provided by the policy, but the defendant denied liability, and pleaded the general issue." The defendant now asserts that the denial of liability referred to was the denial in court, and that there was nothing to show denial of liability before suit, while the plaintiff claims there was evidence of such denial from the first. Here, again, the transcript not being furnished, the doubt must be solved against the defendant, who is the excepting party. So the question is, did the court err in submitting the case to the jury at all? It is admitted that in some circumstances denial of liability will amount to a waiver of the arbitration clause. Not having the whole case before us, we cannot say that the evidence did not tend to show such a waiver. If it did it was the duty of the, court to submit the question, with proper instructions, which, the contrary not appearing, we must presume was done. Judgment affirmed.

(72 N. H. 11)

KENDALL v. FLANDERS. (Supreme Court of New Hampshire. Hillsborough. Jan. 7, 1903.)

COMPETENCY OF EVIDENCE TRIAL COURT'S DISCRETION-EXCEPTIONS.

1. Where the issue in an action is the value of certain land, and evidence of the amount paid for other land in the vicinity is offered, the determination of whether such sales were of a too remote time to have any bearing on the question in issue is in the discretion of the trial court.

2. Where neither the purpose for which certain excluded evidence was offered nor the ground of the objection to the ruling thereon appears in the record, the exception to the trial court's ruling will be overruled.

Transferred from Superior Court.

Assumpsit by J. N. Kendall against William O. Flanders. Verdict for plaintiff, and case transferred from the superior court on defendant's exceptions. Exceptions overrul

ed.

The note sued on was secured by mortgage; and the question submitted to the jury was the value of the real estate acquired by the plaintiff by foreclosure in July, 1901, as bearing upon the question of the amount due upon the note.

The defendant offered to show by one Kiel the price paid at an auction sale in 1896 or 1897 for an adjoining tract of 10 acres, and that the land so purchased was not very different from a part of the mortgaged premises, and by one Dane the price at which various tracts situated within a mile or two of the mortgaged premises had been sold within a few years. He also offered to show that subsequent to the date of the note he made an agreement with the plaintiff, whereby the mortgaged premises were to be sold, and the plaintiff was to receive one-half of the proceeds of sale in excess of $4,000, in lieu of interest. All this evidence was excluded, and the defendant excepted.

Henry A. Cutter, for plaintiff. Wason & Moran, for defendant.

REMICK, J. 1. The exclusion of the evidence of Kiel and Dane presents nothing but a question of remoteness. That the question of remoteness is left to the discretion of the judge who tries the case is too well settled in this state to need the citation of authority.

2. It does not appear for what purpose the subsequent agreement was offered, nor upon what ground its exclusion was objected to. If offered for the purpose of modifying the contract evidenced by the note in suit, to have been admissible it must have been supported by a consideration. The plaintiff asserts that it was wholly without consideration. This is not denied by the defendant. The fact does not appear either way in the record. If the agreement was offered to show an admission by the plaintiff as to the 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 accept one-half of what they would sell for in excess of that sum, in lieu of the interest to which he was entitled upon the note in suit, then it was competent and admissible, unless in the judgment of the superior court it was too remote, which may have been the case. There is nothing in the record to show the contrary. The purpose for which the agreement was offered and the ground of the defendant's objection to its exclusion not appearing, the exception must be overruled. The party excepting "must show clearly and affirmatively from the record itself facts constituting error in the proceeding below." 2 Enc. Pl. & Pr. 424, 425.

Exceptions overruled. All concurred.

(72 N. H. 45) THOMAS V. HARRINGTON et al. (Supreme Court of New Hampshire. Grafton. Feb. 3, 1902.)

NEGLIGENCE-INDEPENDENT CONTRACTOREXCAVATION IN STREET.

1. Owners of a house, who contract with one to put in the water pipe from the road, six feet under ground, are, even if he is an independent contractor, liable for injury to one who, on a dark night, drives into the unguarded and unlighted trench, the excavation constituting a nuisance, and the danger arising directly from the work which they required to be done.

Transferred from Superior Court.

Action by Mary C. Thomas against James J. Harrington and another. At the close of the plaintiff's evidence the court ordered a verdict for the defendants, and the plaintiff excepted. Transferred from superior court. Exceptions sustained.

The plaintiff' evidence tended to show that the defendants contracted in writing with one McFadden to construct two dwelling houses

for the defendants in the village of Littleton, and as a part of the contract the former was "to put in the water pipe from the main road, six feet under ground." McFadden proceeded to execute the contract in accordance with its terms, and, while working thereunder, by the instrumentality of servants employed by him, with whom the defendants had nothing to do, and over whom they had no control, he dug a ditch in the street, from the water pipe therein to the sidewalk in front of the defendants' premises, 12 feet long, 51⁄2 feet deep, and 2 feet wide, for the purpose of laying a water pipe from the water main to the defendants' dwellings. McFadden, or his servants employed on the work, negligently left the trench unguarded and unlighted in the evening, although the evening was a dark one, and the electric lights for a part of the time were unlighted; and the plaintiff, while riding along the street, in the exercise of ordinary care, was thrown from her carriage and injured, in consequence of her horse falling into the ditch.

Everett C. Howe and Scott Sloane, for plaintiff. Batchellor & Mitchell and Smith & Smith, for defendants.

WALKER, J. It is not necessary to decide whether McFadden was an independent contractor in the work of putting in the water pipe, or merely an agent of the defendants; for in either case the evidence was legally competent to support a verdict in favor of the plaintiff. From the written contract it appears that the defendants employed McFadden to build two houses upon their premises. One of the specifications of the contract was "to put in the water pipe from the main road, six feet under ground." The evident purpose of this provision was to secure a connection with the water main, which would require the digging of a ditch into the public highway. That the parties had in mind the excavation of a ditch in the highway is not open to doubt upon a reasonable construction of the contract. It was a necessary and anticipated part of the work which the defendants employed McFadden to do. Such an excavation in a street is a nuisance, because it renders public travel dangerous, and makes extra precautions necessary for the protection of travelers. Hence it became the duty of the defendants, who authorized and caused the ditch to be dug, to protect the public from the danger occasioned thereby. They knew the work could not be done, in its reasonable and proper prosecution, without increasing the danger of public travel in the highway at that point. The danger arose directly from the work which they required to be done, and not from the negligent manner of its performance. In such a case one cannot avoid responsibility for the consequences naturally to be apprehended in the course of the performance of the work by employing another to do the

Upon

work as an independent contractor. the modern authorities, the question of liability, under such circumstances, does not depend upon an inquiry whether the parties sustain the relation of master and servant, or whether the contract between them makes the employé an independent contractor. The employer cannot absolve himself from the du ty which, under the law, he owes to another with reference to the performance of work which is dangerous in itself-as the digging of a ditch in the highway.

In Carter v. Berlin Mills, 58 N. H. 52, 42 Am. Rep. 572, the defendant was held not to be responsible for flowing the plaintiff's land, not merely because it had employed an independent contractor to float the logs down the river, but also because the injury was not the direct result of the work it employed the Thurstons to do. The court say (page 59, 58 N. H., 42 Am. Rep. 572): "The plaintiff's injury was not the natural result of the work contracted to be done. A reasonable use of the dams for proper purposes, and a reasonable use of the stream for the transportation of logs, were lawful, and the authority conferred by the defendants was to execute the contract by a proper and reasonable use of all its means and appliances." If it had appeared in that case that the work which the contractors agreed to do would necessarily produce the damage the plaintiff suffered, it is believed the opposite result would have been reached, as was the case in McDonell v. Boom Co., 71 Mich. 61, 38 N. W. 681. It was held in that case that where a boom company, having full control and management of a stream and the dams thereon, contracts for driving logs tuerein, ⚫ the reasonable performance of which contract obliges the contractor to so run and manage the logs and water as to damage riparian owners, such damage is legally attributable to the company, and may be recovered of it. This doctrine is recognized in Knowlton v. Hoit, 67 N. H. 155, 30 Atl. 346, and in Manchester v. Warren, 67 N. H. 482, 32 Atl. 763. See, also, Pittsfield, etc., Co. v. Shoe Co., 71 N. H. 522, 53 Atl. 807. In Bower v. Peate, 1 Q. B. Div. 321, 326, Lord Cockburn says: "There is an obvious difference between committing work to a contractor to be executed, from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless preventive measures are adopted. While it may be just to hold the party authorizing work in the former case exempt from liability for injury resulting from negligence which he had no reason to anticipate, there is, on the other hand, good ground for holding him liable for injury caused by an act certain to be attended with injurious consequences, if such consequences are not in fact prevented, no matter through whose default the omission to take the necessary measures for such prevention may arise." To the same effect

are Hardaker v. Council [1896] 1 Q. B. 335; Penny v. Council [1898] 2 Q. B. 212, 217; Holliday v. Telephone Co. [1899] 2 Q. B. 392; Gray v. Pullen, 5 B. & S. 970. The American courts generally take the same view of the law. In Robbins v. Chicago, 4 Wall. 657, 678, 18 L. Ed. 427, it is said that an employer is liable "where the work to be done necessarily constituted an obstruction or defect in the street or highway, which rendered it dangerous as a way for travel and transportation unless properly guarded or shut out from public use; that in such cases the principal for whom the work was done could not defeat the just claim of the injured

*

party by proving that the work which constituted the obstruction or defect was done by an independent contractor. * Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party." See, also, Water Co. v. Ware, 16 Wall. 566, 576, 21 L. Ed. 485; Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 234; Woodman v. Railroad, 149 Mass. 335, 21 N. E. 482, 4 L. R. A. 213, 14 Am. St. Rep. 427; Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 522, 28 Atl. 32; Deming v. Railway, 169 N. Y. 1, 61 N. E. 983, 88 Am. St. Rep. 521; Wilson v. White, 71 Ga. 506, 51 Am. Rep. 269; Circleville v. Neuding, 41 Ohio St. 465; Hawver v. Whalen, 49 Ohio St. 69, 29 N. E. 1049, 14 L. R. A. 828; Covington, etc., Co. v. Steinbrock, 61 Ohio St. 215, 224, 55 N. E. 618, 76 Am. St. Rep. 375; Matheny v. Wolffs, 2 Duv. 137; Carlson v. Stocking, 91 Wis. 432, 65 N. W. 58; Independence v. Slack, 134 Mo. 66, 34 S. W. 1094; Spence v. Schultz, 103 Cal. 208, 37 Pac. 220. In Wright v. Holbrook, 52 N. H. 120, 13 Am. Rep. 12, the defendant, as one of a committee representing the town of Keene, employed Nourse as an independent contractor to clear a piece of woodland belonging to the town; and it was held that he was not liable for damages caused by a fire which was set by Nourse to burn the brush on the lot, and which escaped, through the latter's negligence, onto the plaintiff's adjoining woodlot. The questions whether the work Nourse was employed to do was essentially dangerous to the property of others, and whether, if it was, the defendant could escape liability therefor because of the contract, were not discussed by the court or raised by counsel. If it is assumed that the work done in a reasonable way, or in the way contemplated by the parties, would not constitute a menace to the property of others, and require extra precautions for protection, the decision is in accord with

the general rule that the employer is not liable for the negligence of an independent contractor, and it is probable the court adopted that view of the nature of the contract. In the case of Black v. Finance Co. [1894] A. C. 48, under a similar state of facts, the defendant was held liable.

As the case does not disclose that permission was obtained from the selectmen to dig up the street by either the defendants or McFadden (Pub. St. c. 82, §§ 1, 2), the effect of such permission upon the defendants' liability, if any, has not been considered. The result is that the order of the court directing a verdict for the defendants was error. Exceptions sustained.

CHASE, J., was absent. The others concurred.

(72 N. H. 1)

PACKARD v. METROPOLITAN INS. CO. (Supreme Court of New Hampshire. Merrimack. Jan. 6, 1903.)

LIFE INSURANCE "SOUND HEALTH"-SUFFICIENCY OF EVIDENCE.

1. The expression "sound health," used in a provision in a life insurance policy, means, generally, the absence of any vice in the constitution, and of any disease of a serious nature that has a direct tendency to shorten life, in contradistinction to a temporary ailment or indisposition.

2. An insurance policy sued on waived the fact that the insured's father had died of consumption, but provided that the company assumed no liability prior to its date, nor unless the insured was in sound health then, and omitted the usual warranty in the application. When the insured, a boy 10 years old, was examined, he was found in good health, but before the policy was delivered he was taken with an illness from which he died inside of 6 months. At the delivery of the policy the insured's mother did not know the nature of his disease, and he appeared to suffer only from a temporary ailment, the disease being undiscoverable except to a physician, and one not infrequent with children, and often outgrown. attending physician's testimony was that the insured died of heart disease and consumption. which latter might have been inherited, and been the cause of the heart disease. Held, that the jury was warranted in finding that the insured was not in sound health at the date of the policy.

The

Transferred from Superior Court; Peaslee, Judge.

Assumpsit by one Packard against the Metropolitan Insurance Company. Verdict for defendant, and case transferred from the superior court on plaintiff's exceptions. Exceptions overruled.

The insured was the 10 year old son of the plaintiff. The application for the insurance was made by the plaintiff on September 5th, and the boy was examined by the defendant's physician the next day, and was reported by him to be in good health. Thereafter, and before the policy was delivered, the boy fell sick of a disease of the heart,

1. See Insurance, vol. 28, Cent. Dig. § 689.

from which he died on March 8, 1901. September 16th the plaintiff took him to a physician, who found that he had a disease of the heart, but did not inform the plaintiff of his discovery; and she had no knowledge that the boy had such disease. The disease was undiscoverable except upon examination by a physician, is not infrequent with children, and is frequently outgrown. At the date of the policy and the time of its delivery, there was nothing in the actions and appearance of the boy to indicate to ordinary observation that he had anything more than a temporary ailment. The boy's father died of consumption, and that fact was waived by the defendant in the policy. The attending physician testified that the boy died of heart disease and consumption, and that the consumption might have been an inheritance from the father, and the cause of the heart disease. The policy contained the following: "Provided, however, that no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive, and in sound health." The application contained a like provision. The policy also contained the following: "This policy is issued upon an application which omits the warranty usually contained in applications, and contains the entire agreement between the company and the insured and the holder and the owner hereof."

Martin & Howe, for plaintiff. Brown, Jones & Warren, for defendant.

CHASE, J. The parties introduced into their contract a provision "that no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive, and in sound health." That they had authority to limit the contract in this way cannot be doubted. Dwight v. Insurance Co., 103 N. Y. 341, 8 N. E. 654, 57 Am. Rep. 729. The question to be considered arises upon this provision, not upon a representation or warranty made by the plaintiff in the application for insurance. There was no warranty in the application, and it does not appear that any representation was made therein concerning the health of the assured. The entire contract is contained in the policy. The question, then, is, what did the parties intend by this provision? It must be presumed that they intended what the words used by them ordinarily signify in common speech. This leaves little room for interpretation, since there is but slight ambiguity in the terms of the provision. No obligation was assumed by the defendant unless the insured was alive, and in sound health, on the day of the date of the policy. The defendant's promise was not absolute, but conditional. The existence of life and sound health in the insured was a condition precedent to the promise of insurance. But what was meant by the words "sound health"? Evidently, not perfect health. "We are all

born with the seeds of mortality in us." No definition can be given to these words that will apply in all cases. A mere temporary indisposition or ailment would not ordinarily be regarded as rendering the health unsound, within the meaning of these words when used in an insurance contract. Speaking generally, they mean the absence of any vice in the constitution, and of any disease of a serious nature that have a direct tendency to shorten life; the absence of a condition of health that is commonly regarded as disease, in contradistinction to a temporary ailment or indisposition. Cushman v. Insurance Co., 70 N. Y. 72, 77; Brown v. Insurance Co., 65 Mich. 306, 32 N. W. 610, 8 Am. St. Rep. 894; Metropolitan Ins. Co. v. Howle, 62 Ohio St. 204, 56 N. E. 908. Whether, in a given case, a person is of sound health, must, of course, depend upon the circumstances of the case. "It must obviously be very difficult to determine questions like these by any general rule. And it is the usual practice to leave these questions to the jury." 2 Par. Cont. (8th Ed.) *467; Billings v. Insurance Co., 70 Vt. 477, 41 Atl. 516; Dorey v. Insurance Co., 172 Mass. 234, 51 N. E. 974; Cushman v. Insurance Co., 70 N. Y. 72, 77; Grattan v. Insurance Co., 92 N. Y. 274, 44 Am. Rep. 372. The question of sound health resembles in this respect the question whether a ship has been "in collision" (London Assurance v. Companhia, 167 U. S. 149, 17 Sup. Ct. 785, 42 L. Ed. 113), or whether a person was of "temperate habits" (Insurance Co. v. Foley, 105 U. S. 350, 26 L. Ed. 1055), or whether premises were "vacant by the removal of the owner or occupant" (Stone v. Insurance Co., 69 N. H. 438, 45 Atl. 235).

It must be inferred from the fact that a general verdict was rendered in favor of the defendant that it was found as a fact that the insured was not in sound health at the date of the policy. The facts specifically reported warrant this finding. After the boy was examined by the defendant's physician, and before the date of the policy, he "fell sick of a disease of the heart," from which he died within six months. Although the disease was one that was not infrequent among children, and is frequently outgrown, it could not reasonably be regarded as a temporary ailment, or as not of a serious nature. A person having such a disease would not be regarded as in sound health. The fact that the plaintiff was not aware of the nature of the disease, and that its nature was undiscoverable except by a physician, did not prevent it from rendering the boy's health unsound. Undoubtedly, the testimony of the mother and others that the boy appeared to be in good health would be competent evidence on the issue of soundness, but it would not be conclusive. The testimony of physicians concerning the condition of his health, discovered by their examinations of him. would also be competent. In Dorey v. In

surance Co., supra, several persons testified that the insured appeared to be in good health, and was working as usual at the date of the policy; but the testimony of physicians tended to prove that he had a disease of a serious nature, which was not apparent to common observation, and the question of the soundness of his health was submitted to the jury. See, also, Billings v. Insurance Co.,

supra.

Presumably, the attending physician's tes timony that the boy died of heart disease and consumption, and that the consumption might have been inherited from the father, and caused the heart disease, was considered and weighed by the court in connection with all other testimony in the case, and in view of the defendant's waiver of the fact that the boy's father died of consumption. If the boy was sick with consumption at the date of the policy, no one would say that he was in sound health. As the record is understood, the waiver related to the liability of the boy's having consumption in the future as an inheritance from his father, and not to the existence of the disease at the date of the policy. The defendant waived the possible defect in the boy's constitution arising from the existence of the disease in his father, but not the present, active existence of the disease in the boy himself. It is highly improbable that they would insure the life of a person actually sick with consumption, but they might take the risk of insuring a son whose father died of consumption, and in whom the disease had not appeared.

Exceptions overruled. All concurred.

(72 N. H. 32)

MURRAY v. BOSTON & M. R. R. (Supreme Court of New Hampshire. Hillsborough. Feb. 3, 1903.)

INJURY TO BRAKEMAN-RES GESTA-DECLARATION-ASSUMPTION OF RISK-CONTRIBUTORY NEGLIGENCE.

1. Declaration of one within two minutes after he was run over by a car, and while he was lying between planks, with his legs nearly cut off, that it hapened from his falling over the planks, is part of the res gestæ.

2. Whether a brakeman who was run over by cars, he having stumbled over a "jigger stand," consisting of two planks, for a hand car, close to the track, and within 10 feet of a switch which he was about to operate, knew or ought to have known of the stand, negligently placed there, so that he can be held to have assumed the risk, is a question for the jury, though he had been over the road 10 or 12 times within two months of the accident; men who had worked with him during that time testifying that they had not noticed it before, and it appearing that such stands are seldom placed near switches, and usually lead into car houses, which afford notice of their presence, while in this case there was no such house.

3. Whether a brakeman, who, stumbling over a jigger stand within 10 feet of a switch, was run over by the cars, exercised reasonable care in the performance of his work, is a question

1. See Evidence, vol. 20, Cent. Dig. § 372.

54 A.-19

for the jury, he, when last seen before the accident, having been getting down with his lantern over the side of the car nearly opposite. the switch, for the purpose, evidently, of setting the switch, as was his duty, he having had extensive experience as a brakeman, a very brief time having elapsed from the time he alighted till he cried out, and it being competent to infer that he was proceeding to reach the switch in the way an experienced brakeman would adopt under the circumstances, and that this would be a reasonably prudent way. Exceptions from Superior Court; Young, Judge.

Action by Michael Murray, administrator, against the Boston & Maine Railroad. Verdict for plaintiff. Defendant excepts. Exception overruled.

Case, for negligently causing the death of Baker, the plaintiff's intestate. Trial by jury, and verdict for the plaintiff. At the close of the plaintiff's evidence, the defendant's motion for a nonsuit was denied, subject to exception. Transferred from the May term, 1902, of the superior court by Young, J. The plaintiff's evidence tended to prove the following facts: At the time of the accident, and for some time prior thereto, Baker was in the employ of the defendant as a freight brakeman. The crew to which he belonged had no regular run, but worked on extras on the lines of the defendant's road running out of Nashua. During the two months before the accident, they had been over the road from Nashua to Keene about a dozen times. The accident occurred in the yard at Greenfield, at about 2 o'clock in the morning, while the crew were engaged in making up their train. Baker was the "middle 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 track. While the cars were in motion, some one with a lantern was seen by one of the men on the car next to the rear one, and when nearly opposite the switch the lantern disappeared, going down by the side of the car, on the side of the track opposite the switch. On this side of the track there was a "jigger stand," about six feet from the switch, consisting of two planks placed at right angles with the track, and within two or three inches of it, and extending back some fifteen feet. Such appliances are used by the section men in running their cars from the track. There was no car house at this point, and the stand had not been used for two or three years. Just after the lantern disappeared, and as soon as the car passed the switch and stopped, Baker was heard to cry out and groan; and one of the witnesses at once ran to him, and found him lying between the planks, his back to the track, with both legs nearly severed from his body. Another witnesses, who reached the place in less than two minutes after he heard the outcry, asked Baker what the matter was, and he replied that he had lost his legs. The witness asked, "How did you do that?" and Baker replied, "I fell over these old