Exceptions from Supreme Judicial Court, Knox County.
Action on the case by Esther Anderson, as administratrix of the estate of August Anderson, deceased, against Charles G. Wetter, receiver. A demurrer to the declaration having been sustained, plaintiff filed an amendment to which defendant objected, and, the amendment having been allowed, defendant excepts. Exceptions sustained.
Action on the case brought by the plaintiff in her capacity as administratrix of the estate of August Anderson, late of Rockland, deceased, and against the defendant as receiver of William J. Gray and others, owners and operators of a granite quarry, for negligently causing the death of the said August Anderson.
The writ was returnable to and entered at the September term, 1900, of the Supreme Judicial Court, Knox county, and at the same term the defendant demurred to the plaintiff's declaration. Hearing was had on the demurrer at the following January term of said Supreme Judicial Court. The demurrer was sustained, and the plaintiff was given leave to amend. The amendment when filed was objected to by the defendant, but was allowed by the presiding justice, and thereupon the defendant excepted.
The original declaration in the plaintiff's writ is as follows:
"In a plea of the case, for that the said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray, at South Thomaston, in the county of Knox, on the 24th day of May, A. D. 1003, were and for a long time prior thereto had been the owners, operators, and occupants of a granite quarry called the High Island Granite Quarry, situated within the limits of South Thomaston, and were then and there engaged in quarrying granite in which they employed a largo number of men, and it was the duty of the said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray to provide suitable tools, machinery rigging, derricks, ropes, and appliances for carrying on said operation of quarrying and hoisting granite, and also a safe and secure place for all their workmen therein employed by them or their superintendent or agents, and the plaintiff avers that on the 24th day of May, A. D. 1905, and for a long time prior thereto, the said August Anderson, husband of said plaintiff, was in the employ of said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray, and on said day aforesaid was legally at work there, doing such work about said quarry as ordered by said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray, or their superintendent, and on the said 24th day of May, A. D. 1905, was ordered by said Wm. Gray, Peter Gray, Alexander Gray, and Margaret Gray or their superintendent to take down a derrick and cause it to be moved to another location. And the said August Anderson was on said 24th day of May working at the top of said derrick, when the main guy rope parted at the bight of the block, causing the derrick to fall, throwing the said August Anderson about 45 feet, striking upon his head, from which injury occasioned as aforesaid the said August Anderson died in about three and one-half hours after being thrown as aforesaid and striking upon his head.
"And the plaintiff avers that the rope which parted was not a suitable and sufficient rope to be used upon said derrick, and was worn, old, and rotten, unfit and unsafe to be used upon said derrick, of which fact and knowledge the said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray had notice, and it was the legal duty of said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray to provide strong and suitable ropes to be used upon said derrick, and the plaintiff further avers that on the said 24th day of May aforesaid the said August Anderson was in the exercise of due care in all work performed by him. And the plaintiff avers that the death of said August Anderson was caused by the negligence, fault, and wrongful act of said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray in furnishing an insufficient rope which broke because it was worn, old, and rotten and unfit for use, which fact was known or could have been known had Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray exercised proper care and caution in furnishing proper, strong, and safe rope, instead of the rotten one used and furnished by the said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray upon said derrick. Whereby an action hath accrued to have and recover as administratrix of the estate of said August Anderson for the death caused as aforesaid the sum of $10,000 for the benefit of said estate.
"And the plaintiff avers that Charles C. Wetter, of Philadelphia, in state of Pennsylvania, was at the January term of the Supreme Judicial Court held at Rockland on the first Tuesday of January, A. D. 1906, duly appointed receiver of the property of said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray in Knox county. And the plaintiff further says that on the 2d day of February, 1906, that leave was granted by Hon. A. M. Spear, one of the justices of the Supreme Judicial Court, to prosecute this suit against Charles G. Wetter, receiver of the estate of the parties aforesaid, to the damage of the said plaintiff (as she says) the sum of $20,000."
The amendment filed and allowed is as follows:
"In a plea of the case, for that the said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray, at South Thomaston, in said county of Knox, on the 24th day of May, A. D. 1905, were and for a long time prior thereto had been and were the owners, occupants, and in the control, management, and operation of a certain granite quarry called the High Island Granite Quarry, situated on High Island, and within the limits of said South Thomaston, and were then and there engaged in quarrying granite, in which employment they employed a large number of men; that as incidental to their said operations of their said quarry and for the purposes thereof, to wit, for the purpose of hoisting out blocks of stone from said quarry, and moving and changing said blocks of stone when necessary in the operation of said quarry plant, the said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray long prior to said 24th day of May, 1905, had erected and owned, controlled, maintained, and managed, and on said 24th day of May, 1905, continued to own, control, maintain, and manage, on said quarry plant, a certain wooden derrick of great
height, to wit, of the height of 80 feet, which said derrick was hold in place by several wire guys attached to the top of said derrick, thence extending in various directions to the ground, where they were attached; that there was attached at the bottom of said derrick a boom, so called, of great length, to wit; of the length of 75 feet; that said boom and derrick were operated by guy ropes, so called, furnished and put in place by said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray, which said wooden derrick, boom, guys, and guy ropes were on said 24th clay of May, 1905, defective, decayed, out of repair, unsafe and unsuitable in construction and material for the purposes for which they had been erected, and for which they were then maintained and operated by said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray, all of which the said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray then well knew or ought to have known by the exercise of reasonable care and diligence.
"And the plaintiff avers that on the said 24th day of May, 1905, it was the duty of the said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray, being then, as aforesaid, the owners of and in control and management of said wooden derrick, booms, guys, and guy ropes, to have, keep, and maintain the same in a reasonably safe and suitable condition for the protection and safety of all persons rightfully and lawfully using the same for the purposes for which the same were then and there maintained and operated by said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray.
"And the plaintiff further avers that on said 24th day of May, 1905, the said August Anderson was in the employ of said William J. Gray, Peter Gray, Alexander Gray, and Margaret Gray as a laborer at day wages, and had been for a long time prior thereto doing such work about said quarry plant as said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray or their superintendent and agents ordered him to do; that on said 24th day of May, 1905. said August Anderson was ordered by said William J. Gray, Peter Gray, Alexander Gray and Margaret Gray, or their superintendent and agents, to take down said derrick, and move it to another location; that said August Anderson, in obedience to said orders, was on said 24th day of May, 1905, lawfully at work at the top of said derrick and in the exercise of due care; that while said August Anderson was so at work, and while in the exercise of due care, the main guy rope so furnished and maintained as aforesaid by said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray, because of its decayed and unsuitable condition as aforesaid, which decayed and unsuitable condition was well known to said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray, or ought to have been known by the exercise of reasonable care and diligence, suddenly broke and parted at the bight of the rope at the block, causing the derrick to fall, and throwing the said August Anderson, while so at work and while in the exercise of due care and diligence and without any fault of said August Anderson, to the ground, 80 feet, where he struck upon his head; and by reason thereof he was then and there instantly killed.
"And the plaintiff avers that the death of said August Anderson was caused by the negligence, fault, and wrongful act of said William Gray, Peter Gray, Alexander Gray, and Margaret Gray, as aforesaid, and not...
