« AnteriorContinuar »
result certainly not intended by the legisla- | by boxing or otherwise; neither of which ture, is the construction which excludes things the appellant did. Sundays all Sundays-in the computation of the thirty days.
Pullman's Palace-Car Co. v. Harkins, 5 C. C. A. 326, 17 U. S. App. 22, 55 Fed. 932; Sunday is not a day for the transaction Fairbank v. Haentzsche, 73 Ill. 236; Osage of judicial business. City v. Larkin, 40 Kan. 206, 2 L. R. A. 56, 10 Am. St. Rep. 186, 19 Pac. 658; Kinchlow v. Midland Elevator Co. 57 Kan. 375, 46 Pac. 703; Caswell v. Worth, 5 El. & Bl. 849; Doel v. Sheppard, 5 El. & Bl. 856; Bolch v. Smith, 7 Hurlst. & N. 736.
Bass v. Irvin, 49 Ga. 436; Neal v. Crew, 12 Ga. 93; Cheeseborough v. Van Ness, 12 Ga. 380; Ecker v. First Nat. Bank, 64 Md. 292, 1 Atl. 849; Blaney v. State, 74 Md. 157, 21 Atl. 547; Shepard v. Hull, 42 Me. 577; Conrow v. Schloss, 55 Pa. 28; Drexel v. Mann, 6 Watts & S. 397, 40 Am. Dec. 573; Marsh v. Hand, 35 Md. 123.
The fact, if fact it were, that the signing of a bill of exceptions on Sunday would not be a void act irrespective of this statute, affords no reason whatever for the presumption that this statute was intended to encourage or promote the doing of such secular work on the Sabbath.
Louisville & N. R. Co. v. Turner, 81 Ky. 599; Lewis v. Schwenn, 15 Mo. App. 342; National Bank v. Williams, 46 Mo. 19; Michie v. Michie, 17 Gratt. 109; Burton v. Chicago, 53 Ill. 87; Carothers v. Wheeler, 1 Or. 194; Meng v. Winkleman, 43 Wis. 41; Neal v. Crew, 12 Ga. 93; Kellogg v. Carrico. 47 Mo. 157; Johnson v. Dorsey, 7 Gill, 269; Leffler v. Armstrong, 4 Iowa, 482, 68 Am. Dec. 672; Marks v. Russell, 40 Pa. 372; Simonson v. Durfee, 50 Mich. 80, 14 N. W. 706; Coningsby's Case, 8 Mod. 46; Lee v. Carlton, 3 T. R. 642.
The appellant could or ought to have known, if it did not know, by the exercise of ordinary care, of the hidden danger attendant upon the sweeping by the female appellee in proximity to the shaft in question. The fact is that the appellant had actual notice of the danger of such unguarded shafting.
The question under the inquiry as to genThe question is, What was the probable in- eral usage or customs of others is, What tention of the legislature?
The vertical shaft in question, under the circumstances and conditions shown in the case at bar, was dangerous machinery, and its danger was hidden and unknown to the female appellee, and to all other persons except those persons experienced in machinery; and it was the duty of the appellant, which it owed to the female appellee, before permitting her to sweep around said shaft, or come in proximity to it, either to have warned her of the hidden danger, or to have guarded it
Wood v. Heiges, 83 Md. 257, 34 Atl. 872: Baltimore v. Whittington, 78 Md. 231, 27 Atl. 984.
General custom or usage to guard, or not to guard, smooth shafting is an immaterial inquiry, and is not admissible in evidence in this case.
Wood v. Heiges, 83 Md. 257, 34 Atl. 872: Reed v. Stockmeyer, 20 C. C. A. 381, 34 U. S. App. 727, 74 Fed. 186; Ryan v. Los Angeles Ice & Cold Storage Co. 112 Cal. 244, 32 L. R. A. 524, 44 Pac. 471; Jones v. Florence Min. Co. 66 Wis. 277, 57 Am. Rep. 269, 28 N. W. 207.
would a reasonably prudent employer do under similar circumstances and conditions?
Bertha Zinc Co. v. Martin, 93 Va. 791. 22 S. E. 869; Titus v. Bradford, B. & K. R. Co. 136 Pa. 618, 20 Am. St. Rep. 944, 20 Atl. 517.
The injury which happened to the female appellee was most reasonable and probable under the circumstances and conditions of the case.
Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 24 L. ed. 256; Greenland v. Chap lin, 5 Exch. 248; Ryan v. Los Angeles Ice & Cold Storage Co. 112 Cal. 244, 32 L. R. A.
524, 44 Pac. 471; Lane v. Atlantic Works, 111 Mass. 139.
Where an act is required to be done in any certain number of days after or before a fixed time, Sunday is to be included in computing the number of days when it exceeds seven.
26 Am. & Eng. Enc. Law, p. 10. There is no reason, as might be the case in other statutes, for excluding Sunday, for Sunday, as to the ministerial act of signing a bill of exceptions, is not a dies non.
Blaney v. State, 74 Md. 153, 21 Atl. 547: Marsh v. Hand, 35 Md. 123.
Harris, Sunday Laws, §§ 37, 54; Sutherland, Stat. Constr. § 115; Cunningham v. Mahan, 112 Mass. 58; Brown v. Johnson, 10 Mees. & W. 331; Ex parte Dodge, 7 Cow. 147; King v. Dowdall, 2 Sandf. 131; Neal v. Crew, 12 Ga. 93; Adams v. Dohrmann, 63 Cal. 417.
In the computation of statutory time Sun- | time of the accident it made about 170 revday is always to be reckoned. olutions a minute. It was the duty of the plaintiff to sweep around this shaft as well as other places where the dust collected on the floor, and in doing so on the morning of the accident her apron was caught in some way and drawn around the shaft. She was whirled around, and, violently striking such objects as were in her way, probably the wall and machinery, had her clothing torn from her, and received injuries which confined her in a hospital for nine weeks. The shaft was not boxed, or otherwise protected, and it is not pretended that the plaintiff, who was seventeen years of age and altogether inexperienced in the use of machinery, was ever warned as to any danger from it. She sued the company, and recovered a judgment for $6,000, and, a motion for a new trial having been overruled, an appeal was taken to this court. A motion to dismiss the appeal has been made on the ground that the bill of exceptions was not signed within the time allowed by the statute. That motion must prevail for the reasons hereinafter given; but, as the case was fully argued and we understood counsel to say that a case was pending in which the father of the plaintiff was suing the defendant for loss of services of his daughter as the result of this accident, we will first pass upon the merits of the case.
Though some of the cases hold that where Sunday is the last day it is to be excluded, yet some go so far as to say that, even if it is the last, it should be counted.
Brown v. Vailes, 16 Colo. 462, 14 L. R. A. 120, 27 Pac. 945; Cooley v. Cook, 125 Mass. 406.
A few of the cases, especially those in Massachusetts, draw the distinction between long and short time; holding that, when the period is less than a week, Sunday is not to be counted when an intervening day, but, when longer than a week, it must be counted.
Cunningham v. Mahan, 112 Mass. 58; Caupfield v. Cook, 92 Mich. 626, 52 N. W. 1031.
Generally the cases bear out the contention that Sunday must be computed.
Peacock v. Queen, 4 C. B. N. S. 264; Cressey v. Parks, 75 Me. 387, 46 Am. Rep. 406; Haley v. Young, 134 Mass. 366; Eng lish v. Dickey, 128 Ind. 174, 13 L. R. A. 40, 27 N. E. 495; Cattell v. Despatch Pub. Co. 88 Mo. 356; State v. Green, 66 Mo. 631; Franklin v. Holden, 7 R. I. 215; Hanover F. Ins. Co. v. Shrader, 89 Tex. 35, 30 L. R. A. 498, 59 Am. St. Rep. 25, 32 S. W. 872, 33 S. W. 112; Taylor v. Palmer, 31 Cal. 241; Edelhoff v. Horner-Miller Mfg. Co. 86 Md. 595, 39 Atl. 314.
Cases between master and servant have been so numerous in this state, as well as elsewhere, that it is generally difficult to discuss one of that class without simply repeating what has been already said and announced as the law applicable to them. The precise question whether a master can be held liable for leaving unprotected and unguarded a smooth shaft in a place where one inexperienced in machinery and shafting will be called in the line of her duty, Com-without warning to her, has not been before, this court, but the principles applicable to it have been frequently stated. We are not called upon to discuss some of the questions that frequently arise in cases of this character, as it is not pretended there was any contributory negligence on the part of the plaintiff, nor can it be said that the danger was so obvious or apparent to her as in anywise to interfere with her right of recovery. On the contrary, the evidence not only shows that she was inexperienced and knew of no danger lurking in that rapidly revolving shaft, but the appellant bases its defense mainly on the fact that its agents did not, and could not by the use of reasonable care, have known that there was any danger in leaving the shaft unprotected.
Boyd, J., delivered the opinion of the
The appellee, Jessie May Strickling, was employed by the American Tobacco pany, the appellant, in one of its factories in Baltimore, and whilst engaged in her regular work was seriously, injured by reason, as she claims, of the negligence of the company. When she first went into the company's employ, in January, 1897, she worked on a sieve, putting tobacco in a sieve, but her employment was subsequently changed to sweeping the floors of the factory, and she was so engaged in May, 1897, when she was injured. Amongst other places, she was required to sweep, was a room in which there was a smooth, revolving, vertical shaft, which ran from the floor to the ceiling, and which was in an aisle or passageway between the wall and a stationary machine, being about 26 inches from the former and 16 inches from the latter. The In referring to the law of the case, we shaft is 3 inches in diameter, and at the 'may very properly begin with the proposi
tion stated in the plaintiff's first prayer,, with shafting, which had happened in their that it was the duty of the defendant to own experience or observation. exercise ordinary care to provide a reasonably safe place in which the plaintiff might perform the services which she was employed to perform for the defendant. In the case of Baltimore & O. R. Co. augh, 149 U. S. 368, 37 L. ed. 772, 13 Sup. Ct. Rep. 914, the Supreme Court, of the United States thus announced that principle: "A master employing a servant impliedly engages with him that the place in which he is to work, and the tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place and the tools and machinery, and when he employs one to enter into his service he impliedly says to him that there is no other danger in the place, the tools, and the machinery than such as is obvious and necessary." It is true, however, and the court below so instructed the jury, that the law does not require persons owning and operating factories containing machinery to guard against every accident that may possibly happen to their employees, but only against such as in the ordinary experience of persons using machinery are known to be likely to occur.
G. B. Ahler, who had been a machinist for over twenty years, said a person approaching shafting like this, especially a girl or a woman, is liable to be caught and be wound up by it, and that he always instructed owners of buildings where he erected machinery to box up the shafting. James O. Towson, who had been a machinist since 1875, said: "I consider a vertical shaft to be dangerous if it is not enclosed: and it has always been my custom, when it has been found absolutely necessary to place a vertical shaft, to advise the additional expense of enclosing it." Charles R. Spencer testified to the same effect, and said a vertical shaft was more dangerous than a horizontal one. W. T. Howard, a mechanical engineer, and Benjamin Chambers, a machinist for over thirty years, also spoke of the dangers of such shafting. Mr. Chambers explained very fully and clearly such dangers. He said there was a tendency to create a vacuum about the surface, and that induces the surrounding atmosphere to rush toward the shaft to fill the vacuum created, and thus draw articles of light material around the shaft. In answer to the question about the danger to a female sweeping near it, he said: "The very act of sweeping itself would necessitate a movement, moderately rapid, of her body and of her garments, in passing and sweeping there. it would be moderately rapid, because that would be necessary to an industrious worker, and, on nearing that shaft there would be imminent danger that she would be wrapped about it." Again he said: "All shafts are dangerous; but I regard a vertical shaft. passing up through the floor unprotected. as the most dangerous character of shaft.” That witness also said that, "where shafting stands vertically the method is to take some lumber and make about 7 feet high two half barrels, as it were, or two pieces, which, when put together, form a circle, and that is put around the shaft and hooked together, and that can be readily removed for the purpose of oiling, etc."
Thus the witnesses of the plaintiff not only testified as to the danger of such shafting, but their evidence, if accepted by the
It is contended by the appellant that there was nothing which required the defendant to anticipate an accident of this sort as likely to occur from a failure to guard this piece of smooth shaft, and that the defend-jury as correct, was sufficient to justify ant neither knew, nor could have known by them in believing that the defendant knew, the exercise of ordinary care, of the hidden or ought by the exercise of reasonable care danger to the plaintiff or others. But the to have known, that it was not safe to thus record, we think, fully justified the court in leave it unprotected when the duties of the submitting those questions to the jury. A plaintiff (and possibly other inexperienced number of expert witnesses testified, and persons) required her to come in close prox. those on the part of the plaintiff not only imity to it in the discharge of her duties. said there was danger from leaving a shaft The superintendent of the factory, in anof this kind unprotected, but they gave in- swer to the question: "Had you ever known stances of accidents from coming in contact of anybody being injured by a smooth piece
The plaintiff's third prayer is the one that is most objected to. It submitted to the finding of the jury the employment and experience of the plaintiff, the location and construction of the shaft, whether it was dangerous to female employees required to come in close proximity to it, whether the defendant knew, or might have known, by the exercise of ordinary care, of such danger as probable, whether such danger was obvious and apparent to a person ignorant of and inexperienced in the operation of such shafts, whether the plaintiff was warned of its danger, and whether the defendant was guilty of the want of ordinary care in constructing and putting the shaft in motion when the plaintiff was sweeping the room, as well as the question of care on the part of the plaintiff.
of shafting of that kind prior to this acci- | thirty days from the rendition of the verdent?". replied: "Only from knowledge dict of the jury or the findings of the court gleaned from the daily press",-thus ad- upon the issues of fact in said cause, but not mitting that he had knowledge from that thereafter unless the time for signing said public source that accidents did happen as bill of exception shall have been previously the result of coming in contact with smooth extended by order of court, or by consent shafting. of parties," etc. There was no consent of the parties, and the order extending the time of signing was passed after the expiration of thirty days from the rendition of the verdict, if Sundays be included. It is con
Of course it would not be necessary, under all circumstances, to cover shafting. It may be so situated as to be safe, and at least beyond the reach of inexperienced persons; but, when shafting is so easily pro-tended, however, that Sundays should be tected as described by some of the witnesses, excluded, and that the statute means thirty and when it is so situated that those inex- working or judicial days. But with that perienced with its danger may be brought contention we cannot agree. If there had in contact with it in the discharge of their been error in the rulings of the court below, duties, there can be no reason why in a it might have seemed a hardship that the case of this kind the question whether the appellant should have lost its right of apowner of the factory was guilty of the want peal by being one day too late; but neither of ordinary care, and whether it was an this court nor the court below can disregard accident likely to occur, should not be sub- the plain language of the statute, and we mitted to the jury. have had occasion to speak more than once In Pullman's Palace-Car Co. v. Harkins, of the importance and necessity of having 5 C. C. A. 326, 17 U. S. App. 22, 55 Fed. bills of exception signed promptly. West932, this very question was considered. The minster v. Shipley, 68 Md. 610, 13 Atl. 365; court said: "Revolving shafting, it appears, | Palmer v. Hughes, 84 Md. 652, 36 Atl. 431. is attended with peculiar and latent danIt seizes with fatal result the clothing of any person who unconsciously or incautiously comes in contact with it;" and again it said that the evidence justified the statement of the judge below that "all the witnesses agree in the opinion that shafting when in motion is very dangerous, and that it should be boxed, or covered, or protected in some manner when in a place where persons are liable to come into contact with it." See also Fairbank v. Haentzsche, 73 Ill. 236; Kinchlow v. Midland Elevator Co. 57 Kan. 375, 46 Pac. 703.
Thus, we have in this case not only the fact that an accident did happen by the plaintiff coming in contact with smooth revolving shaft and the evidence of a number of witnesses that such accidents are likely to happen if the shafting is not guarded, and the admission of the superintendent of the factory that he had seen notices of them in the public press; but we find the question has already been before the courts. The prayers, as granted, correctly announce the law, and we will not discuss them further, but would affirm the judgment if it was properly before us, as there was no other exception taken.
"As a general rule, where an act is required to be done in any certain number of days after or before a fixed time, Sunday is to be included in computing the number of days, when it exceeds seven. If it is less than seven, Sunday must be excluded." 26 Am. & Eng. Enc. Law, p. 10, and cases cited. Of course that rule will not apply when Sundays are expressly excluded by the statute, or the intention of the legislature to exclude them is manifest. The rule may be said to be somewhat arbitrary, yet it is not without a reason. When the legislature fixes a limitation of time of more than seven days, it knows that the period must necessarily include one or more Sundays. and hence, if it intends to exclude them, it can and should say so; but, when the period of time is less than seven days, it may or may not include a Sunday, depending upon the day of the week it is computed from. It is said in Hanover F. Ins. Co. v. Shrader, 89 Tex. 35, 30 L. R. A. 498, 59 Am. St. Rep. 25, 32 S. W. 872, 33 S. W. 112, "the principle would seem to be that when but a few days are allowed in which to do the act, it is not to be presumed the legislature intended further to abbreviate it, in effect by including a day ordinarily observed as a day of cessation from all ordinary business. For example, where two days are designated it is not reasonable to hold that it was the
The verdict was rendered on the 4th day of April, 1898, and nothing was done in reference to the bill of exceptions until May 5th, 1898, when an order was passed extend-purpose to include a Sunday when the prac tical effect of the ruling would be to reduce the time to one day only. But, when weeks are included in the time allowed, the reason
ing the time for signing and filing it. Section 170 of article 4 of the Code of Public Local Laws provides that "bills of exception may be signed in any cause pending does not apply." In State v. Harris, 121 in any of said courts at any time within | Mo. 445, 26 S. W. 558, cited by the appellant,
allowed, as we can see no valid reason for excluding the last Sunday and including the others. The general rule, subject to but few exceptions, is that statutory time of over seven days cannot be extended because the last day falls on Sunday. 2 Enc. Pl. & Pr. p. 256; Brown v. Vailes, 16 Colo. 462, 14 L. R. A. 120, 27 Pac. 945; Cooley v. Cook, 125 Mass. 406; Ex parte Dodge, 7 Cow. 147; Johnson v. Meyers, 4 C. C. A. 399, 12 U. S. App. 220, 54 Fed. 417.
As neither the bill of exceptions, nor the order extending the time, was signed within thirty days from the rendition of the verdict, the motion to dismiss the appeal must prevail.
this distinction is recognized. There it was held that Sunday would be excluded in the computation of the four days within which motions for new trials can be made; but in the same case, where sixty days from August 9th had been allowed within which to sign a bill of exceptions, it was said that October 9th was too late, thus, in effect, holding that Sundays must be included. See also State v. Seaton, 106 Mo. 198, 17 S. W. 169; Cunningham v. Mahan, 112 Mass. 58; Caupfield v. Cook, 92 Mich. 626, 52 N. W. 1031; Hanover F. Ins. Co. v. Schrader, 89 Tex. 35, 30 L. R. A. 498. 59 Am. St. Rep. 25, 32 S. W. 872, 33 S. W. 112.
Frank A. BONSAL, Appt.,
There are but few exceptions to the general rule laid down above. There are cases which may seem to be, but a careful examination of the most of them will show that, when Sundays are excluded from the computation of time of more than a week, it is George W. YELLOTT et al., Commissioners of Baltimore County, etc. because of the language of the statute, or because the days referred to are such as the ( . . . . . . Md.......) courts find exclude Sundays. We were cited to the case of Matthews v. State, 92 Ala. 89. 9 So. 740, to show that the constitutional limit of the sessions of the legislature in that state to fifty days excluded Sundays. But we do not understand that to have been the construction that has always been put on our constitutional provision that the general assembly may continue its sessions for a period not longer than ninety days. There are many instances in our statutes where the practice has always been to include Sundays. Take, for example, § 8 of article 66 of the Code, which provides for twenty days' notice of the time, place, and terms of sale under powers of sale contained in mortgages. If Sundays are to be excluded, many sales have been made without legal notice, as it has not been the practice to exclude them. Section 6 of article 5 provides for appeals from orders or decrees of the orphans' courts within thirty days, and so 7 of that article allows thirty days for appeals under the insolvent laws. In none of those cases has it been the practice, so far as we are aware, to exclude Sundays in the computation of the time fixed by the respective statutes, and other instances might be given.
Nor do we think the language of the statute, "at any time within tuirty days," etc., can make any difference. That sim ply means at any time within the thirty days that the court can act; and whether or not a bill of exceptions can be signed on Sunday is not relevant to the question in this case.
It will not be out of place, and may prevent further trouble, to add that if the thirty days expire on Sunday, it should still be counted, and the next day should not be
Appropriations to aid counties in the construction of public roads are not forbidden by a constitutional provision that the general assembly shall not have power to involve the state in the construction of works of internal improvement, nor to grant any aid thereto, which shall involve the faith or credit of the state, nor make any appropriation therefor.
(March 22, 1905.)
PPEAL by plaintiff from a decree of the Circuit Court for Baltimore County in favor of defendants in a suit to enjoin the expenditure of public funds for the improvement of highways. Affirmed.
The facts are stated in the opinion. Messrs. William S. Bryan, Jr., and Redmond C. Stewart, for appellant:
The language of the prohibition is clear and unequivocal, and includes all internal improvements.
There is nothing in the constitutional debates of 1851 to show that the words "internal improvements" were used in any limited sense.
Bandel v. Isaac, 13 Md. 202.
In construing the Constitution, as in construing every other written paper, we should give the instrument the meaning which the framers of it intended, and not the meaning which we may now think it would have been wiser or better for them to have intended. Queensberry Case, 1 Blight, 479; Jones v. Smart, 1 T. R. 51.
NOTE. For other cases in this series as to constitutional provisions against state engag ing in works of internal improvement, see Rippe v. Becker, 22 L. R. A. 857; Oren v. Pingree, 46 L. R. A. 407; and State er rel. Jones v. Froehlich, 58 L. R. A. 757.