Where the majority owner of a tug let it to a dredging company, which was to furnish coal, oil, food, etc., while the owner paid the crew and the captain, who remained in command, and, the wheel having been fouled while the tug was being used by the dredging company, its superintendent directed the captain to go to defendant lighter company's wharf for repairs, and the captain, observing plaintiff in his motorboat, engaged him to assist the engineer in the work, wherein plaintiff was injured, he was not a volunteer or a trespasser, but lawfully assisting the engineer.

2. MASTER AND SERVANT 284(3)-SCOPE OF EMPLOYMENT-QUESTION FOR JURY.

Whether the acts of defendant lighter company's servants or agents in undertaking to raise the stern of the tug to make repairs were unauthorized, and exceeded the scope of their employment, held for the jury.

Evidence held to justify finding that, if the one in charge of defendant lighter company's lighter exceeded his authority in undertaking the repairs on the tug, his acts were ratified. 6. PRINCIPAL AND AGENT 137(1)-ESTOPPEL TO DENY AUTHORITY-ACCEPTANCE OF BENEFITS.

A lighter company, acting with full knowledge of all the circumstances, should not be permitted to charge for repairing a dredging company's tug, and then, when sued by one injured in helping in the repairs through the negligence of its servants, turn around and repudiate its liability, on ground it did not authorize repair work.

DEFEC

7. MASTER AND SERVANT 278(3)
TIVE TACKLE-SUFFICIENCY OF EVIDENCE.
In an action for injuries to plaintiff while
helping the servants of a lighter company to
repair a tug, evidence held to justify finding
that the lighter company, through its servants,
was negligent in using defective tackle.

8. NEW TRIAL 44(4)-MISCONDUCT OF JU

ROR-PERSONAL VIEW OF PREMISES.

If, on his own initiative, a juror takes a view of the premises where the personal injuries in suit occurred, thus obtaining evidence outside of the evidence introduced in the courtroom, his conduct does not, as matter of law, require setting aside of verdict by the trial judge.

9. APPEAL AND ERROR 1015(5)-REVIEW→ FINDING-REFUSING NEW TRIAL-JURYMAN

VIEWING PREMISES.

The finding of the trial court that no harm to defendant had resulted from a juror's view of the premises where the injuries in suit were received having been warranted, it is conclusive, and no error of law appears in refusal to set aside verdict for plaintiff and to order new trial on that account.

10. MASTER AND SERVANT 192(2) - INJURIES TO SERVANT-NEGLIGENCE OF FELLOW SERVANT.

If plaintiff was an employé of the owner of a tug, the captain of which asked him to assist the engineer and himself in making repairs, the captain and engineer were his fellow servants, and the owner cannot be held responsible for the captain's negligence, resulting in injuries to plaintiff. 11. MASTER AND SERVANT 88(3)—FELLOW SERVANTS-CONTRACTOR AND CONTRACTEE.

Where the captain of a tug, a rope having become fouled in the wheel, employed or requested plaintiff to assist in repairing the tug, and plaintiff took the tug's engineer in his motorboat under the stern of the tug, when it was raised by a lighter company, the relation be tween the parties was that of contractor and contractee, not of fellow servants.

Exceptions from Superior Court, Suffolk County; W. P. Hall, Judge.

Actions of tort by Charles Collins against Herbert W. Splane and against the McKie Lighter Company. Verdicts for plaintiff, and defendants except. Judgment ordered for defendant in the first case; in the second case, exceptions overruled.

Damon E. Hall and Wilfred B. Keenan, both of Boston, for plaintiff. Sawyer, Hardy, Stone & Morrison, of Boston (Edward C. Stone, of Boston, of counsel), for defendant Splane. Edward I. Taylor, of Boston, for defendant McKie Lighter Co.

BRALEY, J. These actions are at common law for personal injuries alleged to have been caused by the negligence of the defendants, who, if responsible, are liable as concurrent tort-feasors. Feneff v. Boston & Maine Railroad, 196 Mass. 575, 82 N. E. 705. And after verdicts for the plaintiff the cases are before us on the defendants' separate bills of exceptions.

[1] It is not contended that the plaintiff was careless and on uncontradicted evidence it appears that when injured he was engaged with his motorboat in assisting the engineer of the tug to remove a rope or hawser with which the propeller wheel had become entangled or fouled, and that in order to free the wheel it had become necessary to raise the stern of the tug far enough above the water level to enable the plaintiff to remain underneath while the engineer performed the work. The defendants also, make no contention, that after the stern of the tug had been elevated sufficiently at the lighter company's wharf, a part of the hoisting apparatus gave way causing the tug to fall,

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*

* * *

he

"If the engineer had not been astraddle of the shaft and Collins under the stern, I should have told the engineer of the lighter to immediately have lowered that boat down, but if I had done so it would have hurt them the same as they were."

and in its descent to strike and injure the of the lighter to await his return. It also plaintiff. We first consider the exceptions appeared and could be found that when, some of the lighter company hereafter referred to 2 hours later, the manager "looked out the as the defendant. The first request which back room from his office, and saw the judge refused to give asked for a direct- the stern half way up in the air, ed verdict, because on "all the evidence and rushed down, and asked the engineer what the pleadings the plaintiff is not entitled to * *he was doing"; "don't you know betrecover." The jury could find that the de- ter than this?" But even then the manager, fendant Splane, acting as "managing owner" | although he saw the men, including the plainand agent for the co-owners, let the tug to the tiff, "under the stern," gave no warning to Packard Dredging Company which was to fur- the plaintiff of his peril, or directed the tug, nish coal, water, oil, and food, while he paid which fell about ten or fifteen minutes after the crew and the captain, who remained in he got there, to be lowered. It is true command of the vessel. The wheel having that in explanation of his conduct the generbeen fouled while the tug was being used al manager testified: by the dredging company, the superintendent of the dredging company directed the captain to go to the defendant's wharf for the purpose already described, and while the tug was on the way, or approached the lighter lying next to the wharf, the captain, observing the plaintiff, engaged him to assist the engineer. It is unnecessary to decide whether the plaintiff was a fellow servant of the captain, or an independent contractor, or whether in making the contract the captain acted as the agent of the defendant Splane, or of the dredging company. Whichever view is taken, the jury could say that he was not a volunteer or a trespasser, but lawfully was assisting the engineer, and being where he had a right to be, the plaintiff is not required before he can recover to prove any contractual relation between himself and the defendant. Stewart v. Harvard College, 12 Allen, 58, 67; Hall v. Bates, 216 Mass. 140, 142, 103 N. E. 285.

*

[3-6] But the sufficiency of this excuse when he could have warned the plaintiff, as well as the engineer of the tug, to move from under the stern, and then have lowered the tug, was for the jury. The testimony of Campbell also was before them, that “he was on the lighter on duty, * * staying there all day, doing all around or ordinary work," and that the general manager “did not tell him to do any work for the company that came along unless he got orders," and that, while no orders were given that day, "the witness was not supposed to turn away business of the company, but it was not his duty to take it unless he got orders." If all the foregoing evidence is viewed in connection with the further undisputed facts, that the defendant rendered a bill to the dredging company for the services of the general manager, and of its employés, and for the use of the lighter, which has been paid, the jury would be justified in finding that at the time of the accident the defendant had undertaken the work. It also could be found that, if originally Campbell exceeded his au

216 Mass. 140, 103 N. E. 285, and cases cited; White v. Apsley Rubber Co., 194 Mass. 97, 99, 100, 80 N. E. 500, 8 L. R. A. (N. S.) 484; Dempsey v. Chambers, 154 Mass. 330, 332, 333, 28 N. E. 279, 13 L. R. A. 219, 26 Am. St. Rep. 249. Nor should the defendant,

[2] It is further pressed in argument that as matter of law the acts of the defendant's servants or agents in undertaking to raise the tug were unauthorized, and exceeded the scope of their employment. This question, however, was for the jury, who could find that when the tug reached the defendant's lighter the captain went aboard, saw the engineer and "man in charge whose name was Campbell," and told him that the super-thority, his acts were ratified. Hall v. Bates, intendent of the dredging company "had sent him over there * for Campbell to hoist * * the tugboat's stern out and get the line out of the wheel. * And on the evidence of the defendant's vice president and general manager, that his company had a running account with the dredg-acting with full knowledge of all the circuming company, and that when he first saw the tug he was engaged on other work "some four or five hundred feet away," "that what first attracted his attention was that they called to us and said they had a line on the wheel and wanted us to take it off," to which the witness replied "that he would as soon as he got through with this job, and said nothing more at that time," the jury further could find that the general manager knew the tug was at the lighter to have the line taken out, and did not refuse to render the services desired "as soon as he got through with this job," but gave no orders to the engineer

stances, be permitted to demand and receive the benefit of the transaction, and then turn around and repudiate its liability. Hanley v. Boston Elevated Railway, 201 Mass. 55, 57, 87 N. E. 197.

[7] The final inquiry whether there was any evidence of the defendant's negligence may be disposed of shortly. The jury on ample proof could determine that the hook attached to the block of the tackle holding the sling which had been passed under the stern was so worn, chafed and frayed that when subjected to the necessary strain it gave way, and that this condition could have

HALL PUB. CO. v. MacLAUGHLIN.

(Supreme Judicial Court of Massachusetts.

Suffolk. June 26, 1918.)

pellate division, such limitation is a necessary implication. It is contrary to fundamental principles of the administration of justice that the prevailing party may continue liti

1. COURTS 190(3) MUNICIPAL COURT gation when his opponent abides by an

RIGHT TO APPEAL-PREVAILING PARTY.

decision in his favor.
2. APPEAL AND ERROR

adverse decision. Therefore, this in sub

Though St. 1912, c. 649, § 9, does not ex- stance is an appeal from a decision permitpressly confine the right to appeal to the Supreme Judicial Court from the appellate divi- ting a plaintiff to amend the declaration. sion of the municipal court of the city of Boston Ample power is conferred upon courts to to parties aggrieved by the decision of the ap- grant leave to amend pleadings. Orders pellate division, the limitation is a necessary im- allowing such amendments ordinarily rest in plication, and defendant cannot appeal from a sound, judicial discretion and are not subject 959(1)-PLEADING to review. Lowrie v. Castle, 225 Mass. 37, 39, - DISCRETION OF 113 N. E. 206; Clark v. New Eng. Tel. & Tel. Co., 229 Mass. 1, 6, 118 N. E. 348. Ample power is conferred on courts to grant leave to amend pleadings, and orders allowing such amendments ordinarily rest in sound judicial discretion, and are not subject to review. 3 COURTS190(2)· MUNICIPAL COURTS "FINAL DECISION."

236(1) — AMENDMENTS COURT.

The order of the appellate division of the municipal court of the city of Boston, on report after verdict for defendant, giving plaintiff leave to amend a count of its declaration within ten days, and granting new trial conditionally on such amendments being made, otherwise dismissing the report, is not a "final decision" of the appellate division within St. 1912, c. 649, from which alone appeal lies.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Final Decision.]

Appeal from Municipal Court of Boston, Appellate Division.

Action in the municipal court of the city of Boston by the Hall Publishing Company against Waldo T. MacLaughlin, resulting in verdict for defendant. On report to the appellate division of the municipal court plaintiff was given leave to amend, and, conditionally on the amendment's being made, new trial was granted, and defendant appeals. Appeal dismissed.

[3] Moreover, this was not in any aspect a "final decision" of the appellate division, from which alone appeal lies. Real Property Co., Inc., v. Pitt, 120 N. E. 141.

Without intimating whether the ruling was right or wrong, the entry must be Appeal dismissed.

CHARLES v. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. June 26, 1918.)

1. MUNICIPAL CORPORATIONS 817(3)-PosITIVE ACTS OF CARE.

It was not necessary to show positive acts of care on the part of the wife riding with her her husband, but her due care might be gathered husband beyond relying in silence on the skill of from simple absence of fault under circumstances which fairly exclude the inference of negligence.

2. MUNICIPAL CORPORATIONS 762(1) -INJURIES FROM HOLE IN STREET.

A city, having dug a hole in its street by the tracks of a street railway, was primarily responsible for death of the wife of the driver of a horse-drawn runabout caused thereby; its liability under the statute being limited to $1,000. DEATH 7-DEATH BY WRONGFUL ACTVARIANCE IN PENALTIES.

E. M. Schwarzenberg, of Boston, for appel-3. lant. E. E. Wakefield, Jr., of Boston, for appellee.

RUGG, C. J. [1, 2] This action at law was commenced in the municipal court of the city of Boston. When it came on for trial the judge refused to grant two requests presented by the plaintiff for rulings of law, and found for the defendant. The case was taken to the appellate division, which granted leave to the plaintiff to amend its declaration within ten days, otherwise the report was to be dismiss ed. The defendant claimed an appeal before the expiration of ten days. The defendant was not aggrieved by so much of the order of the appellate division as directed that the report be dismissed if the plaintiff did not avail itself of the privilege granted it to amend the declaration. If the plaintiff does not SO amend, then final judgment will be entered in favor of the defendant. Manifestly he could not appeal from a decision in his favor. Although St. 1912, c. 649, § 9, does not expressly confine the right to appeal to this court to parties aggrieved by the decision of the ap

Liability for causing the death of a human being by negligence under all the statutes is in different classes of corporations and persons. the nature of a penalty, varying in amount with 4. STREET RAILROADS 86(1) GUARDING EXCAVATION-ULTRA VIRES.

A street railway, where the city made a hole in the street extending under its tracks, had sufficient interest in the matter of guarding the excavation, in connection with its own business of transporting passengers, to justify it in assuming the duty of guarding it and protecting the public.

5. DEATH 95(1) DEATH BY WRONGFUL ACT-PENALTY.

The undertaking of a street railway to guard the city's excavation by its track not being ultra vires, for any act of negligence in guarding the excavation, causing death, it was liable to the statutory penalty imposed upon it for such an offense, not being limited to the penalty which might have been imposed on the city. 6. DEATH 104(2)-DEATH BY WRONGful

ACT-INSTRUCTION.

In an action against a street railway for death of a wife riding with her husband, who drove their horse-drawn runabout into an excavation in the street, an instruction that if the jury found the wife's death was hastened by

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the accident plaintiff had sustained the burden ( driving the horse in a street railway track, of proving her death was caused by the acci- trotting at an estimated speed of from five to dent, within the meaning of the statute, etc., six miles an hour, and there was some eviwas not erroneous as permitting recovery, though the wife's confinement to bed and consequent weakness were not the result of the accident as their proximate cause.

7. TRIAL 339(4)—VERDICT-FIXING DAMAGES AFTER SEPARATION.

dence tending to show that there was no easily visible indication of the excavation between the rails of the track into which the horse fell. There was no direct testimony as to the conduct of the wife immediately before the accident other than that she was sitting on the left side of the vehicle. That was where she ought to have been sitting. She was herself an experienced driver of horses, she was with her small daughter in a vehicle driven by her husband amid a more or less distracting series of obstructions on a city street at night. The judge instructed the jury that want of due care on the part of the husband would be imputed to the wife. There

In an action against a street railway for death of a wife, and for injuries to her husband and daughter in the same accident, where, when the jury had answered that the railway's servants were negligent and plaintiff was entitled to recover for the conscious suffering of the wife, every element necessary to require them, under the charge, to assess damages for her death had been found, and the only thing they had not found was the amount of damages or penalty, the judge, having sent the jury out to ascertain and report whether any member had talked with anybody since their separation on original retirement, receiving negative answer, properly sent them out again for further considera- was positive evidence tending to show that tion of the question of the amount of plaintiff's he was in the exercise of due care. The verrecovery for the death of his wife, and the verdict of the jury under such instructions must dict returned was valid, though the jury had originally gone out on Thursday, had separated at 11 o'clock that night, and had not reconvened until the following Monday morning, when the matters stated above occurred; for further consideration by a jury after a separation is not necessarily fatal.

Exceptions from Superior Court, Suffolk County; James H. Sisk, Judge.

Action by Owen C. Charles, administrator of the estate of Emma M. Charles, against the Boston Elevated Railway Company. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

Hurlburt, Jones & Hall and Benjamin A. Lockhart, all of Boston, for plaintiff. E. P. Saltonstall and C. W. Blood, both of Boston, for defendant.

RUGG, C. J. This is an action of tort. The declaration was in five counts, three of which are material, one to recover for the personal injuries, one for the property damage, and one for the penalty for causing the death of the plaintiff's intestate, who was his wife. The plaintiff and his wife were traveling together with their daughter, then about ten years old, on Washington street in Dorchester, in an open runabout driven by the plaintiff, who was a livery stable keeper, when the horse went into an excavation in the street and the intestate was thrown upon the pavement, receiving injuries as a result of which it might have been found that she died several months later.

be taken to establish due care on his part. Such conclusion was not unwarranted. Hurley v. Boston, 202 Mass. 68, 88 N. E. 586. There is nothing in the record which requires the conclusion that she ought as a reasonably careful person to have done anything more than trust in silence to the experienced skill of her husband. Further positive acts of care on her part need not be shown, but may be gathered from simple absence of fault under circumstances which fairly exclude the inference of negligence. Maguire v. Fitchburg Railroad, 146 Mass. 379, 382, 15 N. E. 904; Duggan v. Bay State Street Railway Co., 119 N. E. 757; Shultz v. Old Colony Street Railway Co., 193 Mass. 309, 79 N. E. 873, 8 L. R. A. (N. S.) 597, 118 Am. St. Rep. 502, 9 Ann. Cas. 402; Bullard v. Boston Elevated Railway, 226 Mass. 262, 264, 115 N. E. 294.

But

[2-5] The defendant's liability on the death count was not limited to one thousand dollars. The excavation which caused the injury was made by the city of Boston. since it extended under the tracks of the defendant, the latter for its convenience in operating its cars maintained a watchman to guard so much of the excavation as was between the rails, and to prevent travelers from falling into it. The city was primarily responsible, having dug the hole in the street. Its liability in case action had been brought against it would have been limited under the statute to one thousand dollars. But liabil

[1] There was evidence sufficient to sup-ity for causing the death of a human being port a finding of due care on the part of the by negligence under all our statutes is in the intestate. She was traveling with an experi- nature of a penalty. It varies in amount enced horseman in the evening on a city street. with different classes of corporations and perConfessedly there had been considerable dig- sons. Brooks v. Fitchburg & Leominster St. ging in different parts of the street and there Ry., 200 Mass. 8, 86 N. E. 289. The defendant were several piles of dirt. Two watchmen at had sufficient interest in the matter of guardleast were in the neighborhood, whose duty ing this excavation in connection with the it was to guard the places of danger and to maintenance of its own business of transportgive warning to travelers. There was con- ing passengers to justify it in assuming the flicting testimony as to the number and posi-duty of guarding it and protecting the public tion of lights in the street. The plaintiff was from its dangers. Such an undertaking was

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