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same, he may recover damages therefor. Held; and condition of the walk whichi rendered it in an action against a city for injuries to a
slippery, whether from the material of which pedestrian who fell on a sidewalk at a point where it was made partly of glass, there being
it was composed, or from the travel over it, evidence tending to show that it was smooth or from both. and slippery and that there was a slope in the In this respect the case is very similar to walk longitudinally of about 212 inches in
Cromarty v. Boston, 127 Mass. 329, 34 Am. 10 feet, the question of defendant's negligence was for the jury.
Rep. 381, in which it was held by a majority [Ed. Note.-For cases in point, see vol. 36,
of this court tnat one who slipped upon one Cent. Dig. Municipal Corporations, $$ 1745, of “Hyatt's patent covers,” that had become 1747.]
smooth and slippery by wear, was entitled 2. SAME-EVIDENCE-NEGLIGENCE — ADMISSI
to go to the jury on the question whether the BILITY.
condition constituted a defect in the sideIn an action against a city for injuries to a pedestrian who fell on a sidewalk at a point walk. This case arose before the enactment where it was made partly of glass, defendant of St. 1877, p. 630, c. 234, now embodied in offered to show by two witnesses, one of whom had had an experience of 20 years as a city
Rev. Laws, p. 527, c. 51, $ 18, and the court engineer of another city, and the other a long was careful to point out, what is shown in experience as superintendent of streets, that the
other cases, that, under the law then existsidewalk was of the ordinary and usual construction of such kind of a walk. Held that,
ing, a city might be liable for an accident if while the discretion of the court would have a way was not reasonably safe and convenbeen properly exercised in admitting the testi- ient for travelers, even when there was no mony so far as it related to the glass construc
negligence on the part of the city. See tion, the court was not bound as a matter of law to receive it.
George v. Haverhill, 110 Mass. 506. Where [Ed. Note.-For cases in point, see vol. 36,
the alleged defect consists of an improper Cent. Dig. Municipal Corporations, 1727.] construction that leaves the sidewalk slip
Exceptions from Superior Court, Hampden pery, or of slipperiness from long continued County; L. E. Hitchcock, Judge.
wear, that could readily be discovered, we Action by Maurice J. Moynihan against think the question whether the walk is the city of Holyoke. Judgment in favor of
defective under the old law is so nearly like plaintiff, and defendant brings exceptions.
the question whether the city or town is negliExceptions overruled.
gent under the present law, that the change
in the statutes is of little consequence to the T. N. O'Donnell, for plaintiff. M. J. Grif
decision of the case. While the subject is fin, for defendant.
by no means free from difficulty, we are of KNOWLTON, C. J. The plaintiff fell upon
opinion that there was evidence on this point
which justified the submission of the case a sidewalk of the defendant city and was in
to the jury. jured. The sidewalk was 10 feet wide, and
The defendant offered to show by two witfor about 5 feet of that width, next the McAuslan building, the surface was made part
nesses, one of whom had had an experience ly of glass, commonly known as “Hyatt's
of 20 years as a city engineer of another city, lights," set in cement or concrete. There
and the other a long experience as a superwas evidence that this part of the walk was
intendent of streets, "that the sidewalk was smooth and slippery at the time of the acci
of the ordinary and usual construction of dent, some of the testimony tending to show
this kind of walk.” An exception was taken that it had grown more smooth from the
to the exclusion of the testimony. walking upon it after it was put in, and other
The general question involved in this extestimony tending to show that it was less
ception was carefully considered in Dolan v. smooth than when new.
Boott Cotton Mills, 185 Mass. 576–579, 70 N. There was evidence that there was a slope
E. 1025. There the rule is recognized that, in the walk longitudinally of about 212 inch
on the question whether the use of a particues in 10 feet, and that there was about the
lar machine or appliance by the defendant same slope from the side of the building to
is negligent, the fact that it is in common the curbstone.
use by others is ordinarily helpful, and comThe first question arises upon the defend
petent as evidence. Numerous cases are cit. ant's request for an instruction that upon all ed in support of the proposition. On the the evidence the plaintiff was not entitled to other hand, the danger that may arise from recover.
being led into collateral inquiries is also recThere was testimony from which the jury ognized, as well as the consequent rule that, might well find that the plaintiff was in the in determining the admissibility of such evi. exercise of due care.
dence, much must be left to the discretion The more important question is whether of the presiding judge. The opinion also rethe city could be found guilty of negligence fers to the fact that because of the difficulty because of the slippery condition of the walk. of finding conditions identical or very similar It is not contended that there was a liability in different places, and because of the trial on account of any slipperiness caused by the of collateral issues that might be involved, weather, which was cold and stormy. The such evidence has generally been excluded sole contention of the plaintiff is that there in actions against towns for accidents upon was negligence in allowing a construction highways, and in other similar cases.
in all of these cases the real questions are, rendered in favor of plaintiffs, and defendant How far will the testimony be helpful, as brings exceptions. Overruled. bearing on the propriety or impropriety of John B. Ratigan, John E. Swift, and the defendant's conduct, and how great will
Jeremiah J. Moynihan, for plaintiffs, Wendell be the probable difficulty in obtaining and Williams, J. F. C. Wheelock, G. B. Williams, testing it? In the present case, upon one as- and S. D. Vincent, for defendant. pect of the evidence, the only question was whether the defendant was negligent in us
MORTON, J. These two actions were ing or permitting to be used in the construc- tried together, and there was a verdict for tion of its sidewalk, a material for the sur
the plaintiff in each. The first is for personface which, very likely, is in common use in al injuries received by the plaintiff while a cities, and generally recognized as suitable. passenger in one of the defendant's cars from In this respect the inquiry was similar to the Hopkinton to Milford, and the second is by question whether a certain kind of machine her husband for loss of services and for exused by a defendant is in common use for penses incurred by him on account of the insimilar purposes.
jury to her. The cases are here on excepOn the other hand, the offer of proof was tions by the defendant to the refusal of the broad and general, and seemed to apply to
court to direct verdicts for the defendant and the construction of the sidewalk in every
to rule that on all the evidence neither plainparticular. It was of a kind which the courts
tiff could recover. have generally declined to receive, for the
The accident was caused by an explosion or reasons already referred to. It was held in
a burst of flame or a flash from the controlthe case last cited, and it had often been ler on the car on which the female plaintiff held before, that the admission or exclusion
was. The defendant contends that there was of such evidence must be left very largely to
no evidence warranting a finding that what the discretion of the presiding judge. The
occurred was due to negligence on its part bill of exceptions does not show such facts
and that it was the case of an ordinary flash in regard to Hyatt's lights, and the way they
from the controller which there is no way to have been used in this sidewalk and in other prevent and the occurrence of which would sidewalks, as to make it plain that there
not therefore import negligence on its part. was error of law in excluding the offered evi- It further contends, though this is, perhaps, dence. It seems probable that the admission
included in the statement of its contention of it would not have introduced such trouble
already made, that there was no evidence of some collateral inquiries as to interfere with
failure on its part to properly inspect the the general course of the trial, and that it
controller. would have put before the jury facts that
The defendant's contention implies that it legitimately bore upon the question of the
is not liable for an injury caused by a flash defendant's negligence.
from the controller which could not be pre
We are of opinion that the discretion of the court would have
vented by any means that have yet been debeen better exercised if the testimony, so far
vised or any care that could be exercised. as it related to the Hyatt's lights, had been
We doubt the correctneses of that proposi
tion. It would seem that if the company sees admitted; but we cannot say that the court was bound, as matter of law, to receive it.
fit to use a force which is so imperfectly Exceptions overruled.
understood that no method has yet been devised for preventing a flash from the control
ler, the company and not the passenger (193 Mass. 44)
should bear the risks arising from its use. GILMORE v. MILFORD & U. ST. RY. CO. But however that may be, there was testi(two cases).
mony tending to show that what occurred (Supreme Judicial Court of Massachusetts. was much more than an ordinary flash from Worcester. Oct. 16, 1906.)
the controller. A witness who stood in the CARRIERS — STREET RAILROADS - INJURIES TO vestibule with the motorman testified inter PASSENGERS-NEGLIGENCE.
alia that “the flame illuminated the whole Plaintiff was injured as the result of an
vestibule and all the vicinity. The flame explosion or burst of flame from the controller on defendant's street car, in which she was struck his coat and he could see a very slight a passenger. Defendant claimed that the flash mark there the next morning. * was an ordinary flash from the controller, which
There was some smoke. The fumes from could not be prevented by any means yet devised or any care which could be exercised.
whatever burned and the smoke there was There was other evidence, however, that the dense. * * He was affected in his sight flash was more than an ordinary controller
very badly that evening.
* The next flash, and that it lasted 15 to 20 seconds, lighted the whole front vestibule, and filled the car
morning he felt the effect a little but not so with dense smoke. Held, that such facts were
As near as he could put it sufficient to warrant an inference of negligence the length of time of the flame would be a on defendant's part.
quarter of a minute, or a little more posExceptions from Superior Court, Worcester sibly.” On cross-examination he testified County; E. P. Pierce, Judge.
that "the flame was a continuous fiame with Actions by Mary E. Gilmore and by Frank equal force." Another witness testified, Gilmore against the Milford & Uxbridge “that as soon as he saw the flash in the front Street Railway Company.
A verdict was vestibule the passengers seemed to rise up
around him and make a rush towards the back of the car, that he got excited himself and looked up and it seemed as though the whole front vestibule of the car was on fire. * * * As near as he could judge the flame lasted from 15 to 20 seconds." Still another witness testified that, "we went along all right until we got to the town house. Then a sort of report and the car was illuminated in the front vestibule and I thought the front of the car was all aflame. * * I should say that it lasted about 18 seconds. When the door was opened (i. e., the door into the front vestibule) a volume of smoke came into the car.” The female plaintiff testified, "that when the car got in the vicinity of the town house, all at once she heard a noise and turned and looked and the front vestibule seemed to be all ablaze and the passengers seemed to be scuffling around in there, and heard the door opened and the passengers in the car all jumped to their feet so far as she could see on both sides of the
They all seemed to push as though they were trying to leave the car. The flame was just a bright light and seemed to illuminate the whole vestibule, and when the door was opened it seemed brighter. She could see it as high as the door. A dense smoke came into the car and a stifling smell. Should think the flame lasted a quarter of a minute or more.” There was testimony tending to contradict the statements thus made and to show that what occurred could not have been so serious as thus represented. But it was for the jury to say what the nature of the occurrence was. With slight adaptations the language used by Mr. Justice Hammond in delivering the opinion of the court in Cassady v. Old Colony Street Railway, 184 Mass. 156, 161, 68 N. E. 10, 12, 63 L. R. A. 285, will, we think, apply here: “The jury upon the evidence may have found that the flame in this case was not the instantaneous and harmless flame which results from a flash from a controller when in proper condition; that the flame was attended with unusual results which would not have occurred if the controller had been in proper condition, and that the most reasonable conclusion was that if proper care had been exercised there would have been no such flame." The defendant introduced evidence tending to show that it exercised proper care and diligence in inspecting the controller. But the weight to be given to this evidence was clearly for the jury. The result is that we think that the exceptions must be overruled in both cases.
raised by the pleadings as they stood, it was not open to him to object, on exceptions, that two counts of the declaration did not set out a good cause of action.
[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, $& 1226, 1232, 1233, 1237; vol. 39, Cent. Dig. Pleading, 88 1362–1372.] 2. SLANDER-DECLARATION-OBJECTIONS-DEMURRER.
That the declaration in an action for slander failed to set out a cause of action, because of a failure to state sufficient circumstances to show the sense in which the words were spoken, could be taken advantage of only by demurrer; and, defendant having failed to demur, it was only open to him, after verdict, to argue that on all the evidence the words were spoken under such conditions as not to charge a crime. 3. SAME-EVIDENCE-ADULTERY.
In an action for slander, proof that defendant asked another, "Ward (meaning plaintiff's husband) has sold half of his wife to Legeyt (meaning Warren Legeyt), hasn't he?" was sufficient to amount to a charge of adultery, and was slanderous, though the statement was in the form of an interrogation.
[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Libel and Slander, 8 72.] 4. SAME-REPUTATION-MARRIAGE-EVIDENCE.
In an action for slander, consisting of a charge of adultery against plaintiff, evidence that she was reputed to be married, in the absence of evidence that she was not, was sufficient to sustain a finding that she was a married woman,
Exceptions from Superior Court, Worcester County; Charles A. De Courcy, Judge.
Action by Ella V. Ward against Caleb S. Merriam. A verdict was rendered in favor of plaintiff, and defendant brings exceptions. Overruled.
The first count alleged that the defendant on the 7th of September, 1904, charged the plaintiff with the crime of adultery by words spoken of her substantially as follows: "Ward (meaning the plaintiff's husband) has sold half of his wife to Legeyt (meaning Warren Legeyt), hasn't he?"
The second count alleged that the defendant on the 9th of September, 1904, charged the plaintiff with the crime of adultery by words spoken of her substantially as follows: “She (meaning the plaintiff) is nothing but a damned whore anyway.'
The third count alleged that the defendant on the 9th of September, 1904, charged the plaintiff with the crime of adultery by words spoken of the plaintiff substantially as follows: “You (meaning Warren Legeyt) use (meaning commit adultery with her (meaning plaintiff) one-half the time and Ward (meaning the plaintiff's husband) half the time."
No special damage was alleged.
The defendant's answer was a general denial and privileged communication. • David I. Walsh and Thomas L. Walsh, for plaintiff C. E. Tupper, for defendant.
(193 Mass. 135)
WARD V. MERRIAM. (Supreme Judicial Court of Massachusetts.
Worcester. Oct. 17, 1906.) 1. APPEAL EXCEPTIONS OBJECTIONS TO PLEADING--WAIVER.
Where defendant failed to demur to the declaration, and went to trial on the issues
RUGG, J. This is an action of slander. At the close of the evidence, the defendant requested the ruling that the plaintiff could not recover upon the first and third counts,
faithful performance of the duties of an agent, the agent was employed at a fixed salary, the company paying the office expenses; but subsequently a new arrangement was made, without the knowledge of the surety, whereby the agent was to receive a commission on all business transacted and pay the office expenses, he becoming responsible for all premiums due on policies written by him. Held, that such arrangement released the surety.
[Ed. Note.- For cases in point, see vol. 40, Cent. Dig. Principal and Surety, $$ 155-157.]
Appeal from Superior Court, Worcester County.
Action by Germania Fire Insurance Company against Hermann F. A. Lange. From a judgment in favor of defendant, plaintiff appeals on an agreed statement of facts. Judg. ment for defendant.
Burton W. Potter and Paul Potter, for appellant. Webster Thayer, Hollis W. Cobb, and Fred A. Walker, for appellee.
He also asked for a specific ruling as to the effect of certain words claimed by the defendant to have been spoken, instead of those alleged in the first count. By an answer to a question the jury found that the defendant used the language set forth in the first count. On this ground the defendant's exception to his request for the specific ruling must be overruled.
The question presented by the other two prayers is a very different one from that which would arise if the defendant had demurred. The defendant having failed to demur and having gone to trial upon the issues raised by the pleadings as they stood, it is not now open to him to raise the point that the first and third counts do not set out a good cause of action. Although the declaration may not set out a cause of action by reason of a failure to state sufficient circumstances to show the sense in which the words were spoken, this objection can be taken only on demurrer. After verdict, it is only open to the defendant to argue that upon all the evidence the words were spoken under such conditions as not to amount to the charge of à crime. Chase v. Sherman, 119 Mass. 387. Many of the cases cited by the defendant arose upon demurrers and are therefore of little weight upon the question now open for consideration.
Taking into account all the circumstances disclosed by the evidence, there was enough to warrant the jury in finding that the words were spoken in such a sense as to amount to a charge of adultery. It is of no consequence that the statement was put in the form of a question. Insidious and harmful insinuations may often be conveyed under the cover of an inquiry. If it is open to the defendant to now question the sufficiency of the proof as to the plaintiff's being a married woman (Oulighan v. Butler, 189 Mass. 287, 75 N. E. 726), there was enough to warrant a finding that she was so reputed, and this, in the absence of any other evidence, was all that was required of the plaintiff. 1 Greenleaf on Evidence, § 140c.
KNOWLTON, C. J. The defendant signed a bond as surety for the faithful performance of his duties by one Lichtenfels, as an agent of the plaintiff company. If the bond is applicable to the conditions arising after the change hereinafter stated, there has been a breach of its condition.
At the time of its execution Lichtenfels was employed by the plaintiff as its agent, at a fixed salary of $1,800 per year, the plaintiff paying the office expenses and brokers' commissions, amounting in the aggregate to about $2,100 per annum. Nearly nine years after the bond was given a new arrangement was made between the plaintiff and this agent, without the knowledge of the defendant, whereby the agent was to receive, instead of a fixed salary, a stated commission on all business transacted by him in behalf of the company, and was to pay all the expenses of the business in Worcester, which included the rent, heating and lighting of the office, the advertising and the salaries of subagents. He also became responsible to the company for all premiums due on policies written by him or his subagents and not returned by him to the company for cancellation. In other particulars his duties were substantially the same as he was performing while receiving a salary. If he did as much business under the new arrangement as under the old, it would yield him a greater compensation than his former salary. The defendant had no knowledge of this change in the arrangement until after the death of Lichtenfels. The only question in the case is whether this change in the contract between the plaintiff and the agent discharged the defendant from liability for the agent's subsequent defaults.
The bond contains no description of the contract between the plaintiff and Lichtenfels, beyond the statement that he had been appointed agent for this insurance company for Worcester. But in the condition of the bond many of his duties are mentioned, and the defendant was also told by the parties
(193 Mass. 67) GERMANIA FIRE INS. CO. V. LANGE. (Supreme Judicial Court of Massachusetts.
Worcester. Oct. 16. 1906.) 1. EVIDENCE PAROL EVIDENCE AFFECTING WRITINGS-CONTRACT OF SURETYSHIP.
In an action against the surety on a bond given a fire insurance company for the faithful performance of the duties of an agent, it was competent to prove by parol the terms of the contract between the company and the agent, to show the nature and extent of defendant's liability.
[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, $S 2140, 1903.) 2. PRINCIPAL AND SURETY DISCHARGE OF SURETY-CHANGE IN CONTRACT.
At the time defendant signed as surety a bond given a fire insurance company for the
what the contract was. If he had not been expressly informed of this, he would have been presumed to have contracted in reference to the actual conditions, and to have known what they were, so far as they bore upon the liability assumed. It was therefore competent to prove by parol the terms of the contract between the plaintiff and the agent, to show the nature and extent of the defendant's liability. Rollstone National Bank v. Carleton, 136 Mass. 226; Grocers' Bank v. Kingman, 16 Gray, 473; Boston Hat Manufactory v. Messinger, 2 Pick. 223.
The general rule is familiar, that a substantial change in the conditions to which such a bond relates, made without the knowledge and consent of the surety, discharges him from further liability. Warren v. Lyons, 152 Mass. 310-312, 25 N. E. 721, 9 L. R. A. 353; Grocers' Bank v. Kingman, 16 Gray, 473; Northwestern Railroad Co. v. Whinray, 10 Exch, 77; Boston Hat Manufactory v. Messinger, 2 Pick. 223. In Warren v. Lyons Mr. Justice William Allen reviewed the authorities, and said in the opinion : question here is not merely whether the creditor has done some act which impairs the security or enhances the risk of the guarantor; but it relates to the subject-matter of the guaranty-whether the contract broken is the contract performance of which is guarantied. The guarantor cannot be held to a contract different from the terms of his guaranty, even though it be apparently more beneficial to him."
In the present case the question is whether there was a substantial change in the contract to which the bond relates. It seems to us very plain that there was. The case of Northwestern Railway Co. v. Whinray, 10 Exch. 77, which has been cited and followed in this court, was similar to this, and fully covers it.
The decision in Amicable Mutual Life Insurance Co. v. Sedgwick, 110 Mass. 163, was by only a majority of the court, and the change in the contract was much less than the change in the present case, as is pointed out in the opinion. That decision does not sustain the present plaintiff's contention.
Judgment for the defendant.
before the commencement of the action and on declarant's personal knowledge.
[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, 88 1139, 1140.] 2. APPEAL OBJECTIONS AT TRIAL-EXCEPTIONS-ADMISSION OF EVIDENCE.
Where evidence which was admissible in case a proper foundation was laid was admitted de bene, with the understanding that the foundation should be subsequently supplied, an exception thereto will not be sustained unless the party's failure to prove such foundation was afterwards brought to the attention of the court and a further ruling on that ground requested. 3. SAME-QUESTIONS PRESENTED FOR REVIEW -CONSTRUCTION OF BILL OF EXCEPTIONS.
In an action for injuries by a fire set under the direction of M., a bill of exceptions began with the statement, “The evidence material to the issues raised was as follows," and concluded with a statement that the question of M.'s agency and authority to direct the men to set the fire was submitted to the jury under proper instructions, and not excepted to by either party. Held, that the bill established that defendants did not raise the question of the sufficiency of M.'s authority. 4. SAME-OBJECTIONS AT TRIAL-RULINGS ON EVIDENCE.
Where a question calling for declarations of defendants' deceased agent did not call for facts not within his knowledge, and no motion was made to strike out the answer on that ground at the trial, the objection that the facts testified to by him were not within his personal knowledge could not be raised on exceptions. 5. SANE-REVIEW-HARMLESS ERROR.
In an action for damages by fire set under the direction of M., who was defendants' agent, it appeared that M. went to the fire after it started. Held, that the admission of declarations of M., who died before trial, with reference to the fire, over an objection that the facts were not within his personal knowledge was without prejudice, where the only such fact stated by him was that the fire was set by certain employés, and this was stated in the bill of exceptions as a fact.
[Ed. Note.--For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $8 4161-4170.1
Exceptions from Superior Court, Worcester County ; Edward P. Pierce, Judge.
Action by Ella L. Putnam against Arthur T. Harris and others. A verdict was rendered in favor of plaintiff, and defendants bring exceptions. Overruled.
Joseph P. Carney, for plaintiffs. Geo. R. Warfield, for defendant,
(193 Mass. 58)
PUTNAM V. HARRIS et al. (Supreme Judicial Court of Massachusetts.
Worcester. Oct. 16, 1906.) 1. EVIDENCE-DECLARATION OF DECEASED PERSON-STATUTES.
Where M. had authority to direct the clearing of certain lands for defendants, and in the performance of such work fire kindled thereon escaped and burned plaintiff's trees, M. having died before suit for damages had been brought against defendants, evidence of his directions given to his subordinates with reference to such work was admissible, under Rev. Laws, c. 175, $ 66, providing that a declaration of a deceased person shall not be inadmissible as hearsay if it was made in good faith
LORING, J. This is an action for negligence against the defendants in setting a fire on their own land, which got beyond control, ran over an intervening lot, and damaged the trees on the plaintiff's premises.
As one step in proving that the fire was set by direction of the defendants the plaintiffs offered to prove by one Putnam the statement of one McNaughton. It appeared that McNaughton died before the action now before us was brought. To the introduction of this evidence the defendants objected. The court ruled that the admissibility of the testimony depended "upon whether or not the questions could have been put to him or his testimony could have been shown if he were alive." The defendants again objected