his hand against an unguarded slab saw. There were four other men engaged in manual labor, employed in and about the mill. The question of whether the plaintiff is entitled to the benefit of Laws 1911, c. 163, was transferred without a ruling by Allen, J., from the January term, 1919, of the superior court.

James E. Banigan and Samuel J. Dearborn, both of Manchester, for plaintiff.

Warren, Howe & Wilson, of Manchester, for defendant.

[6-8] It is also claimed that Spilene was negligent, and that therefore there can be no recovery here. It is said that he fell because his hook pulled out, that the hook pulled out because he did not get a good hold, and YOUNG, J. [1] The fact the plaintiff's that failure to secure a good hold was neg-work required him to stand very near a saw ligence. But the evidence was that hooks would warrant a finding that the defendant very frequently pulled out when force was was negligent in leaving it unguarded. Osapplied to them. This would warrant a man v. W. H. McElwain Co., 78 N. H. 597, 99 conclusion that the mere pulling out of a Atl. 287.