have an opinion as a builder on that question. The only thing excluded was the offer to show in detail the nature of the experiments.

As has been frequently said, the question whether evidence of experiments shall be admitted must be largely left to the discretion of the trial court, and that discretion will not be interfered with unless in its exercise the trial court clearly appears to be wrong. The experiments were made nearly, if not quite, eight years after the occurrences to which Burton and Palmer testified. The conditions testified to by Burton were evidently somewhat peculiar. The judge may well have thought that the trial of the question whether the conditions were in all respects the same, what changes if any had taken place in the adjustment of the heaters, what was the relative situation of the persons making the tests, whether the surrounding noises, if any, were the same, would lead to an extended inquiry upon collateral matters which would be of no practical assistance to the jury, and that the more direct and logical course was to explain to the jury the exact physical situation at the time of the alleged occurrences and to leave it to their common knowledge whether such a state of things the witnesses for the plaintiff were to be believed. While these remarks apply with greater force to the evidence of the witness Burton, they are applicable, though in a less degree, to the evidence of Palmer. We cannot say as matter of law that the exclusion of the evidence was clearly wrong. See Commonwealth v. Tucker, 189 Mass. 457, 477, 76 N. E. 127.

2. The evidence of Burton that she on one occasion heard some one come out of the plaintiff's tenement and go down stairs to the Chestnut street entrance as the plaintiff was coming up at the Lewis street entrance, just after she had heard the defendant's voice in the plaintiff's tenement, was rightly admitted. Its weight was for the jury.

3. And the same may be said of the testimony of the plaintiff's mother that upon one occasion she found the door of the plaintiff's tenement locked with the key on the inside, and "rattled the door very loudly," and heard voices inside, and that one was the voice of a man. This testimony standing by itself may have been of little, if any, weight, but the jury might properly consider it in connection with the other testimony. Exceptions overruled.

was a student at a certain school was not a passenger.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carrier, § 975.]

Report from Superior Court, Middlesex County; Loranas E. Hitchcock, Judge.

Action by one Fitzmaurice against the New York, New Haven and Hartford Railroad. Verdict for defendant, and the case reported to the Supreme Judicial Court. Judgment on the verdict.

J. J. Shaughnessy, for plaintiff. John L. Hall and Arthur J. Young, for defendant.

SHELDON, J. The plaintiff, while riding upon a train of the defendant, was injured by reason of a collision; and no question is made but that she would have been entitled to a verdict in her favor if she had the rights of a passenger. She was a minor. She was riding upon a three months season ticket which was good only for students under 18 years of age. She had obtained this ticket by presenting to the defendant's ticket agent a certificate purporting to be signed by her father that she was under 18 years of age and was a pupil in the Hollander Art School, Boston, and agreeing that she would not use the ticket otherwise than in going to and from the school, and also presenting a certificate purporting to be signed by "J. F. Miner, Principal, Hollander Art School, Boylston St., Boston, Mass.," that she was a pupil in his school and as he fully believed intended to remain so for the next three months. She was at this time over 18 years of age, as she testified, lived in Marlboro, and was employed in Hollander's dry goods store in Boston. The regular price for a season ticket was $32; the reduced rate for students under 18 years of age, at which the plaintiff procured it, was $16. She had been riding upon this ticket nearly every day except Sunday for over a month, and the coupons had been received by the conductor. Upon the face of the ticket were the words, "Good only for a person under 18 years of age." The jury having found the amount of the plaintiff's damages if she was entitled to recover, the judge ordered a verdict for the defendant, and reported the case to this court, with the stipulation that if she is enitled to recover, judgment is to be entered in her favor for that amount; otherwise, there is to be judgment on the verdict.

The defendant had the right to establish a reduced rate for students under a fixed age. Rev. Laws, c. 111, § 228. A statute requiring similar action by street railway companies was sustained by this court in a recent case. Com. v. Interstate Consolidated St. Ry., 187 Mass. 436, 73 N. E. 530. The plaintiff knew that she did not come within the class to which this offer of a reduced rate was made, and obtained her ticket by presenting certificates of facts which she knew

to be false. She thus obtained by false representations a ticket to which she knew that she was not entitled. Whatever rights she had to be regarded as a passenger on the defendant's train she had acquired solely by the fraud which she had practiced upon the defendant. She had no right to profit by her fraud; she had no right to rely upon the consent of the railway company to her entering its train as a passenger, when she had obtained that consent merely by gross misrepresentations. Accordingly she was not lawfully upon the defendant's train; she was in no better position that that of a mere trespasser. This principle has been affirmed in other jurisdictions. Thus it has been held that a person traveling over a railroad on a free pass or a mileage ticket which had been issued to another by name and was not transferable, was barred by his fraudulent conduct from recovering for a personal injury unless it was due to negligence so gross as to show a willful injury. Toledo, Wabash & Western Ry. v. Beggs, 85 Ill. 80, 28 Am. Rep. 613. Way v. Chicago, Rock Island & Pacific Ry., 64 Iowa, 48, 19 N. W. 828, 52 Am. Rep. 431. If the plaintiff had fraudulently evaded the payment of any fare, she certainly would not have become a passenger, and the defendant's utmost duty to her while she was upon its train would have been to abstain from doing her any willful or reckless injury. Condran v. Chicago, Milwaukee & St. Paul Ry., 67 Fed. 522, 14 C. C. A. 506, 28 L. R. A. 749; Toledo, Wabash & Western Ry. v. Brooks, 81 Ill. 245; Chicago, Burlington & Quincy R. R. v. Mehlsack, 131 Ill. 61, 22 N. E. 812, 19 Am. St. Rep. 17. But such a case cannot be distinguished in principle from the case at bar, in which the plaintiff obtained her ticket at a reduced price by successfully practicing a fraud. The only relation which existed between the plaintiff and defendant was induced by her fraud; and, as was said by the court in Way v. Chicago, Rock Island & Pacific Ry., ubi supra, she cannot be allowed to set up that relation against the defendant as a basis of recovery. See, also, to the same effect Godfrey v. Ohio & Mississippi Ry., 116 Ind. 30, 18 N. E. 61; McVeety v. St. Paul, Minneapolis & Manitoba Ry., 45 Minn. 268, 47 N. W. 809, 11 L. R. A. 174, 22 Am. St. Rep. 728; McNeill v. Durham R. R. (N. C.) 44 S. E. 34, 67 L. R. A. 227.

Nor is the plaintiff helped by the fact that the defendant's conductors had accepted the coupons of her ticket. This simply showed that she had succeeded in carrying her scheme to completion. There had been a similar acceptance by the conductor in Way v. Chicage, Rock Island & Pacific Ry., and Toledo, Wabash, & Western Ry. v. Beggs, ubi supra. If the defendant's conductors did not know the real facts, their acceptance of her coupons could have no effect; if they knew the facts and acquiesced in the plaintiff's wrongful purpose, this conduct could give

her no additional rights. McVeety v. St. Paul, Minneapolis & Manitoba Ry., and Condran v. Chicago, Milwaukee & St. Paul Ry., ubi supra.

The cases relied on by the plaintiff do not support her contention. In Galveston, Harrisburg & San Antonio Ry. v. Snead, 4 Tex. Civ. App. 31, 23 S. W. 277, Ohio & Mississippi Ry. v. Muhling, 30 Ill. 9, 81 Am. Dec. 336, and Austin v. Great Western Ry., L. R. 2 Q. B. 442, no question of fraud was involved. The same is true of Foulkes v. Metropolitan District Ry., 4 C. P. D. 267, and 5 Id. 157. In Doran v. East River Ferry, 3 Lans. (N. Y.) 105, the plaintiff was allowed to recover on the ground that the defendant's servants had negligently failed to demand her fare, and that her injury was due to gross negligence. We have found no decision which would support a recovery under circumstances like those before us. The plaintiff's counsel very properly has not claimed that there was evidence of any such gross or wanton negligence as to entitle her to recover in spite of her rights being only those of a trespasser. Banks v. Braman, 188 Mass. 367, 74 N. E. 594.

According to the terms of the report there must be

Judgment on the verdict.

(192 Mass. 206) MERRIMAC CHEMICAL CO. v. AMERICAN TOOL & MACHINE CO.

AMERICAN TOOL & MACHINE CO. v. MERRIMAC CHEMICAL CO. (Supreme Judicial Court of Massachusetts. Suffolk. June 19, 1906.)

NEGLIGENCE-MACHINERY-REPRESENTATIONS

-RIGHT TO RELY.

Plaintiff ordered a machine from defendant, requesting him to send a blue print of the machine, but not telling him for what purpose the print was desired. The print showed a driving pulley 24 inches in diameter, having a speed of 275 revolutions per minute, and the speed of the basket was marked at 1,320 revolutions per minute. On such figures plaintiff's mill architect planned the shafting. When the machine was set the driving pulley furnished was only 15 inches in diameter, which increased the revolutions of the basket to 2,000 or 2,200 per minute. The machine was set up by plaintiff, whose chief engineer noticed the difference in the pulley, which also was disclosed by the bill for the machine. Nothing was said as to the size of the pulley when the machine was ordered, and defendant's evidence was uncontradicted that no particular size of driving pulley formed a part of the machines. After the machine had been in operation for some time the excessive speed caused a bursting of the basket and injury to plaintiff's employé. Held, that plaintiff was not justified in relying on the representation of the blue print as to the size of the pulley and was negligent in putting up its shafting so as to drive the basket at a faster rate than that designated.

Exceptions from Superior Court, Suffolk County; John A. Aiken, Judge.

Actions by the Merrimac Chemical Company against the American Tool & Machine Company, and by the American Tool &

Machine Company against the Merrimac Chemical Company. From a ruling in favor of defendant in the first case, and in favor of plaintiff in the second case, the defeated party brings exceptions. Overruled.

John & Jas. A. Lowell, for Merrimac Chemical Co. Geo. L. Mayberry and Wm. F. Garcelon, for American Tool & Machine Co.

MORTON, J. These two actions were tried together. The court ruled in favor of the defendant in the first, and for the plaintiff in the second. The second is defended on the same grounds in substance on which the first is brought, and it follows that if the ruling for the defendant in the first action was right, then that in the second was also. The first is an action to recover the amount paid by the plaintiff after notice to the defendant to settle a claim made upon it by the administrator of one Murphy who died in consequence of injuries received from the bursting of a basket so-called while at work on a machine in the defendant's employ. The machine was furnished to the Chemical Company which we shall speak of as the plaintiff by the Tool & Machine Company which we shall call the defendant. It was ordered by the plaintiff's superintendent. There was delay in the delivery and the superintendent "after waiting quite a long time" called up the defendant on the telephone and asked them to send him a blue print of the machine which they did. The size of the driving pulley was given on the blue print as 24 inches in diameter. The number of revolutions of the countershaft on which the driving pulley is mounted was given at 275 R. P. M. meaning 275 revolutions per minute. The speed of the basket is marked at 1,320 R. P. M. meaning 1,320 revolutions per minute. The blue print was turned over by the superintendent to the mill architect, who "did the work of calculating the size of the pulleys and the revolutions of the different shafts" "for use in laying out his shafting plan," and he planned the shafting for a pulley 24 inches in diameter. The defendant did not know the use which was to be made or was made of the blue print. The machine when sent instead of having a driving pulley 24 inches in diameter had one of 15, the effect of which was, with the shafts and pulleys as planned by the mill architect, to increase the revolutions of the basket from 1,320 per minute to 2,000 or 2,200. The actual work of setting up the machine was done for the plaintiff by another concern, J. T. Freeman & Co., and one Godfrey was employed by them to do the work. The plaintiff's chief engineer had a general supervision over the work. There was testimony, which was uncontradicted as to the chief engineer, that both he and Godfrey noticed when the machine was set up that the size of the driving pulley was not the same is shown on the blue print, and the

chief engineer testified "that he knew that it would make the machine go much faster than a 24-inch pulley," as it is obvious that it would with the same shafting and pulleys. There was uncontradicted testimony on the part of the defendant from its manager that the machines were manufactured and sold in the general market to be set up and connected in the factory by the purchaser; that no particular size of driving pulley formed a part of the machines but a driving pulley of some size was usually sent with each machine; that they furnished a pulley according to the speed of the main shaft if that was given them; that in this case no particular size of driving pulley was asked for and the defendant knew nothing about the speed of plaintiff's engine or shaft, or of the pulley on the shaft to which the machine was to be belted and had nothing to do with setting it up. He further testified that the blue print was from their office and must have been furnished to some one from their office; that they furnished blue prints to any one inquiring about the machines and that he did not know of the blue prints being furnished to the plaintiff till after the accident.

It appeared and was uncontradicted that a bill of the machine and the articles shipped with it was sent by the defendant to the plaintiff about the time that the machine was sent which was apparently some time after the plaintiff had received the blue print, and that the pulley was described in this bill as a 15-inch pulley. It also appeared and was likewise uncontradicted that the machine was in the defendant's possession and had been for upwards of two months at the time that the mill architect began to plan the shafting and pulleys in connection with it.

The plaintiff does not contend that any thing was said about the size of the driving pulley when the order was originally given. It contends that the blue print amounted to an implied representation or warranty, that the machine would have a driving pulley 24 inches in diameter on which the mill architect was justified in relying in planning in the connecting shafts and pulleys, and that the defendant is liable for any injuries that resulted in consequence of the pulley being 15 inches in diameter instead of 24.

We greatly doubt whether the blue print constituted an implied representation or warranty of the size of the pulley. There is nothing to show that the defendant knew what the blue print was wanted for, or that it did anything more than send it as requested. But assuming that the pictorial representation of a driving pulley 24 inches in diameter contained in the blue print constituted, under the circumstances an implied undertaking on the part of the defendant that the driving pulley would be of that size, it does not follow that the defendant is liable. In order to render the defendant liable the plaintiff must not only have relied upon the representation but the circumstances must

have been such as to warrant it in so doing and to exonerate it from negligence on its part. We do not think that the evidence warranted a finding that the plaintiff was justified in relying on the representation or was free from negligence in so doing. The machine was put together and set up in the plaintiff's works by its servants and employés. There was uncontradicted evidence that they knew that the size of the pulley was not as represented on the blue print but was smaller and that the result would be to make the machine go much faster. There was also uncontradicted evidence that the bill of the machine showed that the pulley was a 15-inch pulley and that the machine had been in the possession of the plaintiff upwards of two months before the plaintiff's architect began to plan the shafting and pulleys required to convey power to it. It also appeared as already observed that the speed of the basket as well as of the pulley was marked on the blue print and that the speed of the machine depended on the various pulleys between it and the engine.

Under such circumstances we think that the plaintiff was not justified in relying on the representation assuming that there was one and that there was negligence on its part in putting in shafting and pulleys that would drive the basket at a faster rate than that designated. The case of Boston Woven Hose, etc., Co. v. Kendall, 178 Mass. 232, 59 N. E. 657, 51 L. R. A. 781, 86 Am. St. Rep. 478, relied on by the plaintiff differs materially from this. In that case the machine was sold to stand a working pressure of one hundred pounds to the square inch which it did not do in consequence of a defect in the construction which should have been discovered and remedied by the manufacturer. The plaintiff did not know and had no reason to know as between it and the defendant that the machine would not stand the pressure which it was warranted to stand and

the court held that it was justified in relying on the representations of the defendant. The result is that the exceptions must be overruled in both cases.

So ordered.

(192 Mass. 293)

LENNON v. GOODRICH. (Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1906.)

1. MASTER AND SERVANT-INJURIES TO SERVANT-OPERATION OF MACHINE-WARNINGNEGLIGENCE.

Plaintiff, a boy of 17, was injured while cleaning an endless bicycle chain on a brush wheel in defendant's factory. The machine was simple, consisting of a pulley at one end of a shaft, and the brush on the other, sustained by an iron base, on which machine plaintiff had worked several months. He had previously cleaned or polished chains, the ends of which, however, had not been joined and were not so apt to become entangled with the shafting. Held, that defendant was not guilty of negligence in failing

to instruct plaintiff or warn him of the danger of the work that he was then engaged in.

[Ed. Note.-For cases in point, see vol. 34. Cent. Dig. Master and Servant, § 313.] 2. SAME-OBVIOUS DANGER-ASSUMED RISK. The danger that the chain, being flexible, might become caught and wound around the brush and shaft, was an obvious one which plaintiff assumed.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 610-624.]

Report from Superior Court, Suffolk County; Chas. U. Bell, Judge.

Action by Edward Lennon against Paul N. Goodrich. A verdict was rendered in favor of plaintiff, and the court reported the case to the Supreme Judicial Court. Judgment for defendant.

Thos. H. Dowd, for plaintiff. Matthews, Thompson & Spring, Romney Spring, and Harry H. Atwood, for defendant.

MORTON, J. This is an action of tort to recover damages for personal injuries sustained by the plaintiff while in the defendant's employ and engaged in cleaning a bicycle chain on a brushing machine. There was a verdict for the plaintiff and the case is here on report. If the ruling which the defendant requested, that the court should direct a verdict for the defendant and which the court refused, should have been given, then judgment is to be entered for the defendant. If this request was rightly refused but there was other error prejudicial to the defendant then a new trial is to be granted, otherwise judgment is to be entered on the verdict.

We think that the ruling was wrong and that there should be judgment for the defendant. The plaintiff was a boy of seventeen and upwards at the time of the accident, and for aught that appears was of average intelligence. He had worked on the machine several months and before that has been employed with an interval between the two employments in the same room sweeping floors, doing chores and setting up emery wheels. The only ground on which he bases his right to recover is that the defendant or its foreman was negligent in not warning or instructing him as to the danger of the work that he was doing when injured. What he was engaged in doing was as already observed cleaning a bicycle chain. He had cleaned or polished such chains before. The only difference between those, and the one he was cleaning at the time of the accident, was that the ends of those were loose and that the ends of this were joined together, making a circular chain, and rendering it, as he contended, more liable to catch on the brush and cause injury to the workman. The machine itself was as simple as it well could be in construction. It consisted of "a large iron base coming up from the floor" with two arms through which a shaft ran on one end of which was a pulley and on the other end

of which was the brush. The plaintiff knew that the brush revolved very rapidly though not how rapidly, and had cleaned and polished a great variety of articles upon it during the time that he had been at work upon it. It is apparent from his testimony that for all practical purposes he had become entirely familiar with the machine, even though he did not know the precise number of revolutions which the brush made per minute. Whether he received any instruction or not when first set to work on the machine was in dispute. But from the experience which he had had, we think that the defendant was justified in assuming that he needed no further instruction when the circular bicycle chain was given him to clean and polish, and was not negligent in failing to warn or instruct him. The risk that the chain, being flexible, might get caught and wound round the brush and shaft was, we think, an obvious one which he must be held to have assumed. It is common knowledge that clothes or any other flexible material or article that comes in contact with a revolving pulley or shaft is liable to get caught and wound around it. We see no evidence of negligence on the part of the defendant or his superintendent or foreman. See Tiffaney v. Hathaway et al., 182 Mass. 431, 65 N. E 811; Smith v. Beaudry, 175 Mass. 286, 56 N. E. 596; Robinska v. Lyman Mills, 174 Mass. 432, 54 N. E. 873, 75 Am. St. Rep. 364; Kenney v. Hingham, 168 Mass. 278, 47 N. E. 117; Stuart v. West End St. Ry. Co., 163 Mass. 391, 40 N. E. 180. Pratt v. Prouty, 153 Mass. 333, 26 N. E. 1002; Coullard v. Tecumseh Mills, 151 Mass. 85, 23 N. E. 731; Ciriack v. Merchants' Woolen Co., 146 Mass. 182, 15 N. E. 579, 4 Am. St. Rep. 307. It is not contended that there was any defect in the machine and the plaintiff's case is not put on that ground. The conclusion to which we have come on the main question renders it unnecessary to consider the questions of evidence. Judgment for the defendant.

(192 Mass. 367)

GRAY et al. v. WHITTEMORE et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1906.)

1. PERPETUITIES REMAINDER-VALIDITY.

Where testator's will gave a remainder to the issue of his children upon two alternatives: First, upon the death of his children, respectively, without leaving any surviving husband or wife; and, secondly, upon the death of any surviving husband or the death or remarriage of any surviving widow, though the remainder limited upon the latter event should go only to the issue in existence at that latter time and

be obnoxious to the rule against perpetuities the remainder limited on the former event was valid.

2. SAME-NATURE OF RULE.

An interest is not obnoxious to the rule against perpetuities, if it begins within the prescribed period, although it may extend beyond that limit.

3. SAME-POSTPONEMENT OF ENJOYMENT. Remainders that are so limited as neces

sarily to vest in interest within the period limited by the rule against perpetuities are valid, though actual payment to the beneficiaries is postponed to a later period.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Perpetuities, § 7.]

4. SAME-PARTIAL INVALIDITY.

Where a remainder is given by will upon two alternatives, one offending the rule against perpetuities and the other valid within the rule, either one of which, if it occurs, will exclude the existence of the other, the latter is valid.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Perpetuities, §§ 1, 5.]

5. WILLS-VESTED REMAINDER.

Testator's will directed his trustees on the death of any son to pay the son's share of income to the son's widow during her widowhood, and on the death of any daughter to pay her share of income to her surviving husband for life, and on the death of any child leaving no surviving widow or husband, or the death of any surviving husband, or the death or marriage of any such widow, to pay or transfer a proportional share of the principal sum to the issue, if any, of his deceased son or daughter, and in default of such issue at the time of such decease or marriage to pay or transfer such share to the heirs at law of such deceased son or daughter. Held, that the limitation to the heirs at law of a deceased child vested on the decease of the child, though subject to be postponed in enjoyment until the termination by death or remar riage of the life estate given the husband or wife.

6. SAME-PRESUMPTION IN FAVOR OF VESTING. Where, on a question as to whether remainders are vested, the language of testator is of doubtful import, they will be regarded as vested.

[Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, §§ 1461, 1462.]

7. SAME.

Where limitations are to the direct descendants of testator, it warrants an inference that vested, rather than contingent, remainders were intended.

8. SAME.

Where remainders would be void for remote. ness of contingencies, an inference that vested remainders were intended is warranted.

[Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, § 1461.] 9. SAME.

Testator's will directed his trustees upon the death of any of his sons to pay the son's share of income to his widow during her widowhood, and on the death of any daughter to pay her share of income to her surviving husband for life, and on the death of any child leaving no widow or husband, or the death of any surviving husband, or the death or remarriage of any such widow, to pay a proportionate share of the principal sum to the issue of the deceased's son or daughter. Held, that the rights of the issue vested in interest on the death of the children, subject only to the life estate of any surviving husband or wife.

10. DoWER-INTERESTS SUBJECT-VESTED RE