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provided by the policy, but the defendant de Henry A. Cutter, for plaintiff. Wason & nied liability, and pleaded the general issue.” Moran, for defendant. The defendant now asserts that the denial of liability referred to was the denial in REMICK, J. 1. The exclusion of the evicourt, and that there was nothing to show dence of Kiel and Dane presents nothing but denial of liability before suit, while the plain a question of remoteness. That the question tiff claims there was evidence of such denial of remoteness is left to the discretion of the from the first. Here, again, the transcript judge who tries the case is too well settled not being furnished, the doubt must be solv- in this state to need the citation of authority. ed against the defendant, who is the ex 2. It does not appear for what purpose the cepting party. So the question is, did the subsequent agreement was offered, nor upon court err in submitting the case to the jury what ground its exclusion was objected to. at all? It is admitted that in some circum If offered for the purpose of modifying the stances denial of liability will amount to a contract evidenced by the note in suit, to waiver of the arbitration clause. Not bay. have been admissible it must have been suping the whole case before us, we cannot say ported by a consideration. The plaintiff asthat the evidence did not tend to show such serts that it was wholly without consideraa waiver. If it did it was the duty of the, tion. This is not denied by the defendant. court to submit the question, with proper in The fact does not appear either way in the structions, which, the contrary not appear record. If the agreement was offered to ing, we must presume was done.
show an admission by the plaintiff as to the Judgment affirmed.
value of the premises, that he believed they would sell for so much more than $4,000,
that he was willing to obligate himself to (72 N. H. 11)
accept one-half of what they would sell for KENDALL V. FLANDERS.
in excess of that sum, in lieu of the interest (Supreme Court of New Hampshire. Hillsbor
to which he was entitled upon the note in ough. Jan. 7, 1903.)
suit, then it was competent and admissible, COMPETENCY OF EVIDENCE-TRIAL COURT'S unless in the judgment of the superior court DISCRETION-EXCEPTIONS.
it was too remote, which may have been the 1. Where the issue in an action is the value of certain land, and evidence of the amount
case. There is nothing in the record to show paid for other land in the vicinity is offered, the
the contrary. The purpose for which the determination of whether such sales were of a agreement was offered and the ground of the too remote time to have any bearing on the defendant's objection to its exclusion not apquestion in issue is in the discretion of the trial court.
pearing, the exception must be overruled.! 2. Where neither the purpose for which cer The party excepting “must show clearly and tain excluded evidence was offered nor the afirmatively from the record itself facts conground of the objection to the ruling thereon ap
stituting error in the proceeding below." 2 pears in the record, the exception to the trial court's ruling will be overruled.
Enc. Pi, & Pr. 424, 425.
Exceptions overruled. All concurred. Transferred from Superior Court.
Assumpsit by J. N. Kendall against Wil. liam 0. Flanders. Verdict for plaintiff, and
(72 N. H. 45) case transferred from the superior court on
THOMAS V. HARRINGTON et al. defendant's exceptions. Exceptions overruled.
(Supreme Court of New Hampshire. Grafton.
Feb. 3, 1902.) The note sued on was secured by mort. gage; and the question submitted to the jury
EXCAVATION IN STREET. was the value of the real estate acquired by
1. Owners of a house, who contract with one the plaintiff by foreclosure in July, 1901, as
to put in the water pipe from the road, six bearing upon the question of the amount due feet under ground, are, even if he is an indeupon the note.
pendent contractor, liable for injury to one The defendant offered to show by one Kiel
who, on a dark night, drives into the unguarded
and unlighted trench, the excavation constitutthe price paid at an auction sale in 1896 or ing a nuisance, and the danger arising directly 1897 for an adjoining tract of 10 acres, and from the work which they required to be done. that the land so purchased was not very dif Transferred from Superior Court. ferent from a part of the mortgaged prem
Action by Mary C. Thomas against James ises, and by one Dane the price at which va
J. Harrington and another. At the close of rious tracts situated within a mile or two
the plaintiff's evidence the court ordered a of the mortgaged premises had been sold verdict for the defendants, and the plaintiff within a few years. He also offered to show
excepted. Transferred from superior court. that subsequent to the date of the note he
Exceptions sustained. made an agreement with the plaintiff, whereby the mortgaged premises were to be sold,
The plaintiff': evidence tended to show that and the plaintiff was to receive one-half of
the defendants contracted in writing with one the proceeds of sale in excess of $4,000, in
McFadden to construct two dwelling houses lieu of interest. All this evidence was ex.
1. See Master and Servant, vol. 34, Cent. Dig. 88 cluded, and the defendant excepted.
for the defendants in the village of Littleton, work as an independent contractor. Upon and as a part of the contract the former was the modern authorities, the question of lia“to put in the water pipe from the main road, bility, under such circumstances, does not six feet under ground.” McFadden proceed depend upon an inquiry whether the parties ed to execute the contract in accordance with sustain the relation of master and servant, its terms, and, while working thereunder, by or whether the contract between them makes the instrumentality of servants employed by the enployé an independent contractor. The him, with whom the defendants had nothing employer cannot absolve himself from the du. to do, and over whom they had no control, ty which, under the law, he owes to another he dug a ditch in the street, from the water with reference to the performance of work pipe therein to the sidewalk in front of the which is dangerous in itself-as the digging defendants' premises, 12 feet long, 512 feet of a ditch in the highway. deep, and 2 feet wide, for the purpose of lay In Carter v. Berlin Mills, 58 N. H. 52, 42 ing a water pipe from the water main to the Am. Rep. 572, the defendant was held not to defendants' dwellings. McFadden, or his be responsible for flowing the plaintiff's land, servants employed on the work, negligently not merely because it had employed an inde left the trench unguarded and unlighted in pendent contractor to float the logs down the the evening, although the evening was a dark river, but also because the injury was not one, and the electric lights for a part of the the direct result of the work it employed the time were unlighted; and the plaintiff, while Thurstons to do. The court say (page 59, riding along the street, in the exercise of or 58 N. H., 42 Am. Rep. 572): “The plaintiff's dinary care, was thrown from her carriage injury was not the natural result of the and injured, in consequence of her horse work contracted to be done. A reasonable falling into the ditch.
use of the dams for proper purposes, and a
reasonable use of the stream for the transEverett C. Howe and Scott Sloane, for
portation of logs, were lawful, and the auplaintiff. Batchellor & Mitchell and Smith &
thority conferred by the defendants was to Smith, for defendants.
execute the contract by a proper and reason
able use of all its means and appliances." WALKER, J. It is not necessary to de If it had appeared in that case that the work cide whether McFadden was an independent which the contractors agreed to do would contractor in the work of putting in the wa. necessarily produce the damage the plaintiff
' ter pipe, or merely an agent of the defend suffered, it is believed the opposite result ants; for in either case the evidence was le would have been reached, as was the case gally competent to support a verdict in fa in McDonell v. Boom Co., 71 Mich. 61, 38 vor of the plaintiff. From the written con N. W. 681. It was held in that case that tract it appears that the defendants employed where a boom company, having full control McFadden to build two houses upon their and management of a stream and the dams premises. One of the specifications of the thereon, contracts for driving logs therein, contract was “to put in the water pipe from the reasonable performance of which conthe main road, six feet under ground.” The tract obliges the contractor to so run and evident purpose of this provision was to se manage the logs and water as to damage ricure a conuection with the water main, parian owners, such damage is legally atwbich would require the digging of a ditch tributable to the company, and may be reinto the public highway. That the parties covered of it. This doctrine is recognized in had in mind the excavation of a ditch in Knowlton v. Hoit, 67 N. H. 155, 30 Atl. 346, the highway is not open to doubt upon a and in Manchester v. Warren, 67 N. H. 482, reasonable construction of the contract. It 32 Atl. 703. See, also, Pittsfield, etc., Co. v. was a necessary and anticipated part of the Shoe Co., 71 N. H. 522, 53 Atl. 807. In Bower work which the defendants employed MC v. Peate, 1 Q. B. Div. 321, 326, Lord CockFadden to do. Such an excavation in a street burn says: "There is an obvious difference is a nuisance, because it renders public travel between committing work to a contractor to dangerous, and makes extra precautions nec be executed, from which, if properly done, no essary for the protection of travelers. Hence injurious consequences can arise, and handit becaine the duty of the defendants, who ing over to him work to be done from which authorized and caused the ditch to be dug, mischievous consequences will arise unless to protect the public from the danger occa preventive measures are adopted. While it sioned thereby. They knew the work could may be just to hold the party authorizing not be done, in its reasonable and proper work in the former case exempt from liabiliprosecution, without increasing the danger ty for injury resulting from negligence which of public travel in the highway at that point. he had no reason to anticipate, there is, on The danger arose directly from the work the other hand, good ground for holding him which they required to be done, and not from liable for injury caused by an act certain to the negligent manner of its performance. In be attended with injurious consequences, if such a case one cannot avoid responsibility such consequences are not in fact prevented, for the consequences naturally to be appre no matter through whose default the omishended in the course of the performance of sion to take the necessary measures for such the work by employing another to do the prevention may arise.” To the same effect
are Hardaker v. Council (1896] 1 Q. B. 335; the general rule that the employer is not liaPenny v. Council (1898) 2 Q. B. 212, 217; ble for the negligence of an independent conHolliday v. Telephone Co.  2 Q. B. 392; tractor, and it is probable the court adopted Gray v. Pullen, 5 B. & S. 970. The Ameri that view of the nature of the contract. In can courts generally take the same view of the case of Black v. Finance Co. (1894] A. C. the law. In Robbins v. Chicago, 4 Wall. 657, 48, under a similar state of facts, the defend678, 18 L. Ed. 427, it is said that an employ ant was held liable. er is liable "where the work to be done nec As the case does not disclose that permisessarily constituted an obstruction or defect sicn was obtained from the selectmen to dig in the street or highway, which rendered it up the street by either the defendants or Mcdangerous as a way for travel and transpor Fadden (Pub. St. c. 82, 88 1, 2), the effect of tation unless properly guarded or shut out such permission upon the defendants' liabilifrom public use; that in such cases the prin- ty, if any, has not been considered. The cipal for whom the work was done could not result is that the order of the court directing defeat the just claim
of the injured a verdict for the defendants was error. party by proving that the work which con Exceptions sustained. stituted the obstruction or defect was done by an independent contractor. * Where CHASE, J., was absent. The others conthe obstruction or defect caused or created curred. in the street is purely collateral to the work contracted to be done, and is entirely the re
(72 N. H. 1) sult of the wrongful acts of the contractor or his workmen, the rule is that the employer PACKARD V. METROPOLITAN INS. CO. is not liable; but where the obstruction or (Supreme Court of New Hampshire. Merridefect which occasioned the injury results
mack. Jan. 6, 1903.) directly from the acts which the contractor
LIFE INSURANCE-"SOUND HEALTH"-SUFFI. agrees and is authorized to do, the person
CIENCY OF EVIDENCE. who employs the contractor and authorizes 1. The expression "sound health,” used in a him to do those acts is equally liable to the
provision in a life insurance policy, means, gen
erally, the absence of any vice in the constituinjured party.” See, also, Water Co. v. Ware,
tion, and of any disease of a serious nature that 16 Wall. 566, 576, 21 L. Ed. 485; Gorham v. has a direct tendency to shorten life, in contraGross, 125 Mass. 232, 28 Am. Rep. 234; distinction to a temporary ailment or indisposi
tion. Woodman v. Railroad, 149 Mass. 335, 21 N.
2. An insurance policy sued on waived the E. 482, 4 L. R. A. 213, 14 Am. St. Rep. 427; fact that the insured's father had died of couNorwalk Gaslight Co. v. Norwalk, 63 Conn. sumption, but provided that the company as493, 522, 28 Atl. 32; Deming v. Railway, 169
sumed no liability prior to its date, nor unless
the insured was in sound health then, and omitX. Y. 1, 61 N. E. 983, 88 Am. St. Rep. 521;
ted the usual warranty in the application. Wilson v. White, 71 Ga. 506, 51 Am. Rep. When the insured, a boy 10 years old, was ex269; Circleville v. Neuding, 41 Ohio St. 465; amined, he was found in good health, but beHawver v. Whalen, 49 Ohio St. 69, 29 N. E.
fore the policy was delivered he was taken
with an illness from which he died inside of 6 1019, 14 L, R. A. 828; Covington, etc., Co. v. months. At the delivery of the policy the inSteinbrock, 61 Ohio St. 215, 224, 55 N. E. sured's mother did not kvow the nature of his 618, 76 Am. St. Rep. 375; Matheny v. Wolffs, disease, and he appeared to suffer only from a
temporary ailment, the disease being undiscov2 Duv. 137; Carlson v. Stocking, 91 Wis.
erable except to a physician, and one not infre432, 65 X. W. 58; Independence v. Slack, 134 quent with children, and often outgrown. The Mo. 66, 34 S. W. 1094; Spence v. Schultz, attending physician's testimony was that the
insured died of heart disease and consumption, 103 Cal. 208, 37 Pac. 220. In Wright v. Hol
which latter might have been inherited, and brook, 52 N. H. 120, 13 Am. Rep. 12, the de
been the cause of the heart disease. Held, that fendant, as one of a committee representing the jury was warranted in finding that the inthe town of Keene, employed Nourse as an
sured was not in sound health at the date of the
policy. independent contractor to clear a piece of woodland belonging to the town; and it was Transferred from Superior Court; Peaslee, held that he was not liable for damages caus Judge. ed by a fire which was set by Nourse to Assumpsit by one Packard against the burn the brush on the lot, and which escaped, Metropolitan Insurance Company. Verdict through the latter's negligence, onto the for defendant, and case transferred from the plaintiff's adjoining woodlot. The questions superior court on plaintiff's exceptions. Exwhether the work Nourse was employed to ceptions overruled. do was essentially dangerous to the property
The insured was the 10 year old son of the of others, and whether, if it was, the defend.
plaintiff. The application for the insurance ant could escape liability therefor because
was made by the plaintiff on September 5th, of the contract, were not discussed by the
and the boy was examined by the defendcourt or raised by counsel. If it is assumed
ant's physician the next day, and was rethat the work done in a reasonable way, or
ported by him to be in good health. Therein the way contemplated by the parties,
after, and before the policy was delivered, would not constitute a menace to the proper
the boy fell sick of a disease of the heart, ty of others, and require extra precautions for protection, the decision is in accord with
T 1. See Insurance, vol. 28, Cent. Dig. $ 689.
from which he died on March 8, 1901. Sep born with the seeds of mortality in us." So tember 16th the plaintiff took him to a phy detinition can be given to these words that sician, wbo found that he had a disease of will apply in all cases. A mere temporary the heart, but did not inform the plaintiff | indisposition or ailment would not ordinariof his discovery; and she had no knowledge ly be regarded as rendering the health un. that the boy had such disease. The disease sound, within the meaning of these words was undiscoverable except upon examination when used in an insurance contract. Speakby a physician, is not infrequent with chil ing generally, they mean the absence of any dren, and is frequently outgrown. At the vice in the constitution, and of any disease date of the policy and the time of its deliv of a serious nature that have a direct tendery, there was nothing in the actions and ap ency to shorten life; the absence of a condipearance of the boy to indicate to ordinary tion of health that is commonly regarded as observation that he had anything more than disease, in contradistinction to a temporary a temporary ailment. The boy's father died ailment or indisposition. Cushman v. Inof consumption, and that fact was waived surance Co., 70 N. Y. 72, 77; Brown v. Inby the defendant in the policy. The attend surance Co., 65 Mich. 306, 32 N. W. 610, 3 ing physician testified that the boy died of Am. St. Rep. 894; Metropolitan Ins. Co. v. heart disease and consumption, and that the Howle, 62 Ohio St. 204, 56 N. E. 908. Whethconsumption might have been an inheritance er, in a given case, a person is of sound from the father, and the cause of the heart health, must, of course, depend upon the cirdisease. The policy contained the following: cumstances of the case. "It must obviously "Provided, however, that no obligation is as be very difficult to determine questions like sumed by the company prior to the date these by any general rule. And it is the hereof, nor unless on said date the insured usual practice to leave these questions to the is alive, and in sound health." The appli- jury." 2 Par. Cont. (8th Ed.) *167; Billings cation contained a like provision. The policy v. Insurance Co., 70 Vt. 477, 41 Atl. 516; also contained the following: “This policy | Dorey V. Insurance Co., 172 Mass. 234, 51 is issued upon an application which omits N. E. 974; Cushman v. Insurance Co., 70 N. the warranty usually contained in applica Y. 72, 77; Grattan v. Insurance Co., 92 N. tions, and contains the entire agreement be Y. 274, 44 Am. Rep. 372. The question of tween the company and the insured and the sound health resembles in this respect the holder and the owner hereof."
question whether a ship has been “in colli
siou" (London Assurance v. Companhia, 167 Martin & Howe, for plaintiff. Brown,
U. S. 149, 17 Sup. Ct. 785, 42 L. Ed. 113), or Jones & Warren, for defendant.
whether a person was of “temperate habits”
(Insurance Co. v. Foley, 105 U. S. 350, 26 CHASE, J. The parties introduced into L. Ed. 1055), or whether premises were "vatheir contract a provision “that no obligation cant by the removal of the owner or occuis assumed by the company prior to the date pant” (Stone v. Insurance Co., 69 N. H. 438, hereof, nor unless on said date the insured 45 Atl. 235). is alive, and in sound health.” That they It must be inferred from the fact that a had authority to limit the contract in this general verdict was rendered in favor of the way cannot be doubted. Dwight v. Insur defendant that it was found as a fact that the ance Co., 103 N. Y. 341, 8 N. E. 654, 57 Am. insured was not in sound health at the date Rep. 729. The question to be considered of the policy. The facts specifically reportarises upon this provision, not upon a repre ed warrant this finding. After the boy was sentation or warranty made by the plaintiff examined by the defendant's physician, and in the application for insurance. There was before the date of the policy, he “fell sick no warranty in the application, and it does of a disease of the heart," from which he not appear that any representation was made died within six months. Although the distherein concerning the health of the assured. ease was one that was not infrequent among The entire contract is contained in the poli- children, and is frequently outgrown, it could cy.
The question, then, is, what did the not reasonably be regarded as a temporary parties intend by this provision? It must be ailment, or as not of a serious nature. A presumed that they intended what the words person having such a disease would not be used by them ordinarily signify in common regarded as in sound health. The fact that speech. This leaves little room for interpre the plaintiff was not aware of the nature of tation, since there is but slight ambiguity in the disease, and that its nature was undisthe terms of the provision, No obligation coverable except by a physician, did not prewas assumed by the defendant unless the in vent it from rendering the boy's health unsured was alive, and in sound health, on the sound. Undoubtedly, the testimony of the day of the date of the policy. The defend mother and others that the boy appeared to ant's promise was not absolute, but condi be in good health would be competent evi. tional. The existence of life and sound dence on the issue of soundness, but it would health in the insured was a condition prece not be conclusive. The testimony of physi. dent to the promise of insurance. But what cians concerning the condition of his health, was meant by the words "sound health”? discovered by their examinations of him, Evidently, not perfect health., “We are all would also be competent In Dorey v. In,
Case, for negligently causing the death of
surance Co., supra, several persons testified for the jury, he, when last seen before the acthat the insured appeared to be in good cident, having been getting down with his lanhealth, and was working as usual at the date
tern over the side of the car nearly opposite.
the switch, for the purpose, evidently, of setof the policy; but the testimony of physi ting the switch, as was his duty, he having had cians tended to prove that he had a disease exteusive experience as a brakeman, a very of a serious nature, which was not apparent
brief time having elapsed from the time he
alighted till he cried out, and it being competo common observation, and the question of
tent to infer that he was proceeding to reach the soundness of his health was submitted to the switch in the way an experienced brakethe jury. See, also, Billings v. Insurance Co., man would adopt under the circumstances, and
that this would be a reasonably prudent way. supra.
Presumably, the attending physician's tes. Exceptions from Superior Court; Young, timony that the boy died of heart disease Judge. and consumption, and that the consumption Action by Michael Murray, administrator, might have been inherited from the father, against the Boston & Maine Railroad. Verand caused the heart disease, was considered dict for plaintiff. Defendant excepts. Exand weighed by the court in connection with ception overruled. all other testimony in the case, and in view of the defendant's waiver of the fact that
Baker, the plaintiff's intestate. Trial by the boy's father died of consumption. If the
jury, and verdict for the plaintiff. At the boy was sick with consumption at the date
close of the plaintiff's evidence, the defendof the policy, no one would say that he was ant's motion for a nonsuit was denied, subin sound health. As the record is under- ject to exception. Transferred from the May stood, the waiver related to the liability of term, 1902, of the superior court by Young, the boy's having consumption in the future J. The plaintiff's evidence tended to prove as an inheritance from his father, and not to
the following facts: At the time of the acthe existence of the disease at the date of
cident, and for some time prior thereto, Bakthe policy. The defendant waived the possi
er was in the employ of the defendant as a ble defect in the boy's constitution arising freight brakeman. The crew to which he from the existence of the disease in his fa
belonged had no regular run, but worked on ther, but not the present, active existence
extras on the lines of the defendant's road of the disease in the boy himself. It is running out of Nashua. During the two highly improbable that they would insure
months before the accident, they had been the life of a person actually sick with con
over the road from Nashua to Keene about a sumption, but they might take the risk of dozen times. The accident occurred in the insuring a son whose father died of con
yard at Greenfield, at about 2 o'clock in the sumption, and in whom the disease had not
morning, while the crew were engaged in appeared.
making up their train. Baker was the "midExceptions overruled. All concurred.
dle man,” and it was his duty to throw a switch after certain loaded coal cars had
been drawn from a side track upon the main (72 X. H. 32)
track. While the cars were in motion, some MURRAY V. BOSTON & M. R. R. one with a lantern was seen by one of the (Supreme Court of New Hampsbire. Hillsbor
men on the car next to the rear one, and ough. Feb. 3, 1903.)
when nearly opposite the switch the lantern INJURY TO BRAKEMAN-RES GESTÆ-DECLA
disappeared, going down by the side of the RATION-ASSUMPTION OF RISK-CON
car, on the side of the track opposite the TRIBUTORY NEGLIGENCE.
switch. On this side of the track there was 1. Declaration of one within two minutes after he was run over by a car, and while he was
a "jigger stand," about six feet from the lying between planks, with his legs nearly cut switch, consisting of two planks placed at off, that it hapened from his falling over the right angles with the track, and within two planks, is part of the res gestæ.
or three inches of it, and extending back 2. Whether a brakeman who was run over by cars, he having stumbled over a "jigger
some fifteen feet. Such appliances are used stand," consisting of two planks, for a hand by the section men in running their cars car, close to the track, and within 10 feet of a from the track. There was no car house at switch which he was about to operate, knew or ought to have known of the stand, negligently
this point, and the stand had not been used placed there, so that he cau be held to have as
for two or three years. Just after the lansumed the risk, is a question for the jury, tern disappeared, and as soon as the car though he had been over the road 10 or 12
passed the switch and stopped, Baker was times within two months of the accident; men who had worked with him during that time tes
heard to cry out and groan; and one of the tifying that they had not noticed it before, and witnesses at once ran to him, and found him it appearing that such stands are seldom placed lying between the planks, his back to the near switches, and usually lead into car houses, which afford notice of their presence, while in
track, with both legs nearly severed from his this case there was no such house.
body. Another witnesses, who reached the 3. Whether a brakemau, who, stumbling over place in less than two minutes after he heard a jigger stand within 10 feet of a switch, was the outcry, asked Baker what the matter run over by the cars, exercised reasonable care in the performance of his work, is a question
was, and he replied that he had lost his legs.
The witness asked, "How did you do that?" 1. See Evidence, vol. 20, Cent. Dig. $ 372.
and Baker replied, "I fell over these old 54 A.-19