ings in favor of plaintiff, and defendant excepts. Exceptions overruled.

Timothy W. Coakley, Danl. H. Coakley, Roland H. Sherman, and Chas. C. Johnson, for plaintiff. Choate, Hall & Stewart, for defendant.

LORING, J. The defendant's contention in support of its second request for a ruling is that in a case where the minor child who is injured (after getting on the street in question without negligence on the part of his parents) has not exercised any care, the burden is on the plaintiff to prove that he was incapable of exercising any care; and that in the case at bar these plaintiffs did not sustain the burden of proving that fact; that in the case at bar that fact was left to conjecture and not proved.

There doubtless is an age where the court can say as a matter of law that a child cannot exercise any care under any circumstances. There also is an age where the court can say as matter of law that a minor is capable of exercising some care under circumstances like those in question. See in this connection Collins v. South Boston R. R., 142 Mass. 301, 314, 7 N. E. 856, 56 Am. Rep. 675. The limits of these two classes are not settled by our decisions. There are now and probably always be cases where it may be fairly said (as it was said in the case at bar) that the child did not under the circumstances exercise any care, and yet it cannot be said as matter of law that an ordinarily prudent child of the age having the capacity of the child in question (whichever is the correct statement) was capable or incapable of exercising care. Such cases must be left to the jury. In such cases the matter is not a matter of conjecture, and yet nothing more can be proved than was proved in the case at bar. In the case at bar it was proved that the plaintiff in question was "a lively child, active and energetic," 4 years and 3 months old. The circumstances calling for the exercise on his part were these: The accident happened on one of the main thoroughfares of Boston, on which the defendant had a double track, a surface railway, and (if the plaintiff's evidence was to be believed) a car was running from fifteen to twenty miles an hour. This boy, while crossing this thoroughfare, walked at a "pretty lively" gait, or trotted "at a fair little jog" into the forward fender of the defendant's car. At the time he was behind the other boy, who was slightly older. This made out a case for the jury. See, in this connection, Wright v. Malden & Melrose R. R., 4 Allen, 283; Munn v. Reed, 4 Allen, 431; Callahan v. Bean, 9 Allen, 401; Lynch v. Smith, 104 Mass. 52, 6 Am. Rep. 188; Gibbons v. Williams, 135 Mass. 333; O'Connor v. Boston & Lowell R. R., 135 Mass. 352; McGeary v. Eastern R.

R., 135 Mass. 363; Marsland v. Murray, 148 Mass. 91, 18 N. E. 680, 12 Am. St. Rep. 520; Slattery v. O'Connell, 153 Mass. 94, 26 N. E. 430, 10 L. R. A. 653; Creed v. Kendall, 156 Mass. 291, 31 N. E. 6; Grant v. Fitchburg, 160 Mass. 16, 35 N. E. 84, 39 Am. St. Rep. 449; Powers v. Quincy & Boston St. Ry., 163 Mass. 5, 39 N. E. 345; Hewett v. Taunton St. Ry., 167 Mass. 483, 46 N. E. 106; McNeil v. Boston Ice Co., 173 Mass. 570, 54 N. E. 257; Butler v. New York, New Haven & Hartford R. R., 177 Mass. 191, 58 N. E. 592; Walsh v. Loorem, 180 Mass. 18, 61 N. E. 222, 91 Am. St. Rep. 263; Cotter v. Lynn & Boston R. R., 180 Mass. 145, 61 N. E. 818.

2. We are also of opinion that the question of the parents' negligence was for the jury. The difficulty with the argument of the defendant's counsel here is that he has not told us what more (in his opinion) the parents were as matter of law called upon to do. Since the day was a rainy one, we cannot say as a matter of law, that it was not proper to keep the minor plaintiff in the house. Under the circumsances the lower hall cannot be said to be an improper place for the boys to play in although the front door was not locked. The front door was the common door of all three apartments and so not within the control of the boy's parents. Neither can we say that the mother ought to have left her washing to stand over the boys while playing, and the same is true as to the father, who was to go to work after supper and who was spending what was his night looking after the sick baby two and a half years of age. It is to be noted on the uncontradicted testimony the boy "was always a good boy to mind," and was cautioned by both father and mother not to leave the entry; and also that within two minutes after the noise of their play ceased the father started to look for the boys, on being asked to do so by the mother who had kept herself where she could hear, and where, by going 10 or 12 feet to the rail, could look down and see them while they played in the entry. McGeary v. Eastern R. R., 135 Mass. 363; Marsland v. Murray, 148 Mass. 91, 18 N. E. 680, 12 Am. St. Rep. 520; Slattery v. O'Connell, 153 Mass. 94, 26 N. E. 430, 10 L. R. A. 653; Creed v. Kendall, 156 Mass. 291, 31 N. E. 6; Powers v. Quincy & Boston St. Ry., 163 Mass. 5, 39 N. E. 345; Hewett v. Taunton Street Ry., 167 Mass. 483, 46 N. E. 106; McNeil v. Boston Ice Co., 173 Mass. 570, 54 N. E. 257; Butler v. N. Y., N. H. & H. R. R., 177 Mass. 191, 58 N. E. 592; Walsh v. Loorem, 180 Mass. 18, 61 N. E. 222, 91 Am. St. Rep. 263; Cotter v. Lynn & Boston R. R., 180 Mass. 145, 61 N. E. 818, 91 Am: St. Rep. 267; O'Brien v. Hudner, 182 Mass. 381, 65 N. E. 788; Mellen v. Old Colony St. Ry., 184 Mass. 399, 68 N. E. 679.

Exceptions overruled.

(192 Mass. 46) TEPPER v. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. May 17, 1906.)

- ACTION

1. STREET RAILROADS - OPERATION FOR INJURIES-INSTRUCTIONS-INTERFERENCE WITH UNITED STATES MAIL.

In an action against a street railroad for injuries received in a collision with one of its mail cars, it is not error to charge the jury with reference to the duties and liabilities of the parties growing out of the fact that the car was a mail or postal car and that at the time of the accident United States mail was being carried therein, having in view and keeping within Rev. St. U. S. § 3995 [U. S. Comp. St. 1901, p. 2716], providing that any person who shall knowingly and willfully obstruct or retard the passage of the mail or carrier carrying the same, shall for every such offense be punishable by fine, and Rev. Laws, c. 16, § 143, St. 1895. p. 529, c. 465, § 6, and Rev. Laws, c. 16, $ 149, providing that United States forces or troops or any portion of the militia parading or performing any duty according to law shall have the right of way in any street or highway through which they may pass, provided the carriage of United States mails shall not be interfered with.

2. APPEAL-INSTRUCTIONS-EXCEPTIONS.

In the absence of any specific objection to a charge or of any request for further instructions, an exception to the charge on the ground that certain testimony was ignored therein is unavailing.

Exceptions from Superior Court, Suffolk County; Franklin G. Fessenden, Judge.

Action by Leonard J. Tepper against the Boston Elevated Railway Company. Verdict in favor of defendant, and plaintiff brings exceptions. Exceptions overruled.

Chas. W. Bartlett, Elbridge R. Anderson, and Arthur T. Smith, for plaintiff. M. F. Dickinson and Walter B. Farr, for defendant.

SHELDON, J. The only question raised in this case is upon the plaintiff's exception to the instructions given to the jury with reference to the conceded fact that the car which collided with the plaintiff's team was a mail or postal car engaged in carrying United States mail. At the close of the evidence the defendant asked the judge to rule in substance that the plaintiff had no right to attempt to pass in front of this car. The court declined to give this ruling, but did instruct the jury, among other things, that in order to determine the question of the plaintiff's care and the motorman's negligence, they must get at the circumstances of the case, and added the particular statements which are set out in the bill of exceptions. It is not denied that on the evidence the usual issues of due care and negligence were for the jury.

The plaintiff contends that the instructions given practically amounted to saying that the United States mail cars, so far as their operation is concerned, have some peculiar rights in the streets, and that a less degree of care may be exercised in running them than in running other cars on the street. But no such statement as this is found in the charge, and we do not think that the jury

could have so understood it. The statement that no person could interfere with or obstruct or hinder the passage of the mail, that it would be a penal offense under the laws of the United States for any one knowingly to do so, was not in itself incorrect. United States v. Thomas (D. C.) 55 Fed. 380. It is provided by statute that "any person who shall knowingly and willfully obstruct or retard the passage of the mail or any carriage, horse, driver or carrier carrying the same, shall for every such offense be punishable by a fine." Rev. St. U. S. § 3995, [U. S. Comp. St. 1901, p. 2716]. The plaintiff objects that the statute applies only to persons who knowingly and willfully obstruct or retard the passage of the mail or its carrier, that is, to those who know that the acts performed will have that effect and perform them with the intention that such shall be their operation (United States v. Kirby, 7 Wall. 482, 487, 19 L. Ed. 278), and argues that this part of the charge was inapplicable to the case because the plaintiff testified without contradiction that he did not know that this was a mail car. But by using the word "knowingly" the judge added the very qualification on which the plaintiff now insists; and in view of the plaintiff's testimony that he saw the car while at a distance of 140 feet from him and before he turned to cross the defendant's track, the jury might have believed, in spite of his own testimony to the contrary, that he knew this to be a mail car.

The illustration in the charge as to the comparative rights of the carriers of mail and of United States forces and troops in passing through the streets did not go further than the provisions of our statute. "United States forces or troops, or any portion of the militia parading or performing any duty according to law, shall have the right of way in any street or or highway through which they may pass, provided the carriage of the United States mails, the legitimate functions of the police, and the progress and operations of fire engines and fire departments shall not be interfered with thereby." Rev. Laws, c. 16, § 143; St. 1895, p. 529, c. 465, § 6; Rev. Laws, c. 16, § 149. Moreover, this was given simply as an illustration, a circumstance which might throw some little light upon the matter under consideration. And the judge finally left, in unmistakable language, the whole conduct of both the plaintiff and the motorman to the jury, for them to determine as to the negligence or due care of each.

Taking all the language of the judge into consideration, we do not think that it could have misled the jury, as the plaintiff contends, into believing that the motorman had the right to run his car through the streets in a different manner from any other car, or without regard for the safety of the people upon the streets. The effect could not have been greater than to call the attention of

the jury to the statute, and to instruct them that both the plaintiff and the motorman were bound to act, and that each of them had a right to expect the other to act, with regard to its provisions. If the plaintiff was apprehensive that his testimony that he did not know this to be a mail car had been overlooked, he should have called the attention of the judge to this matter. In the absence of any specific objection to the charge or of any request for further instructions, we are of opinion that the present exception cannot be sustained. Dixon v. New England Railroad, 179 Mass. 242, 249, 60 N. E. 581; McKee v. Tourtellotte, 167 Mass. 69, 44 N. E. 1071, 48 L. R. A. 542. Exceptions overruled.

(192 Mass. 53)

MEHAN et et ux. v. LOWELL ELECTRIC LIGHT CORP.

(Supreme Judicial Court of Massachusetts. Middlesex. May 17, 1906.)

1. MASTER AND SERVANT-INJURIES TO SERVANT-ACTION--QUESTION FOR JURY.

In an action for the death of an oiler in an electric light plant, held a question for the jury whether there was such an emergency in the operation of the plant as required decedent's presence at the place where he received a fatal electric shock.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 1130.] 2. SAME-NEGLIGENCE OF MASTER-EVIDENCE -SUFFICIENCY.

In an action for the death of an oiler employed in an electric light plant, evidence held sufficient to warrant a finding that defendant was negligent in respect to the method emiployed in grounding the iron work of a switchboard.

3. SAME--CAUSE OF DEATH.

In an action for the death of an oiler employed in an electric light plant, evidence held sufficient to warrant a finding that the death was caused by defendant's negligence in improperly grounding a switchboard. 4. DEATH-RIGHT OF ACTION-STATUTES.

Partial dependence is sufficient under Rev. Laws, c. 106, § 73, giving an action for wrongful death to those dependent on decedent for support.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Death, §§ 35-46.]

5. SAME-EVIDENCE-DAMAGES-SUFFICIENCY.

In an action for the death of a servant, the evidence held to justify a finding_that_the parents of decedent were partially dependent upon him.

Exceptions from Superior Court, Middlesex County; Chas. U. Bell, Judge.

Action by one Mehan and wife against the Lowell Electric Light Corporation. Judgment in favor of plaintiffs, and defendant brings exceptions. Exceptions overruled.

John L. & Wm. A. Hogan, for plaintiffs. Wm. H. Bent, for defendant.

LORING, J. 1. We are of opinion that the seventh and tenth rulings asked for were rightly refused.

The defendant's first contention in support of these rulings is that there was no evidence 78 N.E.-25

showing due care on Mehan's part even if he had a right to be where he was, and the case comes within such cases as Cox v. South Shore R. R., 182 Mass. 497, 65 N. E. 823, and Clare v. New York & New England R. R., 167 Mass. 39, 40, 44 N. E. 1054. But it is to be noted that the iron pillar from which Mehan received the fatal shock was but three inches from the engine room floor on which Mehan was standing at the time, and while it is true that the evidence did not warrant a finding that the shock was received before Livesey had passed through the opening made by pushing back the upper bar, it did warrant the finding that it was received within a few seconds after. The jury were warranted in finding that Mehan and Armstrong helped Livesey in pushing the bar through the socket on the wooden post, that Livesey rushed through the opening so made, with his sand pail, to the regulator in question, some 20 feet from the bar, and was in the act of throwing the sand on this regulator when Mehan received his shock. If the emergency justified and required Mehan to be where he was, the evidence in our opinion warranted a finding that Mehan was in the exercise of due care.

And we are of opinion that the emergency did justify and require Mehan to be where he was. The emergency in question was described by Mehan's superior, the engineer, as follows: "A report like thunder, only it was not like thunder, and a flash like a flash of lightning. The third regulator from me was smoking, and a little flame coming out of one corner was on the chain cable leading up to the side; it looked like two tapers; the tape insulation was burning." This happened at 6:05 in the morning, when there were but three persons in the building, the switchboard tender, Livesey, the engineer, Armstrong, and the oiler, Mehan, whose death is the subject of this action. Mehan immediately rushed to the bar, which had to be unscrewed and pushed through the socket before Livesey could get into the electrical inclosure on the floor in question, and Armstrong, after seeing to the engine which was then running, followed. The evidence warranted the finding that all three took part in getting the bar out of Livesey's way. In our opinion the question whether that emergency justified and required Mehan to give the assistance which he gave was for the jury, although he was employed to oil the engines. See Somerset & Cambria R. R. v. Galbraith, 109 Pa. 32, 1 Atl. 371; Terre Haute R. R. v. Fowler, 154 Ind. 682, 56 N. E. 228, 48 L. R. A. 531; Pullman Car Co. v. Laack, 143 Ill. 242, 32 N. E. 285, 18 L. R. A. 215; Sears v. Central R. R. & Banking Co., 53 Ga. 630.

This conclusion is fortified by the testimony of Mehan's immediate superior, Armstrong the engineer, that "in case of fire as I understood it his duty was to assist in putting it out if possible," and by the fact

testified to by Livesey that there was a fire four or five weeks before the accident here in question, which he (Livesey) assisted in putting out, and "Armstrong and Mehan were there assisting."

The defendant's last contention is that no reason is disclosed why Mehan took hold of the post, if he did, and no invitation for him to do so. The post was but three inches away from the engine floor where the emergency called Mehan, and he might unintentionally have come in contact with it.

2. We are of opinion that the jury were warranted in finding that the defendant was negligent, and that the accident was caused by its negligence. We assume that the defendant was not liable for grounding the iron framework of the switchboard gallery by carrying from it a copper wire to a metal plate buried in the ground, in place of connecting it with the water pipes, because the former method was in common use although not so good a method as the latter. But the jury were warranted in finding that the company knew from the shocks received on the day before the accident by the masons then at work in the basement, that the system in use was not in fact carrying off the electricity which found its way into the framework, and that it was negligent in continuing under these circumstances without giving notice of the danger, and that that negligence caused Mehan's death because the current in the iron post took the line of least resistance through his body and the engine room floor to the water pipes. For these reasons the first ruling was in our opinion rightly refused.

3. The eleventh ruling asked for was given in substance. The presiding judge told the jury that: "The law does not say that because an accident happens therefore the employer was liable, that would be reasonable if he was an insurance company, but it is not so. But it assumes an employer to discharge his duty reasonably, with reasonable care, to see the machinery is in proper condition, as would be safe from injury or death; would discharge that duty just as you or I in his place would do." The word "assumes" would seem to be a misprint. However that may be, in answer to a question from the defendant at the close of the charge as to whether he gave this ruling the presiding judge added: "I have said to the jury, without your limitations, as I understand it, that the mere occurrence of an accident would not be evidence of negligence. That is more general than the request, and therefore carries it."

4. The other contention made by the defendant is that the evidence did not warrant a finding that the father and mother of the deceased was dependent on him for support within Rev. Laws, c. 106, § 73.

It is settled that partial dependence is enough. Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386, 54 L. R. A. 934, 79 Am. St.

Rep. 309; Welch v. N. Y., N. H. & H. R. R., 176 Mass. 393, 57 N. E. 668; Boyle v. Columbian Fire Proofing Co., 182 Mass. 93, 64 N. E. 726. The case relied on by the defendant (Hodnett v. Boston & Albany R. R., 156 Mass. 86, 30 N. E. 224) was a case where it did not appear that the plaintiff did not support herself by her own wages. See Mulhall v. Fallon, 176 Mass. 266, 267, 57 N. E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309.

The evidence warranted a finding that at the time of the son's death the family consisted of father, mother, two daughters and one son in addition to the son whose death is the subject of this action. The son whose death is here in question was killed on December 11, 1903. The father and mother had no property and no money in bank. The father was 70 and the wife 60 years old. The father seems to have had no regular work; he testified that he "worked for Mr. Rose from May until November and received 1 cents an hour, averaged nine hours a day, averaged five days a week. In the winter I got $10 a month for Currier's furnace and $3.50 a week for Rose's furnace." The father also testified that his "wife is not an invalid; she isn't very well now"; and she testified that she "had suffered for a long time from neuralgia; sometimes could not perform household duties." Jennie, the younger daughter, had not worked for two years, but had stayed at home and helped her mother in conducting the household; she "did the ordering." Joseph had entered the Tufts Medical School in October, 1902, and since then had lived at home and had his breakfast and supper there while the school was in session, and apparently all his meals during vacation. He worked during the four months' summer holiday. During this time he had received nothing from the family except his lodging and the meals mentioned above, and had contributed nothing to its support. The daughter Mary worked "in the Hamilton," and received from $7 to $8 a week. The son who was killed received $12 a week, which he handed to his mother. The mother testified that since the accident "My family remains the same now with the absence of the one who is killed. We live in the same house, pay the same rent, live as comfortably as we can; we have plenty to eat and drink and wear, and a house to live in." The surviving brother testified that "Mary has had a slight increase in pay since my brother was killed." The father "kept some pocket money, $2 a week." Subject to this the earnings of the three wage earners, aggregating about $24, were given to the mother for the support of the family of six and the personal expenses of the five, not including Joseph, who was in the Medical School and supported himself.

To find for the plaintiff the jury had to find that apart from the board and lodging of Joseph who was in the Medical School, the parents were under all the circumstances

dependent, in part at least, upon the son who was killed. There was no reason why the expense of Joseph's board and lodging should be charged wholly against the son rather than against the daughter who worked. We do not think that his presence in the family was fatal. Neither do we think the fact fatal that the family had since lived in the same house. It appeared that since then the daughter had had a slight increase of pay. But apart from that, having in mind the age and the lack of permanent employment of the father and the facts that for the short time which had elapsed since the death of the son the clothing probably had not had to be renewed but would have to be renewed in the future, and that for the remaining family (except Joseph) all that there was left were the earnings of the father and the one daughter, we are of opinion that the jury were warranted in finding that the parents were dependent, at least in part, on the son who was killed; and that for these reasons the first ruling asked for was rightly refused. We do not find in the bill of exceptions the seventeenth ruling referred to in the defendant's brief.

Exceptions overruled.

(191 Mass. 579)

CHANDLER et al. v. BAKER. (Supreme Judicial Court of Massachusetts. Norfolk. May 17, 1906.)

1. EXECUTORS AND ADMINISTRATORS-ACTION ON CLAIM-SERVICES RENDERED DECEDENT— AMOUNT OF RECOVERY.

Where, in an action against an administrator for services rendered to decedent, there was no evidence that the amount to be paid for the services was agreed upon, a requested ruling that, if the plaintiffs rendered services without any agreement, they were entitled to recover only such sum as the services were actually worth, was not objectionable as including both express and implied agreement, thus defeating a recovery entirely, but referred only to the absence of any express agreement, and should have been given.

2. SAME-VALUATION BY PARTIES.

In an action against an administrator for services rendered to deceased without any agreement as to price, the court may, upon the question and value of the services, properly consider the valuation placed upon them by the parties.

Exceptions from Superior Court, Norfolk County; Danl. W. Bond, Judge.

Action by Susan E. Chandler and others against William L. Baker, as administrator of the estate of Albert D. Bird, deceased. There was a finding for plaintiffs, and defendant brings exceptions. Exceptions sustained.

Fred H. Williams and Frank M. Copeland, for plaintiffs. Gibbs & Pratt, for defendant.

HAMMOND, J. This is an action of contract tried before a justice of the superior court sitting without a jury. The ad damnum of the writ was originally $50,000, but after the entry of the action it was changed by permission of the court, on motion of the

plaintiffs, first to $100.000, and afterwards to $200,000. The original declaration was in three counts, of which the first was on an account annexed for services rendered to Albert S. Bird, the defendant's intestate, from October 1, 1897, to February 25, 1903; the second was on quantum meruit for labor performed and services rendered to the defendant's intestate for the same time; and the third alleges that in September, 1897, the said Bird entered into an agreement with the plaintiffs by which, in consideration that the plaintiffs would give up their homes and their occupation and enter his family and care for his household and for himself during his lifetime, he would pay to the plaintiffs such sums as their services were worth; that in pursuance of said agreement the plaintiffs did give up their homes and their occupations and entered into the family of the said Bird on or about October 1, 1897, and devoted their whole time, energy and strength to the care of the said Bird and his household until his death, which occurred on February 25, 1901. In each count the sum sought to be recovered was named as $100,000. The declaration was subsequently amended by changing the amount sought to be recovered in each count from $100,000 to $200,000; and by the addition of a fourth count in which it was alleged that in September, 1897, the said Bird entered into an agreement with the plaintiffs by which in consideration that the plaintiffs would give up their homes and occupations and enter his family and care for his household and for himself during his lifetime he would pay to the plaintiffs a sum not less than $200,000, for their services; and the plaintiffs, in consideration of said promise, did give up their homes and occupations and enter his family and care for his household and for himself during his lifetime, and thereby became entitled to receive from the defendant as administrator the sum of $200,000. The defendant's answer as amended admitted that the defendant was the administrator, contained a general denial, and pleaded payment and the statute of frauds.

At the conclusion of the evidence the defendant made seven requests for rulings, all of which, except the third, were refused; and there was a finding for the plaintiffs for the sum of $102,169.50. The case is before us upon exceptions taken by the defendant to these refusals.

Many of the facts seem to be uncontroverted. In September, 1897, Mr. Bird, then about 57 years of age and apparently not in robust health and not actively engaged in business, was living where he had been living for several years, in good style, in a commodious house in Brookline. His wife had died a year before, and there was no one except servants to look after the house, and the cook, whom he had had in his employ for some years, was getting discontented and had threatened to leave "unless some one who