same, he may recover damages therefor. Held, in an action against a city for injuries to a pedestrian who fell on a sidewalk at a point where it was made partly of glass, there being evidence tending to show that it was smooth and slippery and that there was a slope in the walk longitudinally of about 21⁄2 inches in 10 feet, the question of defendant's negligence was for the jury.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1745, 1747.]

2. SAME-EVIDENCE-NEGLIGENCE - ADMISSI

BILITY.

In an action against a city for injuries to a pedestrian who fell on a sidewalk at a point where it was made partly of glass, defendant offered to show by two witnesses, one of whom had had an experience of 20 years as a city engineer of another city, and the other a long experience as superintendent of streets, that the sidewalk was of the ordinary and usual construction of such kind of a walk. Held that, while the discretion of the court would have been properly exercised in admitting the testimony so far as it related to the glass construction, the court was not bound as a matter of law to receive it.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1727.]

Exceptions from Superior Court, Hampden County; L. E. Hitchcock, Judge.

Action by Maurice J. Moynihan against the city of Holyoke. Judgment in favor of plaintiff, and defendant brings exceptions. Exceptions overruled.

T. N. O'Donnell, for plaintiff. M. J. Griffin, for defendant.

KNOWLTON, C. J. The plaintiff fell upon a sidewalk of the defendant city and was injured. The sidewalk was 10 feet wide, and for about 5 feet of that width, next the McAuslan building, the surface was made partly of glass, commonly known as "Hyatt's lights," set in cement or concrete. There was evidence that this part of the walk was smooth and slippery at the time of the accident, some of the testimony tending to show that it had grown more smooth from the walking upon it after it was put in, and other testimony tending to show that it was less smooth than when new.

There was evidence that there was a slope in the walk longitudinally of about 21⁄2 inches in 10 feet, and that there was about the same slope from the side of the building to the curbstone.

The first question arises upon the defendant's request for an instruction that upon all the evidence the plaintiff was not entitled to

recover.

There was testimony from which the jury might well find that the plaintiff was in the exercise of due care.

The more important question is whether the city could be found guilty of negligence because of the slippery condition of the walk. It is not contended that there was a liability on account of any slipperiness caused by the weather, which was cold and stormy. The sole contention of the plaintiff is that there was negligence in allowing a construction

and condition of the walk which rendered it slippery, whether from the material of which it was composed, or from the travel over it, or from both.

In this respect the case is very similar to Cromarty v. Boston, 127 Mass. 329, 34 Am. Rep. 381, in which it was held by a majority of this court tnat one who slipped upon one of "Hyatt's patent covers," that had become smooth and slippery by wear, was entitled to go to the jury on the question whether the condition constituted a defect in the sidewalk. This case arose before the enactment of St. 1877, p. 630, c. 234, now embodied in Rev. Laws, p. 527, c. 51, § 18, and the court was careful to point out, what is shown in other cases, that, under the law then existing, a city might be liable for an accident if a way was not reasonably safe and convenient for travelers, even when there was no negligence on the part of the city. See George v. Haverhill, 110 Mass. 506. Where the alleged defect consists of an improper construction that leaves the sidewalk slippery, or of slipperiness from long continued wear, that could readily be discovered, we think the question whether the walk is defective under the old law is so nearly like the question whether the city or town is negligent under the present law, that the change in the statutes is of little consequence to the decision of the case. While the subject is by no means free from difficulty, we are of opinion that there was evidence on this point which justified the submission of the case to the jury.

The defendant offered to show by two witnesses, one of whom had had an experience of 20 years as a city engineer of another city, and the other a long experience as a superintendent of streets, "that the sidewalk was of the ordinary and usual construction of this kind of walk." An exception was taken to the exclusion of the testimony.

The general question involved in this exception was carefully considered in Dolan v. Boott Cotton Mills, 185 Mass. 576-579, 70 N. E. 1025. There the rule is recognized that, on the question whether the use of a particular machine or appliance by the defendant is negligent, the fact that it is in common use by others is ordinarily helpful, and competent as evidence. Numerous cases are cited in support of the proposition. On the other hand, the danger that may arise from being led into collateral inquiries is also recognized, as well as the consequent rule that, in determining the admissibility of such evidence, much must be left to the discretion of the presiding judge. The opinion also refers to the fact that because of the difficulty of finding conditions identical or very similar in different places, and because of the trial of collateral issues that might be involved, such evidence has generally been excluded in actions against towns for accidents upon highways, and in other similar cases. But

in all of these cases the real questions are, How far will the testimony be helpful, as bearing on the propriety or impropriety of the defendant's conduct, and how great will be the probable difficulty in obtaining and testing it? In the present case, upon one aspect of the evidence, the only question was whether the defendant was negligent in using or permitting to be used in the construction of its sidewalk, a material for the surface which, very likely, is in common use in cities, and generally recognized as suitable. In this respect the inquiry was similar to the question whether a certain kind of machine used by a defendant is in common use for similar purposes.

On the other hand, the offer of proof was broad and general, and seemed to apply to the construction of the sidewalk in every particular. It was of a kind which the courts have generally declined to receive, for the reasons already referred to. It was held in the case last cited, and it had often been held before, that the admission or exclusion of such evidence must be left very largely to the discretion of the presiding judge. The bill of exceptions does not show such facts in regard to Hyatt's lights, and the way they have been used in this sidewalk and in other sidewalks, as to make it plain that there was error of law in excluding the offered evidence. It seems probable that the admission of it would not have introduced such troublesome collateral inquiries as to interfere with the general course of the trial, and that it would have put before the jury facts that legitimately bore upon the question of the defendant's negligence. We are of opinion that the discretion of the court would have been better exercised if the testimony, so far as it related to the Hyatt's lights, had been admitted; but we cannot say that the court was bound, as matter of law, to receive it. Exceptions overruled.

Plaintiff was injured as the result of an explosion or burst of flame from the controller on defendant's street car, in which she was a passenger. Defendant claimed that the flash was an ordinary flash from the controller, which could not be prevented by any means yet devised or any care which could be exercised. There was other evidence, however, that the flash was more than an ordinary controller flash, and that it lasted 15 to 20 seconds, lighted the whole front vestibule, and filled the car with dense smoke. Held, that such facts were sufficient to warrant an inference of negligence on defendant's part.

Exceptions from Superior Court, Worcester County; E. P. Pierce, Judge.

Actions by Mary E. Gilmore and by Frank Gilmore against the Milford & Uxbridge Street Railway Company. A verdict was

rendered in favor of plaintiffs, and defendant brings exceptions. Overruled.

John B. Ratigan, John E. Swift, and Jeremiah J. Moynihan, for plaintiffs, Wendell Williams, J. F. C. Wheelock, G. B. Williams, and S. D. Vincent, for defendant.

MORTON, J. These two actions were tried together, and there was a verdict for the plaintiff in each. The first is for personal injuries received by the plaintiff while a passenger in one of the defendant's cars from Hopkinton to Milford, and the second is by her husband for loss of services and for expenses incurred by him on account of the injury to her. The cases are here on exceptions by the defendant to the refusal of the court to direct verdicts for the defendant and to rule that on all the evidence neither plaintiff could recover.

The accident was caused by an explosion or a burst of flame or a flash from the controller on the car on which the female plaintiff was. The defendant contends that there was no evidence warranting a finding that what occurred was due to negligence on its part and that it was the case of an ordinary flash from the controller which there is no way to prevent and the occurrence of which would not therefore import negligence on its part. It further contends, though this is, perhaps, included in the statement of its contention already made, that there was no evidence of failure on its part to properly inspect the controller.

The defendant's contention implies that it is not liable for an injury caused by a flash from the controller which could not be prevented by any means that have yet been devised or any care that could be exercised. We doubt the correctneses of that proposition. It would seem that if the company sees fit to use a force which is so imperfectly understood that no method has yet been devised for preventing a flash from the controller, the company and not the passenger should bear the risks arising from its use.

But however that may be, there was testimony tending to show that what occurred was much more than an ordinary flash from the controller. A witness who stood in the vestibule with the motorman testified inter alia that "the flame illuminated the whole vestibule and all the vicinity. The flame struck his coat and he could see a very slight mark there the next morning. * There was some smoke. The fumes from whatever burned and the smoke there was dense. *** He was affected in his sight very badly that evening. * The next morning he felt the effect a little but not so much. As near as he could put it the length of time of the flame would be a quarter of a minute, or a little more possibly." On cross-examination he testified that "the flame was a continuous fiame with equal force." Another witness testified, "that as soon as he saw the flash in the front 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 car. 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

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, §§ 1362-1372.]

2. SLANDER-DECLARATION-OBJECTIONS-DE

MURRER.

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, § 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.

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.

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 insinua

tions 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.

Exceptions overruled.

(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, §§ 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

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. Judgment for defendant.

Burton W. Potter and Paul Potter, for appellant. Webster Thayer, Hollis W. Cobb, and Fred A. Walker, for appellee.

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

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: "The 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."

before the commencement of the action and on declarant's personal knowledge.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 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. SAME-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, §§ 4161-4170.]

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.

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