was

lost control of car No. 5, causing the collision between cars Nos. 16 and 12, because the suap switch on the rear of the car closed, when it should have been opened, will not support those counts in the declaration which aver, in effect, that the car was improperly equipped with a defective air brake. But if you find that the switch was closed, without regard as to how or when it was closed, if by the exercise of due care and caution the servants of the company might or should have discovered that it was closed, and that by reason thereof the air brake failed to act effectually, as it was designed to act, and that the resultant failure so to act was due to the carelessness, incompetency, or negligence of the servants of the defendant company in not discovering that the switch was closed, and that, as a result of the failure of the air brake to work, the motorman lost control of car No. 5, and by reason thereof car No. 16 was forced against car No. 12, causing the plaintiff to be thrown therefrom and injured, then the failure to make the discovery and open the switch would constitute negligence. If you find that the servants of the defendant company negligently and carelessly permitted car No. 5 to be overcrowded, and that by reason thereof they lost control of the car; and that the plaintiff was injured by being thrown from car No. 12 upon the ground because of the failure of the servants of the company to control car No. 5 as a consequence of the overcrowding of the car, then the defendant company was negligent. If the injuries alleged to have been sustained by the plaintiff were occasioned by the negligence of the defendant company, or its motorman, servants, or any of them, and without the fault or negligence of the plaintiff contributing thereto, then he would be entitled to recover. But, if the negligence of the plaintiff contributed to and proximately entered into the accident which resulted in the injuries complained of, he cannot re

cover.

If you

Where there is conflict in the testimony, you should reconcile it if you can. cannot, you should give credit to and be governed by the testimony, which, in your judgment, is most worthy of belief, taking into consideration the intelligence, apparent truthfulness, bias, and impartiality of the witness. The weight and value of the evidence so determined by you is to be your guide in reaching your verdict. And governed by this instruction you should decide this case in whose favor there is a preponderance of the evidence. If you should find for the plaintiff, your verdict should be for such a sum as will reasonably compensate him for the injuries which he has sustained, including therein his pain and suffering, his impaired power to perform labor in the past, since the accident, and such as may come to him in the future, his loss of time and labor as a result of his injuries; and if, under

1. Where, on a criminal prosecution, the accused is under 14 years of age, it is incumbent on the state to show that the accused commited the crime with a guilty knowledge that he was doing wrong.

2. Such guilty knowledge may be shown by the apparent intelligence of the minor and from his acts and conduct in connection with the crime, together with any other circumstances that will throw light on the subject.

Ezekiel R. George was convicted of arson Argued before LORE, C. J., and GRUBB and PENNEWILL, JJ.

Herbert H. Ward, Atty. Gen., for the State.

Ezekiel R.

LORE, C. J. (charging jury). George is charged with feloniously, willfully, and maliciously setting fire to and burning the barn of Samuel Logan, in Mill Creek hundred, this county, on or about the 7th day of April, 1902. It is admitted that the prisoner is under 14 years of age, and, where a prisoner is thus a minor, it is incumbent upon the state to show, first, that the accused committed the act charged, and, secondly, that he did it with a guilty knowledge that he was doing wrong. That guilty knowledge may be shown by the apparent intelligence of the accused minor, and from his acts and conduct in connection with the crime, and any other circumstances that will throw light upon that subject. The principle of law governing cases of this kind, where the person charged is an infant, is very clearly stated in 3 Greenleaf on Evidence, § 4, as follows: "With respect to infants, the period of infancy is divided by the law into three stages. The first is the period from the birth until seven years of age, during which an infant is conclusively presumed incapable of committing any crime whatever. The second is the period from seven until fourteen. During this period the presumption continues, but is no longer conclusive, and grows gradually weaker as the age advances towards fourteen. At any stage of this period the presumption of incapacity may be removed by evidence showing intelligence and malice; for malitia supplet ætatem; but the evidence of that malice which is to supply age ought to be strong and clear beyond all reasonable doubt. * The third commences at fourteen; the pre

sumption of incapacity arising from youth being then entirely gone, and all persons of that age and upwards being presumed, in point of understanding, capable of committing any crime, until the contrary be proved." You have the law as thus stated by Greenleaf, and if, under the circumstances of this case, you believe that the prisoner committed the offense, and that at the time he had sufficient intelligence to know that he was doing a wrong act, and did it willfully and maliciously, then your verdict should be, "Guilty in manner and form as he stands indicted." If you should have a reasonable doubt upon any of the material elements of the crime charged, your verdict should be, "Not guilty"; the doubt should enure to his acquittal. The court charges you thus with respect to the possession of criminal capacity because we find in the case of State v. Jackson, 3 Pennewill, 15, 50 Atl. 270, that the case is inaccurately stated through inadvertence, and we take this method of correction.

PLOYMENT-YOUTH-INEXPERIENCE-RULES -MEASURE OF DAMAGES.

1. A master owes its servant the duty of providing a reasonably safe place to work in, and reasonably safe and proper tools.

2. It is a master's duty to a servant to keep its premises and tools in a reasonably safe condition.

3. Where a servant is young or inexperienced, it is the duty of the master to inform him of the dangers incident to his employment.

4. A servant must obey and follow the instructions of his master as to the work he is employed in.

5. It is the duty of both master and servant to exercise reasonable care and diligence to avoid accident, varying according to the dangerous nature of the employment.

6. Plaintiff in an action against a master for injuries has the burden of proving defendant's negligence.

7. Plaintiff in an action against a master for personal injuries cannot recover if guilty of contributory negligence.

8. In an action for personal injuries, plaintiff can recover for loss of time and wages, past and future pain and suffering, and for resulting impairment of ability to earn a living.

Action by Francis Karczewski against the Wilmington City Railway Company. Verdict for plaintiff.

Action on the case for damages for personal injuries alleged to have been occasioned by receiving a shock of electricity whilst employ

3. See Master and Servant, vol. 34, Cent. Dig.

§ 314.

ed as a servant of the defendant company in cleaning a car of the said defendant at its car barn in the city of Wilmington. The narr. consisted of eight counts. The first count contained the following allegation with respect to the injuries to the plaintiff, viz.: "Yet the said defendant, not regarding its said duty as aforesaid, negligently and carelessly omitted to provide a reasonably safe place in which to work, for the said Francis Karczewski, in that it carelessly and negligently passed a dangerous current of electricity through the wires in and about a certain car in which the said plaintiff was then and there working for said defendant, so that he the said plaintiff, who was then and there, to wit, on the 2d day of July, A. D. 1900, at New Castle county aforesaid, in the exercise of due care and caution on his part, engaged in the scrubbing or cleaning for the said defendant of the said certain car, stored in or near said car barn, was, by reason of the defendant's omission to provide a reasonably safe place in which to work as aforesaid, greatly shocked, burned, and injured by an electric current, by reason of touching or coming in contact with an exposed wire in said car, charged by the said defendant with a dangerous current of electricity, and was thereby violently thrown, hurled, or caused to fall to the floor of the said car, or on the seat thereof; that by reason of said shock from said current of electricity the plaintiff was greatly pained, burned, wounded, and injured, and also, by means of the premises, the said plaintiff became and was sick, sore, burned, lame, and disordered, and so remained and continued for a long space of time, to wit, hitherto, during all of which said time the said plaintiff suffered and underwent great pain, and was hindered and prevented from transacting and attending to his necessary and lawful affairs and business, by him during all that time to be performed and transacted, and lost and was deprived of divers great gains, profits, and advantages which he might and otherwise would have derived from the same, and also the said plaintiff was forced and obliged and did then and there pay, lay out, and expend divers large sums of money, to wit, one thousand dollars, in and about the endeavoring to be cured of the burns, bruises, and injuries so received as aforesaid, whereby the said plaintiff saith that he is injured and hath sustained damages in the sum of twenty thousand dollars. and therefore he brings his suit." The remaining counts, while varying in the phraseology as to the negligence of the defendant, made substantially the same allegations as contained in the first count with respect to the injuries sustained by the plaintiff. The defendant filed a general demurrer to the above declaration as insufficient, and contended that the injuries were not stated in the narr. with sufficient particularity. After hearing argument, the court overruled the demurrer; and, upon

application of defendant's counsel, judgment of respondeat ouster was entered.

Argued before LORE, C. J., and SPRUANCE and GRUBB, JJ.

Levin I. Handy, for plaintiff. Walter H. Hayes, for defendant.

LORE, C. J. (charging jury). This is an action on the case to recover damages for personal injuries. Francis Karczewski, the plaintiff, claims that about June 27 or 28, 1900, he was in the employ of the defendant company, at their carshops in this city, as a scrubber and cleaner of cars; that on that day he was set to work scrubbing and cleaning a summer car while the trolley pole was in contact with the feed wire; that, while he was cleaning the top of the car with a wet sponge, his hand came in contact with the end of a live wire hanging down from the top of the car; that thereby he received an electric shock, was knocked down, became insensible, and his hand injured and permanently disabled, and was otherwise hurt; that he was ignorant of the danger, and had received no warning or proper instructions at the hands of the defendant company. The defendant company claims, on the other hand, that he was specially warned and instructed not to work upon a car while the trolley was in contact with the feed wire; that, if he received any shock and injury, it resulted from a disregard of such instructions, and was the result of his own negligence; further, that the alleged injury to the hand was not in fact caused by an electric shock, but in using a chisel in work at his own home. It is for you to determine which of these contentions is true. There are no new questions of law raised in this case. It is mainly a question of fact for you to determine from the evidence, and we shall charge only upon the questions of law raised by the prayers of the parties.

It is conceded on both sides that at the time of the accident the relation of master and servant existed between the defendant company and the plaintiff. Where such relation exists, there are certain legal duties imposed upon each party. It is the duty of the master to provide for the servant a reasonably safe place in which to work, and also reasonably safe and proper tools with which to perform such work, and to keep both place and tools in such reasonably safe condition. Where the employment is dangerous, it is the master's duty, either by general rules or special instructions, to warn and inform his servant of the danger, if by reason of youth or inexperience the servant is unacquainted therewith. The measure of such instructions should be gauged in all cases by such youth or inexperience. It is the duty of the servant to obey and follow the instructions of the master as to his work. The servant assumes the ordinary and usual risks of his employment, whatever they may be. He also assumes such risks, whether patent

or latent, as are within his knowledge, or with which he may become acquainted with the ordinary use of his faculties. It is the duty of both master and servant to exercise reasonable care and diligence to avoid accident. Such care and diligence must be greater or less according to the danger of the employment in each case. This action is based upon the negligence of the defendant company. The burden is upon the plaintiff to show such negligence by a preponderance of proof. The injury must be the result of the negligence of the defendant only. If the plaintiff contributed proximately in any way to the accident, he cannot recover, as the law will not attempt to measure the extent of such contribution. Governed by these simple rules of law relating to master and servant, you are to reach your verdict in this

1. While the plaintiff was attempting to drive over the defendant's railroad at a highway grade crossing, he was struck by a freight train of the defendant and sustained serious bodily injury. The collision occurred upon the last, as the plaintiff was driving, of the railroad company's three tracks at this crossing. The southerly rail of this last track was about 25 feet northerly of the northerly rail of the first track.

Giving the plaintiff the benefit of the most favorable construction possible to the evidence, it may be assumed that, as he was approaching the crossing, his view of the track, in the direction from which the train was coming, was entirely obstructed by buildings, and, perhaps by a board fence which extended along the southerly side of the railroad, until he reached a point inside of this board fence. But the end of this fence, at the street, was 30 feet southerly of the southerly rail of the track upon which the collision occurred. From this point he had an unobstructed view of the railroad in the direction from which the train was coming, for a distance of at least 300 feet, and from the first of the three tracks his view was unobstructed in the same direction for nearly 400 feet.

The plaintiff was driving, as he says, at a fast walk, and the speed of the freight train. as estimated by plaintiff's witnesses, was from 15 to 20 miles an hour. Consequently, when the plaintiff was upon the first track, with an unobstructed view of between three and four hundred feet, the train was in plain view, and only from 125 to 150 feet distant from the crossing, since the speed of the train was only

five or six times that of the plaintiff, and they came into collision after the plaintiff had traveled a distance of 25 feet.

Held that, as there was no controversy as to any of these facts, it was proper for the presiding justice to refuse to submit the case to the jury and to order a nonsuit. That from these uncontroverted facts one of these two conclusions is irresistible: Either the plaintiff failed to take such precautions as to looking and listening, before attempting to cross the third track, as have been laid down by all authorities as indispensable to his right of recovery; or else he did look and saw the approaching train, and took his chance of safely crossing in front of it. That in either event his negligence contributed to the accident, and, in accordance with the well-settled law of this state, will prevent his recovery.

2. Although the question of negligence, either of plaintiff or of defendant, is one of fact for the jury, when the facts and circumstances are in controversy, and even when they are not, if fair-minded and unprejudiced persons may reasonably differ in the conclusions to be drawn from such facts, it is not a question of fact for the jury, but one of law for the court. when the facts are undisputed and but one inference can properly be drawn therefrom.

3. It is undoubtedly true that, where the determination of an issue of fact depends upon the credibility of witnesses, and where a jury would be justified in coming to a conclusion either way as to the credence to be given to the witnesses upon the one side or the other, it is the duty of the court to submit such an issue to the jury, however firmly convinced the presiding justice may be that there is no doubt as to where the truth lies. And, even where the surrounding circumstances merely make the story of a witness improbable, it is still the right of the litigant to have the issue thereby raised submitted to the tribunal created by the Constitution and the laws for the determination of such questions. But this is not so when the indisputed circumstances show that the story told by a witness upon a material issue cannot by any possibility be true, or when the testimony of a witness, necessarily relied upon, is inherently impossible..

4. Under the circumstances of this case, it does not help the plaintiff that he testified that he did look and did not see the approaching train; nor did this testimony, under the cir cumstances of the case, raise an issue of fact which should have been submitted to the jury. (Official.)

Exceptions from Superior Court, Cumberland county.

Action by Hyman Blumenthal against the Boston & Maine Railroad. Judgment of nonsuit, and plaintiff excepts. Overruled.

Case to recover damages sustained by the plaintiff when driving over the defendant's railroad at a highway grade crossing at Central street in Westbrook. The plaintiff claimed that the collision was caused by the negligence of the defendant's employés in the management of its train.

Argued before WISWELL, C. J., and STROUT, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Wm. Lyons, E. Foster, and O. H. Hersey, for plaintiff. J. W. Symonds, D. W. Snow, C. S. Cook, and C. L. Hutchinson, for defendant.

2. See Negligence, vol. 37, Cent. Dig. §§ 290, 293.

WISWELL, C. J. While the plaintiff was attempting to drive over the defendant's railroad at a highway grade crossing, he was struck by a freight train of the defendant and sustained serious bodily injury. Claiming that this collision was caused by the negligence of the defendant's employés in the management of the train, he brought this action to recover damages for the injuries sustained by him. At the trial, upon the conclusion of the plaintiff's testimony, the court ruled that a prima facie case had not been made out, and ordered a nonsuit. The case comes to the law court upon the plaintiff's exception to this ruling.

In accordance with familiar principles, which have been so frequently laid down by this court that reference to the authorities is unnecessary, it was incumbent upon the plaintiff, in order to entitle him to have the case submitted to the jury, to introduce testimony tending to affirmatively prove two propositions-the negligence of the defendant in some of the respects complained of, and that no failure upon his part to exercise due care contributed to the accident; and it was as essential for him to affirmatively prove the exercise of due care upon his part as to show negligence upon the part of the defendant.

So far as the first proposition is concerned, it is sufficient to say that we think that the evidence introduced by the plaintiff, uncontradicted, was sufficient to justify a jury in finding that there was negligence upon the part of the defendant's employés. It therefore becomes necessary to consider whether, in accordance with the well-established rules as to when the question of negligence is one of fact for the jury and when one of law for the court, the uncontradicted evidence in behalf of the plaintiff in support of his second proposition, that no want of due care upon his part contributed to the accident, was sufficient to entitle him to have this question submitted to a jury.

The plaintiff was a dealer in junk. Upon the morning of the day of the accident, April 30, 1900, he had driven with his own horse and express wagon from Portland to Westbrook. During the greater part of the forenoon he had gone about from house to house in the latter city, plying his trade. Shortly before noon he turned into Central street and drove northerly along that street towards the grade crossing of the defendant's railroad, his destination being a grain store beyond the railroad crossing, where he intended to buy grain for his horse.

At this highway crossing there were three tracks of the defendant's railroad. A board fence extended along the southerly side of the railroad from Brackett street to the easterly line of Central street, a distance of about 390 feet. The end of this fence at the Central street line was 30 feet southerly from the southerly rail of the third or last track at the crossing, and the northerly rail of the first track, in the middle of the street,