(108 A.)

[2] Whether the plaintiff is entitled to the benefit of Laws 1911, c. 163, §§ 1, 2, depends on what the Legislature intended when it enacted section 1, subdiv. (b). The language the Legislature used is all the evidence there is relevant to that issue, and, in so far as that is material to the question we are considering, section 1 reads as follows:

within Laws 1911, c. 163, § 2, authorizing recovery for injury due to negligence of employer or any of his employés.

2. MASTER AND SERVANT

289(1)—WORK

MAN NOT NEGLIGENT AS MATTER OF LAW. In an action by a workman whose hand was caught by a stone being lowered by a derrick, held, that it did not conclusively appear that plaintiff was negligent.

3. MASTER AND

SERVANT 296(17)-LAST CLEAR CHANCE THEORY PROPERLY SUBMITTED.

"This act shall apply only to workmen engaged in manual and mechanical labor in the employments described in this section, which, from the nature, condition or means of prosecution of such work, are dangerous to life or limb of workmen engaged therein, because in Where plaintiff's fellow workman operatthem the risks of employment and the danger ing drums controlling guy lines knew when he of injury caused by fellow servants are great lowered a stone moved by a derrick that plainand difficult to avoid. ** (b) Work in any tiff was standing in a dangerous place, apshop, mill, factory or other place, in connec-parently unaware that it was so, when he dition with or in proximity to any hoisting ap-rected his fellow workman to act, the court paratus, or machinery propelled or operated properly instructed that jury might find for by steam or other mechanical power in which plaintiff on last clear chance theory. shop, mill, factory or other place five or more persons are engaged in manual or mechanical labor." Laws 1911, c. 163, § 1.

Transferred from Superior Court, Merrimack County; Marble, Judge.

Action by Axel Olson against Thomas Fox. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

Case for negligence.

Trial by jury and

If this language is given its ordinary meaning, section 1 is intended to describe the employments in which a person must be engaged to entitle him to the benefit of the act, and the office of subdivision (b) is to delimit the number of persons the master must employ and the kind of work in which they must be engaged, and not a danger to which they must be exposed, to entitle them to the benefit of the act. Boody v. K. & C. Mfg. Co., 77 N. H. 208, 212, 90 Atl. 859, L. R. A. 1916A, | last clear chance doctrine. Transferred from 10, Ann. Cas. 1914D, 1280.

In short, the test to determine whether an employé is entitled to the benefit of the act is to inquire whether: (1) He was engaged in manual or mechanical labor; (2) any part of his work was done in proximity to hoisting apparatus or power driven machinery (Morin v. Nashua Mfg. Co., 78 N. H. 567, 103 Atl. 312); and (3) whether five or more persons engaged in manual or mechanical labor were employed in and about the mill, etc., in which he worked.

Case discharged.

(79 N. H. 332)

OLSON v. FOX.

verdict for the plaintiff. The facts are stated in the opinion. The defendant excepted to the denial of his motion for a nonsuit and a directed verdict and to the submission to the jury of the issue of recovery upon the

the April term, 1919, of the superior court by Marble, J.

John M. Stark and Robert W. Upton, both of Concord, for plaintiff. Nathaniel E. Martin and William W. Thayer, both of Concord, for defendant.

PEASLEE, J. The plaintiff was an experienced stonecutter, and at the time of the accident was engaged with his fellow workman Hopkins in moving a large stone by Imeans of a derrick. The derrick boom did not move up and down, and when it was necessary to bring a stone nearer the mast the method was to attach to it a second line running to the head of the derrick mast and called the "inside guy." By shortening this line the stone would be moved upward and toward the mast. Merri- toward the mast. When a stone so suspended by the two lines is to be lowered it is necessary to let out both lines at once and in proper proportion, or the stone will be moved inward or outward, as the case may be. In the instance in question the men were moving the stone from a large pile into a shed. They placed two skids and two rolls thereon to run it in on. The stone supported by both guys was then swung into position over the rolls. The plaintiff then sent Hopkins to operate the drums controlling the

(Supreme Court of New Hampshire. Merrimack. Jan. 6, 1920.)

1. MASTER AND SERVANT 287 (4)-FELLOW WORKMAN'S NEGLIGENCE FOR JURY.

Where plaintiff workman whose hand was caught by a stone being lowered by a derrick testfied that one of the guy lines was tight and so twisted the stone back onto him, and a fellow workman operating the drums controlling the guys denied that he failed to properly release them, plaintiff was entitled to go to the jury on the issue of defendant's fault,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"The plaintiff's inability to control the situation is the test; and it is immaterial whether he is not in actual charge of the subject of injury because the absence of his body shows he could not have been, or the fact be proved by showing that for other cause he, himself, was not in control. Whether under such cirtion he has, ought to have known of the plaincumstances the defendant, upon the informatiff's condition-that he was drunk, asleep, nonjudging, or not observing-bears on the defendant's negligence. If it cannot be found that he ought to have known the plaintiff's condition, he is not liable; if he ought, he may be." Cavanaugh v. Railroad, 76 N. H. 68, 72, 73, 79 Atl. 694, 696, 697.

guys, while he himself remained by the stone [principle involved is given its broadest apto prevent its turning. It was suspended by plication in this state: what is called a three-cornered hitch, and for this reason the plaintiff thought it dangerous to stand at either side of it and therefore stood between it and the derrick mast. He gave Hopkins the signal to lower, and as the stone descended quickly it moved suddenly toward him and caught his hand between it and another stone which was lying near by. The plaintiff testified that he then noticed that the inside guy was tight; that if it had been slack the stone would have come onto the rolls all right and stayed there; that at the time the stone struck the rolls the inside guy was tight and twisted the stone back onto him. Hopkins denied that he failed to properly release the inside guy. It was a disputed question where the stand where the plaintiff did, while the plainHopkins testified that it was dangerous to plaintiff should have stood. There was testiff testified that he thought it the proper timony that where he stood was the safest place to stand. Hopkins knew when he lowplace, and other testimony to the effect that ered the stone that the plaintiff was standing he should have stood at one side of the stone. in the dangerous place, apparently unaware [1] The defendant contends that it could that it was so. The fact that the plaintiff dinot be found that Hopkins failed to properly rected Hopkins to act does not change the esrelease the inside guy. But the evidence was sentials of the situation. An act was about to that the apparatus was in good working be done by Hopkins which would be dangerous order, and taking this to be the fact it is rea- to Olson. Both knew the act was to be done, sonable to conclude that the failure of that but Hopkins knew the danger, while Olson line to pay out was caused in the manner did not. It could be found that Hopkins charged. If it failed to operate properly, and knew Olson did not appreciate the situation all other causes are excluded upon the testior understand the alleged necessity for standmony that it was in good working order, it ing elsewhere. In this situation it is no aid is not guesswork, but rather a reasonable to the defendant to show that the order for inference to conclude that the failure result-Hopkins to act came from Olson. That order ed from this cause. Ouelette v. J. H. Mendell Engineering & Construction Co., 79 N. H. 1120, 105 Atl. 414.

If the jury so found they might well conclude that Hopkins was negligent. As the case comes under the provisions of Laws 1911, c. 163, § 2, this made a case for the plaintiff upon the issue of the defendant's fault.

[2] The claim that it conclusively appeared that the plaintiff was negligent cannot be sustained. While there was evidence tending to that conclusion, there was other evidence that what he did was a proper method

of procedure. But if it be conceded that the plaintiff ought, as a reasonable man, to have taken a different position, the case was still for the jury upon one of the grounds upon which it was submitted.

[3] Subject to exception the jury were instructed that they might find for the plaintiff upon the last clear chance theory. The

was based upon lack of knowledge, evident to Hopkins. It could well be found from these facts that Hopkins' superior knowledge of the situation brought the case within the rule of the Cavanaugh Case:

"The conclusion that one conscious of danger of serious injury to a human being if he persists in the course which he is pursuing, which he can prevent by care, should be discharged from responsibility because of negligent ignorance of the danger in the person injured, is so fundamentally unjust and contrary to natural reason that few cases are to be found that carry the logic of the rule of contributory negligence to that extent." 76 N. H. 72, 79 Atl. 696.

Liability upon other grounds was also claimed, but as those considered are sufficient to take the case to the jury and to warrant the instruction given, it is not necessary to go further.

Exceptions overruled.
All concurred.

(108 A.)

(79 N. H. 279)
ROCKINGHAM COUNTY LIGHT & POW-
ER CO. v. PHILBRICK et al.

(Supreme Court of New Hampshire. Rocking-
ham. Nov. 4, 1919.)

1. CONSTITUTIONAL LAW 227, 280-EMI

NENT DOMAIN STATUTE NOT UNCONSTITU-
TIONAL AS DENYING DUE PROCESS OR EQUAL
PROTECTION.

Statute of 1919, c. 162, § 1, providing that public utilities can acquire lands, flowage rights, and easements by paying the owner compensation therefor, is not unconstitutional as taking property without due process of law or as denying equal protection of the law in violation of Const. U. S. Amend. 14, § 1.

2. EMINENT DOMAIN 71-STATUTE PROVID-quate compensation for all damages sustained ING FOR COMPENSATION NOT UNCONSTITU

Transferred by Public Service Commission. Petition by the Rockingham County Light & Power Company against Philbrick and others. Defendants moved that petition be dismissed, and the proceedings were trans-owner in the state. All persons subjected to ferred by the Public Service Commission. tion of the law is afforded to all, which meets it are treated alike, and thus equal protecCase discharged.

For other cases see same topie and KEY-NUMBER in all Key-Numbered Digests and Indexes

One claim made by the defendants was In a proceeding in the form of a writ of that Caron and his successors in right were entry, where defendants recovered a judgment entitled to recover for betterments, under P. for betterments under Pub. St. 1901, c. 228, §. c. 228, § 2. Subject to the plaintiffs' ex2, and defendants' predecessor and plaintiffs' grantor had compromised the question of title, ception this issue was submitted to the jury, and it had been agreed that defendants' prede- who found for the defendants in the sum of cessor would pay a certain amount and that $2,148.

(108 A.)

the bank which held the mortgage in pledge from Adam, by Adam's widow, and by Caron's wife. Caron, who was said to be in Western Canada, did not testify, but his admissions in the mortgages that the land was subject to a claim of the plaintiffs were in evidence.

[1] The betterment law is of statutory tiffs' agent, by the attorney who represented origin, and the requirements are actual peaceable possession under a supposed legal title for more than six years. It must be shown that the occupant was honestly mistaken as to his title to the premises or he cannot have the relief provided by the statute. Tripe v. Marcy, 39 N. H. 439; Walker v. Walker, 64 N. H. 55, 5 Atl. 460.

The evidence relied upon to show that Caron occupied under a supposed title comes from his wife. She testified that the representative of the owner said to her husband: "You can go there and work and make yourself a home, and that he would never ask us any money or nothing. Nobody can drive you off."

She also testified that some years later, after the improvements had been made and a question raised about the title, the agent said:

"What you want a deed for? Nobody asks you any money for that. Why don't you stay

sit and leave the matter?"

[2, 3] This evidence would warrant a finding that Caron entered and made improvements under an oral promise to make a gift of the land to him. If such were the facts, he would have been entitled to a decree for specific performance. Seavey v. Drake, 62 N. H. 393; White v. Poole, 73 N. HI. 403, 62 Atl. 494; Blazo v. Cochrane, 71 N. H. 585, 53 Atl. 1026.

[4] As this is a title recognized and enforceable in court, it is a "legal title" within the meaning of the statute. The phrase as there used was intended to have a general application. There was no purpose to restrict the relief to cases where the claimant's title would be one recognized at law, to the exclusion of those enforceable in equity only. The remedy is of an equitable nature, and must have been designed to protect equitable rights. But while Caron held a legal title within the meaning of the statute, other elements necessary to sustain a claim for betterments are lacking.

Upon the undisputed evidence, coming in part from the defendant herself, it appears that the plaintiffs made a claim that purchase money was due from Caron and that in 1907 all the parties in interest-the plaintiffs, Caron, and Adam, who held a mortgage executed by Caron-agreed to adjust their differences by the payment of $800 to the plaintiffs for a deed of the premises. Thereafter Adam took a quitclaim deed from Caron, and has since occupied thereunder. No one paid the $800. The plaintiffs have been and now are ready to convey upon receipt of the agreed sum.

[5] The plaintiffs have never denied the right of Caron or his assignee to a conveyance. The controversy related solely to the terms upon which the conveyance was to be made. Assuming, as the jury have found by their verdict for betterments, that Caron reasonably understood that he had a right to a deed without making any payment, the undisputed fact remains that upon the plaintiffs' denial of this claim Caron and Adam abandoned it for a new agreement to pay $800. This compromise of their differences was binding upon the parties. McIsaac v. McMurray, 77 N. H. 466, 471, 93 Atl. 115, 118 (L. R. A. 1916B, 769). It is not invalioriginal claim to be good, or because it was dated by a finding that Caron supposed his so in fact. "A settlement of a controversy is valid, not because it is a settlement of a valid claim, but because it is a settlement of a controversy." Flannagan v. Kilcome, 58 N. H. 443.

Whatever rights Caron originally had were terminated by the new agreement. They are no longer available as a basis for a claim against the plaintiffs, and the issue as to betterments should not have been submitted to the jury. It is not necessary to now consider whether the agreement to settle the matter, which was made in 1907, would still be open to the defendants, if the plaintiffs objected; for it was stated by the plaintiffs at the argument that they were ready to convey upon the payment to them of the $800 agreed upon.

[6] In this situation, the plaintiffs are to be treated as holding an equitable mortgage

the premises to secure that payment. What order should be made, whether there should be a strict foreclosure with reasonable time for the defendants to redeem or whether a sale of the property should be ordered, depends upon the finding of the superior court of what justice requires. Rollins v. Brock, 78 N. H. 456, 101 Atl. 636. The fact that this proceeding is in the form of a writ of entry is no obstacle to granting such relief as the facts in the case call for.

Exceptions taken by the defendants have not been argued by them and are understood to be waived.

As there must be further proceedings in the superior court to determine the form of the judgment or decree, the order is Case discharged.

Upon the evidence in the case there is no ground for a finding that this agreement was not made. It was testified to by the plain-sented. The others concurred.

PARSONS, C. J., and PLUMMER, J., dis