that the defendant was negligent; that in order to recover the plaintiff must prove that the accident occurred as alleged in his complaint, and that if it occurred in some other way, or if they found it was purely an accident not caused by negligence, he was not entitled to recover. The court defined negligence and charged the jury that if they found that the plaintiff was negligent himself, and that his own conduct contributed to the injury, provided they found that the company was also negligent, the plaintiff could not recover full damages, but that they should be diminished in proportion to the amount of negligence attributable to the plaintiff, as follows: "So that your verdict, when finally agreed upon, will be in proportion to the full compensation as the negligence attributable to defendant bears to the entire negligence attributable to both plaintiff and the defendant; that is to say, your Plaintiff's expert testified that if steel is brittle it will crack when struck with a hammer and chips are likely to fly, but if the steel was in good condition its surface would tend to burr over or spread out, but that it was impossible to tell the nature of the steel until it was struck. Experts also testified that when a tool gets in poor condition, whether it flattens out or cracks, it is equally obvious to any person looking at it. Plaintiff claimed that an unsafe, defective and dangerous tool was furnished and that he was negligently set at dangerous work without proper instructions or warning. The accident happened in Vermont. There was no proof of the common law of Vermont. Verdict was directed for defendant. In overruling exceptions thereto the court held that plaintiff's right to recover damages was to be determined by the laws of Vermont; that in the absence of evidence to the contrary, it would be presumed that the law there was the same as where the action was brought; that if there was an employers' liability act in that state the plaintiff could not avail himself there of and that the court could not take judicial notice of it; that plaintiff could not avail himself of the Massachusetts Employers' Liability Act as that act had no extraterritorial effect; that it was defendant's duty to supply plaintiff with reasonably safe tools, and that this duty was performed if it provided a sufficient supply of them within convenient reach and permitted the plaintiff and his coemployees to select therefrom as they saw fit during the progress of the work; that there was no duty resting on defendant to instruct an experienced man that a piece of steel might be broken off a battered cutter by a blow from a heavy hammer when, judging by experience, he was fully aware of that fact; that by the common law of Vermont as proved, an employee assumed not only the ordinary risks incident to his employment, but also such unusual and extraordinary risks as he knows and comprehends, and that the burden was on him to prove that he did not know and comprehend the risk; and that in view of the evidence it could not be said that plaintiff had sustained the burden of showing that he did not appreciate the danger of a piece of flying steel, and that he did not assume the risk thereof by voluntarily continuing to expose himself to danger after he comprehended it. Lemieux v. Boston & M. R. R., Mass. 106 N. E. 992 (1914). XXI. Crossed Stick to Drive Refuse from Tank. Plaintiff, a man thirty-four years of age and an experienced butcher, was first inquiry should be, 'Was the defendant guilty of negligence?' And your second inquiry should be, 'Was the plaintiff guilty of negligence?' And your third inquiry should be, 'In what degree did these casual negligences contribute to the accident?' And I instruct you as a matter of law you must determine what proportion plaintiff contributed to causes that caused the accident. If you find plaintiff's negligence contributed to the extent of one-third of the entire negligence, then the plaintiff's damages would be reduced by one-third. If to the extent of one-half, then his damages would be reduced by one-half; and if to the extent of two-thirds, then his damages would be reduced by two-thirds; and if his negligence was alone the cause of the accident, then, of course that would wipe out the damages, and your verdict would be in favor of the defendant." The issue was largely one of fact, and was fairly submitted to the jury, and the defendant's several requested instructions were covered in substance by the charge to the jury. It was not claimed by the plaintiff upon the trial that he could base injured under the following circumstances: Defendant was engaged in the live stock, meat and sausage business. In the corner of a building a tank was placed on a platform eight feet wide and twelve feet long. The platform was about as high as an ordinary man. There was a steel tank, about four feet in diameter, with an oval opening in both top and bottom, on the platform. This tank was from eight to ten inches from the edge of the platform. The platform was used to throw on bones, fat, tallow and refuse matter, which was then placed in the tank and boiled to separate the grease, tallow, etc., from the bones. After the grease and tallow were drained off, the bones would settle to the bottom of the tank and frequently clog the opening at the bottom. force the bones and refuse through the opening a piece of timber 4x4 inches square and probably eight or ten feet long was used. In order to better enable the men to turn the four by four, a strip about three inches wide, one inch thick, and sixteen inches long was nailed near the top or end of it. While plaintiff was using the 4x4 for the purpose for which it was intended, one end of the stick broke off and he was injured seriously. He Το claimed that defendant was negligent in failing to furnish him proper tools and in failing to place a guard rail about the platform. Plaintiff was nonsuited. In sustaining the judgment of nonsuit the court held that there was no evidence upon which a jury could properly base a finding of negligence on the part of the defendant; that assuming, without conceding, that defendant was negligent in failing to place a guard rail around the edge of the platform, yet there was nothing to show that the absence of such a rail was the proximate cause of the accident and injury; and that under the circumstances plaintiff must be deemed to have assumed the risk of falling from the platform by working thereon in the condition in which it was. The court said further: "Again, the 4x4 was a thing which could hardly be designated as either a tool or an implement. It was such an ordinary and simple instrument, if it can be so called, that any person of the most ordinary intelligence would have known and appreciated whatever danger, if any, there might have been in using it for the purpose it was used.” Busse v. Murray Meat & Live Stock Co., Utah 147 Pac. 626 (1915). C. P. B a recovery upon an injury resulting from the ordinary liability of tools to break and fly. Plaintiff was required to prove the defective condition of the adz, the knowledge or opportunity of knowledge of such defect on the part of the defendant, and the want of such knowledge on his own part. The proof tended to show, and the jury found, that the injury complained of resulted in whole or in part by reason of a defect or insufficiency in the adz, which was due to the defendant's negligence. Finding no error in the record in the submission of the cause to the jury, the judgment is affirmed. Municipal Corporations-Notice of Injuries-Admissibility of Evidence. Evidence of a broken arch of the plaintiff's foot is admissible under a claim presented to a municipal corporation for injuries to the back part of his legs, his left heel and tendon Achilles. Appeal by the defendant city from a judgment in favor of the plaintiffs for injuries sustained by a pedestrian from the fall of a boiler suspended above a street. Affirmed. CASE NOTE. Sufficiency of Notice to Municipality of Nature and Extent of Personal Injury. I. INJURY TO OVARIES AND INTES- II. INJURY TO EYESIGHT, 410. IV. BROKEN COLLAR BONE, 411. V. BROKEN LEG AND OTHER INJU- VI. LOCATION OF BRUISES, 411. IX. No STATEMENT OF INJURIES, 413-414. X. How SUFFICIENCY OF NOTICE Cross-references. Sufficiency of statutory notice to municipality of time, place, cause and extent of injury on sidewalk or highway, see 2 N. C. C. A. 1-37; provision of statute or municipal charter as to notice of injury as requiring notice from injured servant of municipal corporation, see 2 N. C. C. A. 44-45; notice of injury caused by waterworks system, see 2 N. C. C. A. 678n; incapacity of injured person as excuse for noncompliance with requirement of statute or charter as to notice of injury as condition to recovery from municipal corporation, see 3 N. C. C. A. 390-405; validity of statute or section of municipal charter requiring notice of injury as condition to recovery from municipal corporation, see 3 N. C. C. A. 437-443. For earlier authorities, see Am. Neg. Rep. Digest, pp. 1248, 1249. I. Injury to Ovaries and Intestines. Plaintiff was injured by falling on a sidewalk in defendant city, and, in compliance with a statute (Mich. Pub. Acts, 1895, No. 215, c. 22, § 1, How. Ann. St., 2nd Ed. § 5695), requiring that notice of "the extent of such injury" be given the city, she served defendant with a notice in which the description of the extent of the injury was as follows: "Your petitioner shows that by reason of said fall she was severely wrenched, strained and bruised. Her back and legs, and the tendons and ligaments thereof, were wrenched, bruised, and strained. She had, some two years prior to that time, undergone a surgical operation, and that the attachments formed after such operation were torn loose, and that she was severely and permanently injured internally, the extent of which is unknown to your petitioner at this time; that at the time of said accident she was in a family way, and said fall caused her to have a miscarriage; that ever since said fall she has suffered great mental For appellant-H. M. Stephens, William E. Richardson, Ernest E. Sargeant, and Dale D. Drain. For respondents-Roche & Onstine. PARKER, J. The plaintiffs seek recovery for personal injuries which they claim resulted to the plaintiff Melvina Lowery from the negligence of the city of Spokane in permitting a boiler to be insecurely placed over a public sidewalk along which she was walking, which boiler, by reason of its insecure position, fell and injured her. Verdict and judgment being rendered in favor of the plaintiffs in the sum of $1,350, the city has appealed therefrom. and physical pain, and has been incapacitated from doing any labor, and prevented from having any amusement, recreation, and pleasure; that she is advised that her injuries are permanent, and further developments may show other and different injuries than have so far become known." Plaintiff's amended declaration described the injury as follows: "The ligament known as the pedicle, joining the left ovary to the broad ligament, was twisted. The circulation of the ovary was impeded, and the ovary became diseased and weakened, and the blood vessels thereof were ruptured, causing a clot of blood to form thereon; that an adhesion of the left ovary with the intestines was formed; that inflammation of the ovaries and intestines was set up, and the ovaries and intestines were inflamed, bruised, wounded, and injured.'' It was held that the injuries alleged in the declaration were sufficiently closely related to those described in the notice that the latter could be proved and damages recovered therefor, especially in view of the fact that the injuries were internal and obscure. Hayes v. City of St. Clair, 173 Mich. 631 (1913). II. Injury to Eyesight. In an action against a city to recover for personal injuries incurred by falling into a hole in a public street, it ap peared that the claim presented to defendant city described the injuries as follows: "She was greatly bruised and injured, and her whole right side was paralyzed, and she suffered great pain under her kidney and right hip joint, and she also suffered severe pains in her right leg." Plaintiff alleged in her complaint, and was permitted to prove, injury to her eyesight. She testified that she was aware of the injury to her eyesight five days after the accident, which was two weeks before she filed the claim. There was judg. ment in her favor for $2,500. Held, that no recovery could be had for injury to eyesight, and judgment was reversed and the cause remanded for a new trial. Horton v. City of Seattle, 53 Wash. 316, 101 Pac. 1091 (1909). III. Injury to Ligaments of Shoulder. In an action in which the plaintiff sought to recover from the defendant village for injuries she sustained by falling on a defective sidewalk, it was stated that the notice given by her to defendant village, stating that she was "greatly hurt, bruised, wounded, the ligaments of the right shoulder ruptured, causing this claimant to become sick and sore, lame, and disordered, and will so continue for a long space of time," sufficiently stated the extent of the injury. Hawley v. Village of Saranac, 157 Mich. 70 (1909). |