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ed back and came on her right wrist, striking her left side and elbow; the piece of iron came up through the wooden part of the seat and between the cushions where they came together." She further
testified that, "after the iron came up she fell over on to it; when the car gave this sudden jerk she went over on to it; that she was thrown over on her side but not off the seat, * ** that next after she fell over on the iron she swayed back and fell over on the other side on her right wrist." She was corroborated by one witness as to the rate at which the car was moving and as to its coming to a sudden stop. But she was contradicted by several witnesses called by the defendant as to her being thrown over onto the iron, or away from it, and was the only witness who so testified. All of the witnesses agreed, however, that a piece of iron came up through the seat and that the car came to a stop, though all except the plaintiff and one other testified that it was moving slowly when it stopped. There was no evidence as to where the piece of iron came from.
Whether the account given by the female plaintiff of the way in which she received the alleged injuries was correct or not was clearly for the jury. And we think that it was also competent for them to find that the accident was due to negligence on the part of the defendant. The defendant did not offer or attempt to offer any explanation of the accident. The track and the car were under its control and in the absence of any explanation tending to show that the accident occurred without any fault on its part the jury were warranted in finding that it would not have occurred if the defendant had exercised proper care. White v. B. & A. R. Co., 144 Mass. 404, 11 N. E. 552; Feital v. Middlesex R. R. Co., 109 Mass. 398, 12 Am. Rep. 720; Uggla v. West End St. Ry. Co., 160 Mass. 351, 35 N. E. 1126, 39 Am. St. Rep. 481; Copithorne v. Hardy, 173 Mass. 400, 53 N. E. 915; Savage v. Marlborough St. Ry., 186 Mass. 203, 71 N. E. 531.
implication St. 1891, p. 886, c. 323, § 14, as amended by St. 1899, p. 460, c. 433, providing for the determination of the assessable cost of improvements, so far as the improvement is concerned, and assessments for the improvement cannot be levied where the work was done after the adoption of the statute of 1900, though the order for the improvement was adopted prior thereto, and though the proceedings took place under the statute of 1891 as amended.
Case Reserved from Supreme Judicial Court, Suffolk County.
Petition by one Stone against the street commissioners of Boston for a writ of certiorari. Case reserved for the full court. Writ issued.
Frank M. Forbush, for petitioner. Saml. M. Child, for respondents.
MORTON, J. This is a petition for a writ of certiorari to quash a betterment assessment made by the street commissioners of Boston and the petitioner and others for benefits accruing from the relocation and construction of Alford street in that part of Boston which was formerly Charlestown.
There is no dispute as to the facts or as to the remedy if the assessment is invalid. St. 1899, p. 244, c. 280, the city engineer of Boston was required to construct a bridge over Mystic river at or near the site of Malden Bridge, so called, and the street commissioners were authorized to take in fee any lands which they might deem necessary to enable the city to carry out the act. On August 25, 1899, the street commissioners passed an order relocating Alford street from the boundary line between Boston and Everett so as to pass over the bridge thus authorized. Subsequently the Legislature passed an act (chapter 296, p. 222, Acts 1900) authorizing "the board of street commissioners of the city of Boston to lay out, widen and order the construction of so much of the causeway and other parts of the highway between Malden Bridge and the boundary line between said city and the city of Everett and to such width as the board may determine" and providing that the expenses should be paid from the loan authorized by chapter 280, p. 244, Acts 1899, aforesaid, and that "no assessment shall be made for such laying out and construction." Substantially all of the work of constructing Alford street was done after the passage of this act. On October 29, 1904, the street commissioners of the city of Boston purporting to act under St. 1891, p. 886, c. 323, § 14, as amended by St. 1899, p. 460, c. 433, passed an order making the assessments in question. The petitioner contends that under the concluding clause of section 1, c. 296, p. 222, Acts 1900, quoted above, the street commissioners had no authority to make the assessments. We are of opinion that the contention is right.
The right to levy and collect betterment assessments is wholly statutory in its nature, and the Legislature may, at any time, for reasons which it deems satisfactory, suspend
or repeal the law authorizing such assessments, except so far as contractual rights or obligations are involved. In the present case no contractual rights or obligations are Involved. And we think it plain that the concluding clause of section 1, c. 296, p. 222, Acts 1900, repealed by implication the law relating to betterment assessments so far as the particular improvement referred to in said act was concerned. It is immaterial that the repeal took place after the order for relocating the street had been adopted by the street commissioners and that the order for relocation did not purport to be made under chapter 296. The city and the street commissioners were the agents of the commonwealth and were at all times during the proceedings subject to its direction. This was equally true whether the relocation proceedings took place under chapter 296, p. 222, Acts 1900, or under Acts 1891, p. 886, c. 323, 14, as amended by Acts 1899, p. 460, c. 433. The statute referred to in Jones v. Boston, 104 Mass. 461, expressly provided that the repeal should not affect any rights or liabilities which have already accrued under the section hereby repealed and that case is not therefore applicable.
The result is that the writ is to issue as prayed for.
(192 Mass. 415)
DUNPHY v. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1906.)
1. MASTER AND SERVANT-INJURIES TO SERVANT-FAILURE TO WARN.
Where the superintendent of a servant working on a track saw the servant looking out for a train and told him it was all right, and the superintendent saw a train approaching 150 feet away and gave no warning, he was guilty of negligence.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 297, 299301, 305, 306, 312.]
The servant was in the exercise of due care; he being justified in assuming that he was being protected.
[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 675-677.]
Exceptions from Superior Court, Suffolk County; Henry M. Sheldon, Judge.
Action by one Dunphy against the 'Boston Elevated Railway Company. Judgment in favor of plaintiff, and defendant brings exceptions. Exceptions overruled.
H. E. Bolles and Henry M. Channing, for plaintiff. Choate, Hall & Stewart, for defendant.
MORTON, J. The plaintiff was struck and knocked off the track by a passing train while working in the defendant's employment on the loop at the Dudley Street terminal station of defendant's railway in Boston, and this is an action to recover for the injuries there
by received. The declaration contained five counts, the first being at common law and the others under the employer's liability act. The second count was for injuries caused by negligence on the part of a person entrusted with and exercising superintendence, whose sole or principal duty was that of superintendence. The case was submitted to the jury on this count only, the court ruling that there was no evidence entitling the plaintiff to recover under the other counts. There was a verdict for the plaintiff and the case is here on the defendant's exceptions. We think that the ruling was right.
The plaintiff was set to work by Boyd, the superintendent in what both knew to be a dangerous place. According to the plaintiff's testimony he looked up to see if a train was approaching and Boyd, who was standing near, saw him do it and said, "All right, Jack," and the plaintiff went on with his work. This, if believed, warranted the jury in finding that the plaintiff was in the exercise of due care and was justified in assuming that Boyd was looking out for him and in acting accordingly. The evidence showed that an approaching train could be seen 150 feet away and that Boyd stood there with nothing to do but gave the plaintiff no warning of the approach of the train that struck him. This warranted a finding of negligence on the part of Boyd. It was not contended that Boyd was not a superintendent. Davis v. N. Y., N. H. & H. R. Co., 159 Mass. 532, 34 N. E. 1070; Scullane v. Kellogg, 169 Mass. 544, 48 N. E. 622; Greenstein v. Chick, 187 Mass. 157, 72 N. E. 955; Lynch v. M. T. Stevens & Son Co., 187 Mass. 397, 73 N. E. 478.
(192 Mass. 317)
SALLINGER v. SMITH et al.
(Supreme Judicial Court of Massachusetts. Middlesex. June 20, 1906.)
1. HEALTH CONTAGIOUS DISEASE-LOCAL BOARDS-POWERS-USE OF PROPERTY.
Pub. St. 1882, c. 80, § 43, provides, in relation to the public health and contagious diseases, that two justices of the peace may make out a warrant requiring the sheriff to impress convenient houses for the accommodation of the sick. Held, that a board of health of a city had no right to use a residence for a smallpox hospital without the owner's consent, except under a warrant.
[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Health, § 5.] 2. SAME.
Where, after a board of health of a city took possession of plaintiff's dwelling and used it as a smallpox hospital, plaintiff executed a lease to the board and continued to accept rent after the expiration of the term, it amounted to a consent on her part to the occupancy of the premises, and rendered any action by the board under the statute to obtain possession unnecessary.
3. ACTION-ACTION AGAINST BOARD - EVIDENCE-ADMISSIBILITY.
In an action by the owner for damages for the original occupancy, evidence that she did
not know that in executing the lease she was signing away any right to recover damages for the original occupation and that the house was known as the pesthouse was inadmissible.
Exceptions from Superior Court, Middlesex County; Daniel W. Bond, Judge.
Action by one Sallinger against one Smith and others, as the board of health of the city of Everett. Verdict for defendants, and plaintiff brings exceptions. Exceptions overruled.
Dewey & Allen, for plaintiff. Walter S. Thompson, for defendants.
MORTON, J. This is an action of tort to recover damages for the alleged unlawful occupation and use of the plaintiff's premises as a smallpox hospital by the defendants as the board of health of the city of Everett. At the close of the evidence the court ordered a verdict for the defendants, and the case is here on exceptions by the plaintiff to this ruling and to the refusal of the court to give certain rulings that were requested by her.
We think that the ruling was right. On the 22d of November, 1901, the defendants found a case of smallpox in the family of one of the plaintiff's tenants, and thereupon quarantined the plaintiff's premises, and occupied them for a smallpox hospital; some 40 or 42 cases in all being attended to there. The city of Everett had no hospital for contagious diseases at that time, and the premises were in the control of the defendants till some time in the following September. The defendants had no right to use the plaintiff's premises for a smallpox hospital without her consent except under a warrant issued in in accordance with the provisions of Pub. St. 1882, c. 80, § 43, which were in force at the time. Hersey v. Chapin, 162 Mass. 176, 38 N. E. 442. But on December 21, 1901, the plaintiff executed a lease of the premises to the defendants for the term of three months from November 22d at $36 a month with an op-tion on the part of the lessees to hold for four months from said November 22d. The lease provided that the lessees were to pay the rent stipulated during the term and for such further time as the lessees should hold the premises. The rent was subsequently increased to $48 a month from April 22, 1902. It is plain, we think, that the lease and the continued receipt of rent after the expiration of the term named operated as a consent by the plaintiff to the occupancy of the premises by the defendants for a smallpox hospital and rendered any action by them under the statute unnecessary.
The evidence offered by the plaintiff to show that in executing the lease she did not believe or realize that she was signing away rights to recover damages, and that since November, 1901, the house had been commonly known in Everett as "the pesthouse" was rightly excluded.
No fraud or misrepresentation was prac
ticed upon her and her unexpressed belief and failure to realize the full scope and effect of what she was doing were incompetent and immaterial. So also was the fact that the house was known as "the pesthouse."
The view which we have taken of the effect of the lease and the continued payment and receipt of rent renders it unnecessary to consider the rulings requested. Exceptions overruled.
(192 Mass. 324)
HAWES v. BOSTON ELEVATED RY. CO.
A woman carrying a baby, having boarded defendant's train, was about to enter the smoking car, when the brakeman told her to cross quickly over into another car, and in attempting to do so she fell between the cars and was injured. Plaintiff testified that the child prevented her from seeing the space between the platforms, and defendant's evidence showed that the curves of the platform were determined by the shortest curve at which it was necessary for the cars to pass, and that the best device known for covering the space between the cars had proved impracticable. Held, that there was no negligence on the part of the defendant; it not having been bound to warn the passenger or to assist her in crossing.
[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1177-1179.j
Exceptions from Superior Court, Suffolk County; John H. Hardy, Judge.
Action by one Hawes against the Boston Elevated Railway Company. Verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.
J. Winthrop Pickering, for plaintiff. Russell A. Sears, Endicott P. Saltonstall, and Sanford H. E. Fround, for defendant.
MORTON, J. This an action of tort to recover for personal injuries received by the plaintiff by falling through an open space between the platforms of two of the defendant's cars while passing from one to the other with an infant in her arms. She had got on to the platform of a car of one of the trains of the elevated railway, and was in the act of entering the door when the brakeman spoke up sharply and said: "Smoking car, madam; you can't go in there; cross over into the front car, and move quickly." In attempting to obey him she fell between the cars receiving the injuries complained of. The train was at a standstill and she was not pushed or jostled by any other persons. The court ordered a verdict for the defendant and the case is here on the plaintiff's exceptions to this ruling.
We think that the ruling was right. The plaintiff testified amongst other things that the child as she held it prevented her from seeing the space between the platforms and that it required her attention; that her mind was on the child and she was protecting it; that she was herself small and frail and was
unfamiliar with the elevated cars and platforms and had never crossed from one platform to another and did not know that there was any space between them; that she did not look down; and that the brakeman gave her no warning or assistance. The space between the two platforms at its narrowest part was 7 inches wide and 11 inches wide in its widest part, and the ends of the platforms were so constructed that both curved away from each other. The passageway was about two feet wide in the middle of the platforms which were 6 feet in width and on each side of the passageway on each platform about an inch and a half from the edge was an iron post or rod supporting the vestibule roof which covered the platform. The plaintiff testified that in crossing it was neccessary to avoid these posts. The defendant introduced evidence which was uncontradicted that the curves of the platforms of the cars were determined by the shortest curve which it was necessary for the cars coupled together to pass and were no greater than was required, and that experiments had been made with the Gould buffer coupling which was the best device known for covering the space between the ends of cars, and "the couplers went to pieces."
We see no evidence of negligence on the part of the defendant. There is nothing to show that the space between the cars could have been made any less or that the ends of the platforms could have been made any different. The defendant was not bound to warn the plaintiff of the space between the cars, or to assist her in crossing from one to the other and the brakeman's request to move quickly was not, in view of the nature of the defendant's business, an unreasonable one. Whether the plaintiff was in the exercise of due care need not be decided. But it would seem that for her to step from one car to the other without looking down was hardly consistent with the exercise of due care on her part. The infant in her arms and her own inexperience and weakness would seem to have called for the exercise of more care, instead of serving as an excuse for the exercise of less care. The case is fully covered by previous cases. Welch v. Boston El. Ry. Co., 187 Mass. 118, 72 N. E. 500; Falkins v. Boston El. Ry. Co., 188 Mass. 153, 74 N. E. 338; Willworth v. Same, 188 Mass. 220, 74 N. E. 333; Field v. Same, 188 Mass. 222, 74 N. E. 334; Hilborn v. Boston & Northern St. Ry. (Mass.) 77 N. E. 646.
(192 Mass. 299)
RANSOM v. CITY OF BOSTON. (Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1906.)
1. MUNICIPAL CORPORATIONS-CIVIL SERVICE
Rev. Laws, c. 19, § 20, defining a veteran, section 21, providing that a veteran applying for examination under the civil service rules 78 N.E.-31
shall be preferred to persons not veterans, etc., section 22, authorizing a veteran to apply for appointment in the classified services without examination, section 23, prohibiting the removal of veterans holding an office or employment in the civil service, except after hearing, etc., and section 24, providing that the rules shall provide for the employment of veterans in the labor service in preference to all other persons, except women, etc., when considered in connection with the history of the legislation on the subject (St. 1884, p. 346, c. 320; St. 1887, p. 1099, c. 437; St. 1889, p. 1224, c. 473; St. 1894, p. 671, c. 519; St. 1895, p. 618, c. 501; St. 1896, p. 534, c. 517), give to a veteran, employed in the labor service of a city, employment as long as he is able to do the work for which he is employed and the work continues.
[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 578.] 2. SAME-RULES OF CIVIL SERVICE COMMISSION-CONSTRUCTION.
The rules of the civil service commission, which provide that, when laborers are required, the commission shall certify the names of the veterans on the eligible list, and the employment shall be made from the list so certified, and the employing officer shall first employ from the list of veterans certified, adopted pursuant to a statute making it obligatory on the commission to establish rules giving to veterans preference in the labor service, gives to a veteran employed in the labor service of a city the right to continuous employment in preference to laborers who are not veterans, so long as there is work to be done for which he is employed and so long as he is competent to perform that. work.
[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 578.] 3. SAME-DISCHARGE OF VETERAN ACTION AGAINST CITY.
A veteran, employed in the labor service of a city pursuant to the civil service statutes and rules of the civil service commission, may, on his wrongful discharge, maintain an action against the city to recover wages for work subsequent to his discharge; for to confine him to an action against the person doing the work that ought to have been given the veteran to do is a denial of justice to him.
[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 605.] 4. SAME-CONTRACT OF EMPLOYMENT.
The statutes regulating the employment of laborers of cities and the rules of the civil service commission adopted pursuant thereto enter into and form a part of a contract whereby one is employed in the labor service of a city. 5. SAME MEASURE OF DAMAGES.
Where a veteran, employed in the labor service of a city pursuant to the civil service statutes and the rules of the civil service commission, was wrongfully discharged, and the city failed to give him preference over others not veterans while there was work to be done, the measure of damages was the amount which he would have earned, had he been given the preference over others while there was work to be done, less what he earned, or in the exercise of proper diligence might have earned, elsewhere.
6. SAME-RIGHT OF ACTION FOR WRONGFUL DISCHARGE.
Rev. Laws, c. 19, § 35, prescribing a penalty for failing to comply with the civil service statutes, does not prevent a veteran employed in the labor service of a city from maintaining an action against the city for damages for his wrongful discharge.
Exceptions from Superior Court, Suffolk County; Wm. Cushing Wait, Judge.
Action by one Ransom against the city of
Boston. There was a judgment for defendant, and plaintiff brings exceptions. Exceptions sustained.
Perry & Upton, for plaintiff. Philip Nichols, for defendant.
SHELDON, J. This is an action of contract brought to recover wages which the plaintiff would have received if he had been employed continuously by the defendant from May 6, 1895, to the date of his writ.
At the trial in the superior court it appeared that the plaintiff being a veteran of the Civil War within the meaning of the civil service statutes and rules, duly registered with the civil service commission in January, 1895, as a laborer for labor service in the city of Boston; that he was eligible for such labor service; that upon a requisition made to the civil service commission by the superintendent of the public grounds department of the defendant city, he was regularly certified for such service, and was employed as a laborer in said department. He worked in that employment steadily until January 1, 1898, when a foreman in that department told him he was suspended, and thereafter he was refused work except for 10 days during which he was employed and worked as usual, until March 18, 1898, when he was employed and worked as before until January 30, 1899. After this he was again laid off or suspended from time to time during the winter and early spring, and was employed and worked the rest of the time until December 4, 1901, when by an accident he became incapacitated for work until about December 8, 1902. On this last date he was refused any employment or work, and from that time until the date of the writ he was prevented by the superintendent of the department and the foreman, from doing any work. On March 1, 1903, he received notice that he was discharged by the defendant from his employment in said department for the reason that his name had not appeared upon the pay rolls as at work for six months preceeding that date; but on March 26, 1903, the superintendent of public grounds was notified by the civil service commission that the plaintiff, being a veteran, was not to be discharged for that cause, and that his name was still on record at the office of said commission as an employé of the public grounds department.
There was evidence that the plaintiff was at all times, except from December, 1901, to December, 1902, able, ready and willing to work as a laborer in the department for which he was eligible, and that he habitually and frequently asked the superintendent and foreman, to employ him; that when he was first laid off or suspended another man, not a veteran, was put to work in that department as a common laborer, and afterwards continued to perform work such as the plaintiff was accustomed to do, while the plain
tiff was not permitted to work; that there was work done by persons not veterans classified as laborers while the plaintiff was laid off or suspended.
The work done by the plaintiff in the spring, summer and fall was hoeing, sweeping, mowing, loading teams and helping sodders and other laborers. The work done in the winter was sweeping, shoveling off steps, shoveling snow, and clearing the ponds of snow for skating. There was evidence that the force of men employed on the public grounds in the spring, summer and fall for such work as the plaintiff did was cut down during the winter, as there was then no such work to be done, but that certain laborers, not veterans, were employed during the winter months on work which the plaintiff was able and ready to perform. He never was removed or suspended from his employment on any charges preferred against him; and there was no evidence that he ever was removed or suspended after a full hearing before the mayor, or that the removals and suspensions were made upon the written order of the mayor.
Upon this evidence, at the end of the plaintiff's case, the presiding justice ruled that the action in contract could not be maintained, and, upon the general ground that upon all the evidence the plaintiff was not entitled to maintain the action, ordered a verdict for the defendant; and the case comes before us upon the plaintiff's exceptions to this ruling.
It is provided by Rev. Laws, c. 19, § 23, that "no veteran who holds an office or employment in the public service of the commonwealth, or of any city or town therein, shall be removed or suspended, or shall, without his consent, be transferred from such office or employment, nor shall his office be abolished except after a full hearing of which he shall have at least seventy-two hours' written notice, with a statement of the reasons for the contemplated removal, suspension, transfer or abolition. The hearing shall be before the state board of conciliation and arbitration, if the veteran is a state employé, or before the mayor of the city or selectmen of the town of which he is an employé, and the veteran shall have the right to be present and to be represented by counsel. Such removal, suspension or transfer, or such abolition of an office, shall be made only upon a written order stating fully and specifically the cause or causes therefor, and signed by said board, mayor or selectmen, after a hearing as aforesaid." rules of the civil service commissioners made and duly approved under St. 1884, p. 347, c. 320, 2, and the acts in amendment thereof (see now Rev. Laws, c. 19, §§ 6, 7, 24), were put in evidence at the trial, and by agreement of the parties were produced and referred to at the argument in this court. The plaintiff contends that under these stat