The defendant's contentions are two: (1) That there is nothing to show that what injured the plaintiff's eye came from the contact-shoe, and (2) that there was nothing to warrant the jury in finding that the defendant was negligent in failing to apply to the railroad commissioners for approval of the pan; the still further contention being included in this last that the effect of the answer of the jury to the second question is to exclude from consideration any evidence of negligence in the selection of the contactshoe that was used.

1. We think that there was evidence warranting the finding by the jury that the particle which entered the plaintiff's eye came from the operation of a contact-shoe. In the question to the jury it was assumed and without objection so far as appears, that the particle was a piece of metal. This assumption was justified by the evidence. The particle was described as "about a sixteenth of an inch in length and a long, narrow, wedgeshaped and pointed," with the broad end somewhat wider than the edge of a pin." The oculist whom the plaintiff consulted testified that the pupil showed a small scar and circular brown stain which in his opinion were caused by a piece of steel or iron which he thought was rusty. On cross-examination he said that he had never seen a hot cinder leave such a stain. This evidence justified the conclusion that the particle was a piece of metal and not a cinder. The plaintiff's testimony and other testimony in the case tended to show that it came from the elevated railway and the fact that it was a piece of metal increased the probability that it did. He testified that he was going under the westerly side of the structure and heard the noise of a train passing overhead and then the particle got in his eye. He said that he thought that he had crossed the first track and was about to cross the second. Whether he he meant the surface tracks or whether he meant that he had crossed under the first elevated track and was about to cross under the second is not plain and is not material. In either view it is clear that the particle got into his eye just as he was going under the elevated structure and as a train was passing overhead. And there was testimony tending to show that sparks had been frequently seen to fall in the general vicinity of the place of the accident when trains were in ordinary motion and that they sometimes fell in showers and reached the pavement. These circumstances rendered the interence that the particle came from the elevated railway a fair and reasonable one and warranted a finding to that effect. The time and place of the accident, the character of the particle, the fact that a train was passing overhead, and that sparks fell from trains in ordinary motion would lead naturally to the conclusion that the particle came from the railway. Whether it came from the brake

shoe or the contact-shoe or some other por tion of the structure is more difficult to determine. The oculist called by the plaintiff testified that he thought that the scar and stain which he found in the plaintiff's eye were caused by a piece of rusty iron or steel and that while the stain might have been caused by a piece of metal hot enough to produce charred tissue, he found no charred tissue; which would tend to show that the particle came from some other portion of the structure. But the plaintiff testified that the oculist who examined his eye on be half of the defendant and who was not called by the defendant told him that there was a burn on the eye, which would tend to show that the particle came from the brake-shoe or the contact-shoe from both of which heated particles were thrown off though those from the contact-shoe were hotter than those from the brake-shoe and would therefore be more liable to cause a burn and scar than those from the brake-shoe. The direction in which the train was going was also important. There was evidence that it was going north, and if so, owing to the positions of the stations, there would have been no occasion to apply the brakes. The plaintiff could not tell which way it was going. But a companion who was with him testified that it was going north; and though not willing to swear absolutely to it said that there was no doubt in his mind that it was going north. If the jury believed that the train was going north, then it would seem almost to follow that the particle could not have come from the brake-shoe. Moreover there was testimony tending to show that although there had been a good deal of trouble from the sparking of the contact-shoes, there had been no difficulty and no accidents to people underneath by reason of the brake-shoe sparks. Taking all of the circumstances into ac count it was competent for the jury to find, and the evidence fairly warranted them in finding that the particle came from the contact-shoe. The strength and direction of the wind, the exact position of the plaintiff, and the inferences and conclusions to be drawn from these and the other facts in evidence were all for the jury. The plaintiff was not bound to exclude the possibility that the accident might have happened in some other way, but only to satisfy the jury by a fair preponderance of the evidence that it occurred in the manner in which he contended that it did. In McNeil v. Boston Elevated Railway, 187 Mass. 569, 73 N. E. 657, and Wadsworth v. Boston Elevated Railway Co., 182 Mass. 572, 66 N. E. 421, relied on by the defendant, there was nothing to remove the cause of the accident from the domain of conjecture. In this case though no one saw where the particle came from, the combination of circumstances was such as to warrant a finding, as already observed, that it came from the contact-shoe. 2. The defendant further contends, and

this is its principal defense, that the evidence did not warrant a finding that there was any negligence on its part in failing to apply to the railroad commissioners. If this defense fails then it still further contends that there is nothing to show that the sparking could have been prevented by the exercise of ordinary care and diligence, and that the accident was not therefore due to any negligence on its part.

We assume in favor of the defendant that the effect of the answer to the second question is to show that the verdict was rendered on the ground that the defendant was negligent in failing to apply to the railroad commissioners, and that, if such an application was not required, and there is nothing in any view of the case to warrant as matter of law such a finding, then the verdict must be set aside. The answer necessarily shows, we think, that the jury must have found that a pan was needed for the proper protection of pedestrians and others having occasion to use the roadway underneath the elevated structure; otherwise there would have been no occasion for the defendant to apply to the commissioners. Whether the sparking could have been prevented by the use of a different shoe or by different mode of adjustment or both, the jury does not appear to have decided; having been apparently content with the conclusion that injury to pedestrians and others having occasion to use the roadway could be avoided by the use of a pan.

The railroad commissioners approved the plans for the railway as constructed and gave the certificate required before it could be operated, and allowed it to continue as before after investigating the subject of sparking. The defendant contends that the action of the commissioners is not reviewable by the court or jury; that the effect of it is to authorize the operation of the railway withont a pan, and, that, therefore, there could be no such thing as negligence on its part in failing to apply to them for approval of a pan. The statutory provisions on which it relies in support of this contention are to be found in section 18, c. 548, p. 767, Acts of 1894, and sections 2 and 6, c. 500, pp. 499, 502, Acts of 1897. The first is entitled "An act to incorporate the Boston Elevated Railway Company and to promote rapid transit in the city of Boston and vicinity" and the second is entitled "An act to promote rapid transit in the city of Boston and vicinity" and is in amendment of and in addition to the first. Both acts must therefore be construed together. Section 18 of chapter 548 provides in substance, so far as now material, that when the railway or any portion has been completed, before it shall be open to public use it shall be examined by the railroad commissioners on the application of the corporation and "if it appears to be in a safe condition for operation" the "board shall give the corporation a certificate to that ef78 N.E.-29

fect, which certificate shall be filed in the office of the Secretary of the Commonwealth, and thereupon said corporation shall be authorized to operate said railway." Section 2 of chapter 500 provides, so far as material, that the "corporation may construct lines of elevated railway according to such plans or systems as the board of railroad commissioners may approve to be operated" etc. This is in amendment of the first paragraph of section 6, c. 548, p. 502, acts of 1894. Section 6, c. 500, provides, so far as material, that the corporation shall prepare and file with the railroad commissioners "plans showing the form and method proposed, and the proposed location of the tracks, elevated structure and stations" and the "board shall examine the same with reference to the strength and safety of the structure and to the strength and safety of any bridge traversed thereby and with reference to the rolling stock motive power and method of operation, and with reference to the convenience and comfort of the public. When said construc

tion plans are satisfactory to said board they shall give a certificate approving the same." The corporation is not to proceed with the construction of the road till the certificate has been given and if the plans are not satisfactory the board may require them to be changed before giving its certificate, and any structure erected in accordance with the plans may be changed or modified by the corporation with the consent of the board.

The effect of these various provisions is to require the commissioners to approve the plans before the railway can be constructed, and to require, after the completion of the whole or part of it, a certificate from them that it appears to be in a safe condition for operation before the corporation can operate it. In examining the plans the commissioners are required to consider the strength and safety of the proposed structure, the rolling stock, motive power and method of proposed operation, and the comfort and convenience of the public; and their judgment, in respect to these matters, so far as they enter into their approval of the plans cannot be impeached or controlled. It cannot be shown, for instance, that the railway is unlawfully maintained because the approval by the commissioners of the plans was due to a mistake on their part if such was the fact, as to the strength and safety of the proposed structure, or the comfort and convenience of the public. Their approval is conclusive on the right and authority of the corporation to construct its railway as proposed and has the same effect as an authority conferred by the Legislature to construct it in the manner proposed would have. Taken in connection with their certificate under section 18, c. 548, that the railway appeared to have been constructed in accordance with the plans and appeared to be in a safe condition for operation, it established the structure as a lawful structure and as lawfully maintained and

operated by the defendant. But neither the approval of the plans by the commissioners nor their certificate of operation relieves the corporation from liability in case any one who would otherwise have a cause of action is injured by negligence on its part in the construction or operation of the railway. The test is not the approval or certificate of the commissioners any more than the notification of the superintendent of streets was in Osgood v. Lynn & Boston R. R., 130 Mass. 492. In the absence of anything to exonerate it, the corporation is still bound to exercise reasonable care and diligence in all matters relating to the construction and operation of its railway. It is expressly provided by section 21, c. 500, that the corporation shall be subject to all the duties, liabilities, and restrictions set forth in general laws relating to street railway companies so far as applicable and the general laws relating to street railway companies make them liable for any loss or injury which may be sustained by any person in the management, use and construction of its tracks. Rev. Laws, c. 112, § 44. The object of the Legislature in requiring the approval of the plans by and the certificate of operation from the railroad commissioners was to insure as far as might be by means of the preliminary investigations and examinations thus required the safety, and comfort and convenience of the public. It was not intended, we think, as already observed to relieve the defendant from the exercise of reasonable care and diligence in the construction and operation of the railway. If the approval of the plans by the commissioners and their certificate of operation are not conclusive on the question of the exercise of reasonable care and diligence by the defendant, manifestly the fact that the commissioners had the matter of sparking under investigation and had made no recommendation and taken no action except to cause an investigation to be made cannot be held to be conclusive. See, also, Hubbard v. B. & A. R. R. Co., 162 Mass. 132, 38 N. E. 366.

Moreover it is to be noted, that trouble from sparking was not anticipated when the railway was constructed, and therefore, the safety of the structure with reference to sparking could not have been included in the approval of the plans by the commissioners. It is also to be noted, that the certificate required before the corporation can operate the railway is a certificate that it appears to be in a safe condition for operation, not that it is safe, thus leaving open the question of safety with all the consequences involved.

The plaintiff contends that the approval and the certificate of the commissioners come under section 20, c. 111, Rev. Laws, which provides that no request or advice of the commissioners shall impair the legal obligations of railroad corporations or relieve them from the consequences of negligence on the part of their servants or agents. But the ap

proval and certificate are, it seems to us, to be regarded as something more than advice by the commissioners. They are in the nature of conditions precedent without which the defendant could not proceed to construct or operate its railway, and for want of which it could be restrained on the petition of any party interested from proceeding with the construction or operation of its railway. St. 1894, p. 768, c. 548, § 20.

Whether the defendant should, as matter of law apply to the commissioners for their approval of a pan it is not necessary for us now to decide. If a pan was reasonably necessary, as the jury according to our view have found was the case, then it was either the duty of the defendant to apply to the commissioners for their approval, or to proceed to put up one without such approval. Chase v. Lowell, 151 Mass. 422, 24 N. E. 212. It has done neither, and is consequently at fault if the evidence warranted the finding that a pan was required. Without going into the evidence in detail, it seems to us that it warranted such a finding. Assuming without deciding that the defendant had done as it contends that it had, all that, in view of the state of knowledge on the subject when the railway was constructed it could be reasonably required to do to prevent sparking, its whole duty to safeguard the public from the dangers and injuries resulting from sparking was not thereby discharged. If there was any appliance which, in the reasonable operation of its railway, could be used to intercept the sparks or prevent them from falling to the ground and injuring pedestrians and others having occasion to use the street below, it was its duty to avail itself thereof. It was not enough for it to do all that could be reasonably required to prevent sparking (though we do not mean to intimate that it had done that); it was also bound to do all that it reasonably could, if it was impossible to prevent sparking, to see that no one was injured by the sparks. Their duty to exercise reasonable care to prevent injury to others extends to all particulars connected with the construction and operation of the railway, and is not entirely discharged even if satisfactorily performed as to some of those particulars. There was evidence that it would have been feasible to construct a trough or pan which would have prevented the falling of sparks upon persons in the street, and that it was known that there was a good deal of trouble from sparking after the road began operation in June, 1901, but nothing was done to remedy it. This warranted a finding of negligence on the part of the defendant. The weight and credibility of the evidence and the inferences and conclusions to be drawn from the testimony as a whole were of course for the jury. We see nothing to justify us in setting aside the verdict and granting a new trial.

Exceptions overruled.

(192 Mass. 423)

WALSH v. BOSTON ELEVATED RY. CO.

(Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1906.)

1. STREET RAILROADS-ELEVATED RAILROADPEDESTRIAN ON STREET-FAILURE TO EXERCISE DUE CARE.

A pedestrian on a street does not, as a matter of law, fail to exercise due care because he looks up as a train is passing on the elevated track over the street.

2. SAME-NEGLIGENCE-QUESTION FOR JURY. Whether an elevated railroad did all that could reasonably be required of it to prevent sparks from falling and injuring pedestrians on the street beneath was a question for the jury.

Exceptions from Superior Court, Suffolk County; Jabez Fox, Judge.

Action by one Walsh against the Boston Elevated Railway Company, for personal injuries received by plaintiff in consequence of a spark falling from the elevated structure into one of his eyes. There was a verdict for defendant, and plaintiff excepts. Exceptions sustained.

Jas. F. Creed and John J. Mansfield, for plaintiff. Endicott P. Saltonstall and Sanford H. E. Freund, for defendant.

MORTON, J. This case is governed by Woodall v. Boston Elevated Ry. Co., 78 N. E. 446.

It cannot be said as matter of law that the plaintiff was not in the exercise of due care because he looked up as the train was passing overhead, or that there was no evidence which would warrant a jury in finding that the particles which got into his eye came from the train on the elevated railway. Whether the defendant did all that could reasonably be required of it to prevent sparks from falling and injuring pedestrians and others using the street beneath was a question under proper instructions for the jury. This and the other questions raised are considered in the case above referred to, and need to be further considered here. Exceptions sustained.

(192 Mass. 491)

MILFORD WATER CO. v. TOWN OF HOP

KINTON.

(Supreme Judicial Court of Massachusetts. Middlesex. July 5, 1906.)

1. TAXATION-CORPORATE PROPERTY - LANDS HELD FOR PUBLIC USE-WATERWORKS. The use of land by a corporation formed for the purpose of supplying a city or town and its inhabitants with water for the extinguishment of fires and for domestic and other purposes is a public use, and where the land is taken, or purchased when it could be

taken, and held for such public use, it is not subject to taxation, in the absence of express statutory provision.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 279, 296.]

2. SAME-CHARACTER OF USE-TEST OF EX

EMPTION.

The fact that a corporation empowered to exercise the right of eminent domain and to perform the public trust of furnishing water to the inhabitants of a town for domestic and other purposes is a corporation other than municipal is immaterial as respects its exemption from taxation, the true test being whether it is engaged in the administration of a public trust, with power to take land for that purpose; the character of the use to which the property is put, and not of the party using it, settling the question of such exemption.

[Ed. Note.-For cases in point, see vol. 45 Cent. Dig. Taxation, §§ 279, 296.]

3. SAME-TAKING LAND UNDER STATUTORY PROCEEDINGS.

It is not material whether land taken by a corporation organized to administer a publi trust, such as the furnishing of water to the inhabitants of a town, and to that end au thorized to exercise the power of eminent do main, be taken under statutory proceedings, as where the land could have been so taken, but by an agreement between the corporation and the landowner such proceedings were dispensed with, and the title conveyed by deed, the land, so far as material to the question of exemption from taxation, is to be regarded as if taken by right of eminent domain.

4. SAME-ABATEMENT OF TAXES PRACTICE. Under Rev. Laws, c. 12, § 73, providing that the assessors, if they find that an applicant for abatement is taxed at more than his just proportion or on an assessment of any of his property in excess of its fair cash value, may make a reasonable abatement, the question whether property of a corporation organized for the purpose of supplying the inhabitants of a town with water for domestic and other purposes is exempt from taxation may be determined on a petition by such corporation, following the language of the statute, for an abatement in whole of such taxes.

5. SAME-LISTING FOR ASSESSMENT-ESTUFPEL.

The fact that a corporation organized for the purpose of furnishing a town with water for domestic and other purposes includes in its list to the assessors land used by it as taxable property does not estop it from thereafter claiming that the land is not taxable.

[Ed. Note.-For cases in point, see vol. 45. Cent. Dig. Taxation, § 562.]

Exceptions from Superior Court, Middlesex County; John H. Hardy, Judge.

Petition by the Milford Water Company for an abatement of taxes assessed on property in the town of Hopkinton. From the decision, petitioner brings exceptions. Ex ceptions sustained.

John R. Thayer, Arthur P. Rugg, Henry H. Thayer, and Wendell Williams, for petitioner. Chas. F. Choate, Jr., and Francis C. Pillior, for respondent.

HAMMOND, J. The principal question is whether the real estate is exempt from taxation. The petitioner does not base the claim of exemption upon any express provision of statute, nor does it deny the power of the Legislature to tax the property. But it contends that the general provisions of

our statutes for the taxation of real estate are not applicable where the estate is taken by right of eminent domain (or, being subject to be so taken, has been purchased) for a public purpose and is being used for that purpose.

The leading case upon this subject in our reports is Worcester v. Western R. R. Corp. 4 Metc. 564. The railroad company had been authorized to take a strip of land five rods wide (and, in certain cases not here material, to a greater width), and to purchase such land outside of said strip as might be proper and necessary in carrying on the business for which it was incorporated. It was said by this court that it was manifest upon an inspection of the charter that "the establishment of that great thoroughfare is regarded as a public work established by public authority, intended for the public use and benefit," and it was held that to the extent of the land which the corporation could take by right of eminent domain the real estate of the corporation was exempt from taxation So long as used for the public purpose. It was further held that this was the limit of exemption. The rule thus laid down was approved in Boston & Main R. R. v. Cambridge, 8 Cush. 237. In Wayland v. County Com'rs, 4 Gray, 500, the same principle was applied where land situated in the town of Wayland had been taken by the city of Boston under St. 1846, p. 113, c. 167, for supplying the city with pure water. Thomas, J., in giving the opinion of the court says: "We think the question substantially settled by the decision of this court in the case of Worcester v. Western Railroad."

The principle seems to be that where land is taken (or purchased when it could have been taken) and held for a public purpose, it shall be exempt from taxation in the absence of any express statutory provision to the contrary. It has been applied to a gravel pit owned by one city within the limits of another, and to land taken for highways. Somerville V. Waltham, 170 Mass. 160, 48 N. E. 1092; Lancy v. Boston, 186 Mass. 128, 71 N. E. 302, and cases cited; Boston v. B. & A. R. R., 170 Mass. 95, 49 N. E. 95, and cases cited. In the case last cited, Knowlton, J., said: "This exemption is not founded upon any express provision of any statute, but rests upon general principles of propriety, justice and expediency which are applicable alike to every kind of taxation."

The petitioner, the Milford Water Company, was incorporated "for the purpose of furnishing the inhabitants of Milford with pure water for the extinguishment of fires, and for domestic and other purposes"; and to that end was authorized to take, hold and convey the water of any spring or stream in Milford, and to take and hold by purchase or otherwise any land in the town of Milford or in the town of Hopkin

ton south of Granite street which might be proper and necessary. There was a provision in the act of incorporation providing that the town of Milford should have the right to purchase the corporate property, the price to be agreed upon by the parties or, failing an agreement, by three commissioners. St. 1881, p. 399, c. 77; St. 1882, p. 141, c. 188.

The use is public. As said by Thomas, J., in Wayland v. County Com'rs, ubi supra, "It would be difficult to find any

class of cases in which the right of eminent domain is more justly or wisely exercised than in provisions to supply our crowded towns and cities with pure water, provisions equally necessary to the health and the safety of the people." The petitioner was engaged in ministering to this use, and for this purpose it was empowered to take land by right of eminent domain. It could take land for no other purpose. We do not understand the respondent town to deny that the real estate in question was held and used by the petitioners under its act of incorporation. If the estate had been held by the town of Milford, then the case would have been completely covered by the last case above cited.

It is true that by St. 1893, p. 987, c. 352 (now Rev. Laws, c. 12, § 10), it was provided in substance that although property held by a city or town in another city or town for the purpose of a water supply, if yielding no rent, should be exempt from taxation yet that the city or town so holding should pay to the city or town in which the land was situated a certain sum dependent upon the value of the land, exclusive of buildings or other structures; yet it is manifest that this sum is not technically a tax, but simply a substitute for a tax. The principle of the decision in Wayland v. County Com'rs, ubi supra, is still the law of the commonwealth so far as respects the question of taxation.

It can make no difference that the party which is empowered to exercise the right of eminent domain and to perform this public trust is a corporation other than municipal. The true test is whether it is engaged in the administration of a public trust with power to take land for that purpose. It is the character of the use to which the property is put, and not of the party who uses it, that settles the question of exemption from taxation. Worcester v. Western R. R., ubi supra; Wayland v. Count Com'rs, supra; Boston v. B. & A. R. R., 170 Mass. 95, 49 N. E. 95; Essex v. Salem, 153 Mass. 141, 26 N. E. 431. The case is clearly distinguishable from cases like Boston Water Power Co. v. Boston, 9 Metc. 199, and Commonwealth v. Lowell Gaslight Co., 12 Allen, 75. In the latter case Bigelow, C. J., in speaking of the contention that the defendant was a quasi public corporation like a turnpike or a railroad corporation, uses this language: "We fail