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The New Hampshire statute is made applicable by section 1 thereof only to "workmen engaged in manual or mechanical labor in the employments described in this section, which, from the nature, conditions or means of prosecution of said work, are dangerous to the life and limb of workmen engaged therein, because in them the risks of employment and the danger of injury caused by fellow servants are great and difficult to avoid.”

The only portion of the subsequent description applicable here, according to the contention of either party, is as follows:

"(b) Work in any shop, mill, factory or other place on, 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."

So far as the place wherein the plaintiff was working when injured is alone concerned, the work being done comes under the statutory description. “Mill,” as used in the above quotation, includes not only the buildings wherein the "work” is done, but everything appurtenant to them, as a dam, flume, yard, or ways provided for use by employees. Boody v. K. & C. Mfg. Co., 77 N. H. 208, 210, 90 Atl. 859, L. R. A. 1916A, 10, Ann. Cas. 1914D, 1280.

But, in order to be within the statute, the employment wherein the plaintiff was manually laboring when injured must not only be work in a mill, but also "work in connection with or in proximity to any hoisting apparatus or machinery," such as the statute describes. Moving the cupboard, if it is to be considered by itself, without regard to any work included within the plaintiff's general employment, is certainly not shown to have been work of that description. It had no connection with any machinery whatever, nor can we believe that it was "in proximity to" any, in the statutory sense, even if such machinery was to be found inside the building to which the platform belonged.

If the plainitff had been employed to do work such as never required him to enter this building, or any building belonging to the mill and containing such machinery, he would not have been entitled to the statutory remedy, according to Lizotte v. Nashua Mfg. Co., 78 N. H. 357, 100 Atl. 757. This, however, was not the case, as has been stated; and according to the construction of the satute adopted in Boody v. K. & C. Mfg. Co., above cited, it is the work included in the scope of the plaintiff's employment which here controls, and not the character of the particular work being done by him under said employment at the particular time of his injury. Under his employment, the plaintiff might at any time be engaged in manual labor in connection with or in proximity to the machinery in the mill, and he had frequently been so engaged. In view of the above decision by the highest court of the state, and the construction of the statute therein adopted, we are unable to hold that the District Court erred in ruling that the plaintiff was entitled to bring the statutory action.

[3] 2. The only remaining error complained of is assigned by the plaintiff. It consists in the allowance of the defendant's motion to set aside the verdict, because based upon evidence insufficient to support it, particularly because the plaintiff's own negligence, contributing to his accident, conclusively appeared therefrom. If the verdict ought not to have been set aside, final judgment for the plaintiff is to be directed, in accordance with the above stipulation of the parties.

The provisions of the statute entitled the plaintifi to recover, if his injury was due to accident arising out of and in the course of his employment, and caused, in whole or in part, by the negligence of any of his employer's officers, servants, or employees, unless it was made to appear by a preponderance of evidence that his own negligence contributed. The verdict should therefore have been allowed to stand, if there was any evidence upon which it could be found that the fellow servant's negligence caused the plaintiff's injury, and that his own negligence did not contribute thereto. The jury was taken to view the scene of the alleged accident on the first day of the trial. Both the plaintiff and the fellow servant who was helping him move the cupboard testified at the trial in person.

That the fellow servant. failed to exercise due care in directing his movements at the end of the cupboard nearest the wall, in view of the room left on the platform at its other end for the necessary movements of the plaintiff in performing his part of the turning operation, and that the plaintiff was thereby caused to lose his footing and fall from the platform, seems to us.a conclusion that reasonable men might have drawn. In setting aside the verdict the learned judge made no intimation to the contrary, nor has the defendant strongly urged a contrary view before us.

We are unable to hold that no other reasonable conclusion was possible than that the plaintiff was also negligent and that his own negligence contributed to his injury. Whether or not the method of moving the cupboard which the plaintiff adopted in directing the operation was reasonably safe or not was for the jury to determine, in view of all the circumstances as shown to them. We do not think it can be said that it was necessarily unsafe, whether the fellow servant used the care or not, and the plaintiff was not bound to anticipate the fellow servant's tailure to use due care.

The plaintiff is therefore entitled to judgment as agreed.

The judgment of the District Court is reversed, and the case remanded to that court, with directions to enter final judgment for the plaintiff in the sum of $5,000, execution to issue thereon only for said amount, with taxable costs. Pellerin recovers his costs in this court.



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Under the Workmen's Compensation Act of West Virginia (Acts 1915, c. 9, as amended by Acts 1915 [Ex. Sess.) c. 1), which exempts from its operation persons in "casual employment,” the exemption depends, not on the nature of the work performed, but on the nature of the contract of employment, and one hired for a limited and temporary purpose, though within the scope of the master's business, is within the exemption.

(For other cases, see Master and Servant Dec. Dig. $ 362.) 2. MASTER AND SERVANT-MASTER'S LIABILITY FOR IN


Where plaintiff, temporarily employed by defendant telegraph company to assist in repairing a portion of its line, was injured by the falling of a pole upon which he had climbed in the course of duty, which was caused by the breaking of the pole where it had become decayed below the surface of the ground, the defect not being apparent by inspection above the ground, plaintiff was not chargeable as matter of law with contributory negligence or assumption of the risk.

(For other cases, see Master and Servant, Dec. Dig. § 289[21].)

Before Pritchard, Knapp, and Woods, Circuit Judges.

In Error to the District Court of the United States for the Northern District of West Virginia, at Parkersburg; Alston G. Dayton, Judge.

Action at law by Charles H. Hickman against the Western Union Telegraph Company. Judgment for nlaintiff, and defendant brings error. Affirmed.

Herbert Fitzpatrick, of Huntington, W. Va. (Enslow, Fitzpatrick & Baker, of Huntington, W. Va., on the brief), for plaintiff in error.

V. B. Archer, of Parkersburg, W. Va., for defendant in error.

KNAPP, Circuit Judge. [1] In this action of negligence plaintiff in error, defendant below, set up in defense and claimed protection under the Workmen's Compensation Act of West

* Decision rendered, January 3, 1918. 248 Fed. Rep. 899.

Virginia (Acts 1915, c. 9, as amended by Acts, 1915 [Ex. Sess.) c. 1) in force when the accident happened. This act, which otherwise would bar the suit, excepts from its provision "casual employment,” and plaintiff can therefore maintain his action if he was engaged in casual employment" at the time he got hurt. The facts in that regard appear to be these:

Plaintiff was about 27 years old when he received the injuries for which he sues. His previous employment had been mainly with telephone companies, and he was an experienced, if not expert, telephone lineman. For a while before the accident he was out of work and looking for something to do. His father, James W. Hickman, an inspector for the defendant company, had been directed to repair its clock circuit in the city of Parkersburg, a job of brief duration and costing only a small sum. Under authority to get a lineman to help him, he hired his son, the plaintiff, for "not over five days," and they began the work. On the morning of the fourth day, a telegraph pole, which plaintiff had climbed to string a wire, broke down under his weight and he was thrown to the ground and severely injured. Was his employment "casual"?

The English Compensation Act, which some of our states have closely followed, excepts "a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business.”. Construing this act, the English courts have held that the kind of work done by the employee, rather than duration of service, is the de termining factor. If the work pertain to the business of the employer and be within the scope of its purpose, the employment is not "of a casual nature," although the hiring be only for a short period of time. The Connecticut statute (Pub. Acts 1913, c. 138) is practically the same as the English, and accordingly the Supreme Court of that state has held (Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328, L. R. A. 1916E, 506) that the nature of the employment was measured, not by tenure of service, but “by the character of the work." The New Jersey statute likewise exempts those "whose employment is of casual nature.”

But the West Virginia act, in defining exceptions, uses the terms "casual employment” and “person casually employed.” The equivalent exemption of persons "whose employment is but casual" appears in the Compensation Laws of Massachusetts (prior to the amendment of 1914 (St. 1911, c. 751, as amended by St 1912, c. 571]), Illinois (Laws 1911, p. 315, as amended by Laws 1913, p. 335), Michigan (Pub. Acts [Ex. Sess.) 1912, No. 10.), and Minnesota (Gen. St. 1913, 88 8195--8230). This noticeable departure from the language of the English statute indicates a legislative intent to broaden the exception and place it on a different basis. Its apparent effect is to make exemption depend, not on the nature of the work performed, but on the nature of the contract of employment. If the hiring be incidental or occasional, for a limited and temporary purpose, though within the scope of the master's business, the employment is "casual," and covered by the exception. And so it has been held by the courts of states whose Compensation Acts have substituted "casual employment,” or words of the same import, for the "employment of a casual nature," found in the English statute. In re Gaynor, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363; In re Cheevers, 219 Mass. 244, 106 N. E. 861; Aurora Brewing Co. v. Industrial Board, 277 Ill. 142, 115 N. E. 207; Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 Pac. 3031. Thus, in the Gaynor Case, supra, in which the subject is discussed at length, the court says that “casual” is the antonym of “regular," “systematic," "periodic," and "certain.” These decisions, and the convincing reasons on which they rest, warrant the conclusion that plaintiff was engaged in “casual employment" when the accident occurred.

This conclusion finds further support in the so-called insurance feature of the West Virginia statute, under which a compensation fund is created. The premiums which make up this fund are paid by the employers on the basis of their monthly pay rolls, which are certified to the treasurer of the state, and they are authorized to deduct each month from the pay of their employees, excepting persons casually employed, 10 per cent. of the premium paid for that month. But it does not appear, and we do not understand it to be claimed, that Hickman was on defendant's pay roll for the month in which he was injured, or that any deduction from his pay for a few days' service was made or contemplated. In short, taking all the circumstances into account, it seems but reasonable to hold that plaintiff's employment was "casual” within the meaning of the West Virginia act. Certainly, as we think, the defendant was entitled to no more than the submission of the question to the jury, as was done, and their finding on that issue must be accepted as conclusive.

[2] The defenses of contributory negligence and assumption of risk may be disposed of without extended comment. There was testimony from which the jury might find that the pole which broke appeared to be in sound condition; that plaintiff looked at it before ascending, and observed nothing to suggest that it could not be climbed with safety; that it broke below the surface of the ground, where it was rotten and decayed; that discovery of this subsurface condition required the use of certain tools with which plaintiff had not been provided; that proper inspection would have disclosed the defect; that defendant employed inspectors and had some system of inspection of its clock circuit, but had not inspected the pole in question for at least a number of years; that it was necessary for plaintiff to climb this pole in doing the work for which he was hired; and that he was acting with reasonable care and prudence when the

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