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Reports of All Decisions Rendered in
William Otis Badger, Jr., Editor
R. M. Chandor, Manager
Published by C. C. Hine'Sons Co.
100 William Street
The Workmen's Compensation Law Journal
Reports of all Decisions Rendered in Compensation Cases in the
UNITED STATES CIRCUIT COURT OF APPEALS.
1. MASTER AND SERVANT--INJURIES TO SERVANT-EM
PLOYERS' LIABILITY ACT-SCOPE-"MAIL.”
Under the New Hampshire Employers' Liability Act (Laws N. H. 1911, c. 163), which declares that it is applicable to workmen engaged in manual or mechanical labor in any shop, mill, factory, or other place in connection with or in proximity to any hoisting apparatus, or any machinery propelled or operated by steam, or other mechanical power in which shop, mill, factory, or other place five or more persons are engaged in manual or mechanical labor, the word "mill,” under the decisions of the New Hampshire courts, incluces not only the buildings wherein the work is done, but everything appui tenant thereto, and hence a carpenter, who under the terms of his employment might be engaged in manual labor, of in connection with or in proximity to machinery in the mill, and who has frequently been so engaged, is within the act, although his injury resulted from a fall from a platform adjoining and appurtenant to, but outside, one of the mill buildings.
(For other cases, see Master and Servant, Dec. Dig. § 375.)
(For other definitions, see Words and Phrases,. First and Second Series, Mill.) 2. MASTER AND SERVANT-INJURIES TO SERVANT-EVI
In an action under the New Hampshire Employers' Liability Act, by a servant who fell feom a platform while he was moving a cupboard, evidence held to warrant a finding that the fellow servant assisting him was negligent, and that plaintiff, who fell, was not guilty-nf contributory negligence.
(For other cases, see Master and Servant, Dec. Dig. § 405.) * Decision rendered, January 24, 1918. 248 Fed. Rep 242.
Before Dodge, Bingham, and Johnson, Circuit Judges.
In Error to the District Court of the United States for the District of New Hampshire; Edgar Aldrich, Judge.
Action by Moses Pellerin against the International Cotton Mills, begun in the state court and removed to the federal court. There was a verdict for plaintiff, and, on defendant's motion, verdict was set aside, and judgment for defendant ordered; but defendant's contention that the action was not maintainable under the New Hampshire Employers' Liability Act was not sustained. Plaintiff brings error, and defendant also brings error. Judgment reversed, and case remanded, with directions.
Louis E. Wyman, of Manchester, N. H. (Taggart, Burroughs, Wyman & McLane, of Manchester, N. H., on the brief), for plaintiff.
Edward C. Stone, of Boston, Mass. (Sawyer, Harding, Stone & Morrison, of Boston, Mass., on the brief), for defendant.
DODGE, Circuit Judge. These two writs of error are brought by the plaintiff and defendant, respectively, in a suit to recover damages claimed by the plaintiff under the New Hampshire Employers' Liability Act (Laws 1911, c. 163).
The suit, brought originally in a New Hampshire state court, was removed into the federal District Court, on the defendant's petition alleging diverse citizenship of the parties, and was there tried at the April term, 1917. At the trial, notwithstanding a motion by the defendant at the close of the evidence for a directed verdict in its favor, the case was submitted to the jury, and a verdict rendered on May. 4, 1917, in the plaintiff's favor and awarding him damages. Thereafter, on May 5, 1917, the defendant moved that the verdict be set aside and judgment for the defendant ordered. On June 21, 1917, the court granted this motion. According to a rescript that day filed, the verdict was set aside upon the ground that there was no substantial evidence entitling the plaintiff to go to the jury, and for the reason that he could not be relieved from the defense of contributory negligence. A further contention, which the defendant had made, not only in its motion to set aside the verdict, but also in its motion at the trial to direct a verdict in its favor, that the case was not within the above statute, was overruled.
The plaintiff excepted to the order setting aside the verdict, and has assigned as error the allowance of the defendant's motion and the setting aside of the verdict upon the grounds above stated. The defendant excepted to the ruling that the action was within the statute, and has assigned as error the denial of its motion to set the verdict aside on the ground that the evidence did not, as matter of law, bring the case within said statute.
 Having set the verdict aside as above, the court, on August 14, 1917, entered judgment for the defendant. This, in view of the decisions below referred to, we are obliged to regard as clearly erroneous. A new trial was necessary before any judgment could be entered. While the court might have entered judgment upon a verdict directed by it at the trial, it could not enter judgment in the absence of any verdict by the jury. The same right to trial by jury arose upon the setting aside of the verdict for the plaintiff as had belonged to him before the trial. Slocum v. New York, etc., Co., 228 U. S. 364, 379, 380, 33 Sup. Ct. 523, 57 L. Ed. 897, Ann. Cas. 1914D, 1029; Young v. Central R. R., etc., 232 U. S. 602, 34 Sup. Ct. 451, 58 L. Ed. 750. See, also, in this court, Pacific Mills v. Farish, 213 Fed. 448, 130 C. Ć. A. 95.
The parties, however, have stipulated in this court that final judgment for the defendant is to be entered if the District Court committed no error in setting aside the verdict, or if its ruling that the plaintiff's case was within the statute referred to was erroneous. They have further stipulated that, if the order setting aside the verdict was erroneous, but the ruling that the plaintiff's case was within said statute was not erroneous, final judgment for the plaintiff in the sum of $5,000 is to be entered, upon which judgment execution is to issue only for said amount and taxable costs. We proceed, therefore, to consider the errors respectively assigned.
 1. The plaintiff, a carpenter by trade, had been employed in the defendant's mill for about five years before receiving the injury for which he claims damages, on March 26, 1915. The work carried on in the mill involved the use of hoisting apparatus or machinery propelled or operated by steam or other mechanical power, and in the mill five or more persons were engaged in manual or mechanical labor. So far there is no dispute.
According to his uncontradicted evidence, the plaintiff, during the period of his employment, had worked in the mill and on machinery therein. He had worked on several different machines. It cannot be said, however, that he had done no work, except in connection with machines. He had done the ordinary repair work which a carpenter would do, either in a carpenter shop located in one of the mill buildings, or wherever he was sent to do repair work about the mill, whether among machines or elsewhere.
He did not, however, receive the injury for which he sues while working on or in connection with machines of any kind. Nor was it received in any building containing machinery. He was injured by falling from a glatform adjoining and appurtenant to, but outside of, one of the phill buildings. Under directions to get a certain fellow employee to help him, and to carry, with such help, a wooden cupboard then on said platform into a room in the building and there put it up, he and the fellow employee were trying to lift the cupboard and turn it on the platform, so as to get it through a door and into the room where it was to be put up. His claim is that the fellow employee negligently let the cupboard strike the wall of the building, and that he was thereby caused to lose his footing on the platform and fall to the ground, about 3 feet 7 inches below the level of the platform.