So ordered.

CALLAHAN v. DICKSON.

(Supreme Judicial Court of Massachusetts. Middlesex. Jan. 3, 1912.)

LANDLORD AND TENANT (§ 169*) - INJURIES FROM DANGEROUS OR DEFECTIVE CONDITION -DUE CARE-QUESTION FOR JURY.

Though a child of a tenant had previous knowledge of the defective condition of a walk on the premises, whether she exercised due care for her protection was a question for the jury.

[Ed. Note. For other cases, see Landlord and Tenant, Dec. Dig. § 169.*]

Exceptions from Superior Court, Middlesex County; William Schofield, Judge.

Action by M. T. Callahan against A. B. Dickson. From a judgment for plaintiff, defendant excepts. Exceptions overruled.

The plaintiff claims damages for a personal injury received as a result of her foot being caught in a hole in a plank walk. This walk was in a passageway called "Union Place" running from the defendant's tenement houses to Union street. Union Place was the sole means of access to the tenements from any highway.

Albin L. Richards, for plaintiff. Herbert S. Riley, for defendant.

SHELDON, J. The jury could find that the defendant leased the tenement on Union Place to the plaintiff's father, with the right to use that passageway as the sole approach to and from the tenement, that the passageway remained in the sole control and charge of the defendant, and that she assumed the

Mass. 503, 92 N. E. 707, 138 Am. St. Rep. 405; Miles v. Janvrin, 200 Mass. 514, 86 N. E. 785; Domenicis v. Fleisher, 195 Mass. 281, 81 N. E. 191; Andrews v. Williamson, 193 Mass. 92, 78 N. E. 737, 118 Am. St. Rep. 452; Leydecker v. Brintnall, 158 Mass. 292, 33 N. E. 399. There was also evidence that the defendant recognized this duty (Nash v. Webber, 204 Mass. 419, 425, 90 N. E. 872), and caused some repairs to be made on the walk or a new walk to be laid down, whether be fore or after the letting to the plaintiff's father may not be wholly clear on the evidence.

There was evidence also that since the letting the walk was allowed to become defective and dangerous, in such a manner as to warrant an inference of negligence on the And there was evipart of the defendant. dence of due care on the part of the plaintiff. Her prior knowledge of the defect was a circumstance to be considered, but it was not conclusive against her as matter of law, though the jury might have found it to be so in fact. Page v. Weymouth, 207 Mass. 325, 93 N. E. 644; Frost v. McCarthy, 200 Mass. 445, 448, 86 N. E. 918. For the same reasons it could not be ruled that she had assumed the risk of injury from the defect even if this defense was open under the answer.

It follows that each one of the defendant's requests was rightly refused.

A different question would have been presented if it had appeared that this passageway, though a private way, had been wrought into the similitude of a public street, and if there had not been evidence that the defendant had assumed a duty in regard to it. We express no opinion upon such a question. Exceptions overruled.

MURPHY v. FRED T. LEY & CO.,
Incorporated.

(Supreme Judicial Court of Massachusetts.

Worcester. Jan. 1, 1912.)

1. NEGLIGENCE (§ 136*)-ACTION-QUESTION FOR JURY-RELATION OF DEFENDANT TO CAUSE OF INJURY.

In an action for injuries resulting from plaintiff's horse running against some wires stretched across the road and throwing plaintiff to the ground, where plaintiff's own due care was shown, as well as negligence on the part of the person who strung the wires across the road, held, that the question of whether the negligence was that of defendant was for the jury.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] 2. EVIDENCE (§ 244*)-DECLARATIONS-STATEMENTS OF SUPERINTENDENT.

Declarations of defendant's superintendent when he came to plaintiff's house during his illness, not made in the performance of his duty, were properly excluded in an action for injuries.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 916-936; Dec. Dig. § 244.*]

Report from Superior Court, Worcester County; Marcus Morton, Judge.

Action by Daniel Murphy against Fred T. Ley & Company, Incorporated. Verdict di

rected for defendant, and case reported to the Supreme Court. In accordance with the report, judgment ordered for plaintiff.

George E. O'Toole and John H. O'Brien, for plaintiff. Parker & Milton, Chas. C. Milton, and Frank L. Riley, for defendant.

was around there while the work was being done, instructing the men what to do: that the teams and tool boxes were marked "Fred T. Ley Construction Co.," "F. T. Ley Construction Co.," "Fred T. Ley Company," "F. T. Ley," "Fred T. Ley," as witnesses variously testified; and that no teams or tools were there with any individual name other than Fred T. Ley upon them. It is true, as argued by the defendant's counsel, that if the evidence be taken strictly, there is no testimony that the corporate name of the defendant, "Fred T. Ley & Co., Inc.," appeared on any tool box or wagon, and if nothing further appeared to connect the defendant with the work we should hesitate to say that the plaintiff had sustained the burden of proof. But an examination of the record shows that in the discussion upon the admissibility of declarations made by Mr. Daly, it was understood and assumed by the court and by both counsel that Daly was referred to as superintendent of the defendant corporation, although in terms he was mentioned as "superintendent of the Fred T. Ley Company." No question was raised of misnomer or of the identity of the defendant under different names, but only as to the authority of this superintendent of the defendant company to affect his employer by his statements.

Even so construing the exceptions the evidence presented to establish negligence on the part of this defendant was meagre. But with the inferences that might be justifiably drawn therefrom, and not explained or controlled by facts that necessarily would be in the possession of the defendant, we think it was sufficient to entitle the plaintiff to go to the jury. Smith v. Paul Boyton Co., 176 Mass. 217, 57 N. E. 367; Norris v. Anthony, 193 Mass. 225, 79 N. E. 258: Bagley v. Wonderland Co., 205 Mass. 238, 91 N. E. 317.

There was ample proof of the plaintiff's due care, and of negligence on the part of the person engaged in stringing the wires across the highway. The question is whether there was evidence for the jury that the work was being done by the defendant.

[1] The jury would be warranted by the testimony in finding that the work of stringing wires in that neighborhood had been going on for some days; that one Daly, designated by the plaintiff's counsel as the superintendent of the Fred T. Ley Company,

[2] The declarations of the superintend

during his illness, were properly excluded. They were not made in the performance of his duty and therefore were not binding upon the defendant. McKinnon v. Norcross, 148 Mass. 533, 20 N. E. 183, 3 L. R. A. 320; Bachant v. Boston & Maine R. R., 187 Mass. 392, 73 N. E. 642, 105 Am. St. Rep. 408; McKenna v. Gould Wire Cord Co., 197 Mass. 406, 83 N. E. 1113.

In accordance with the report judgment is to be entered for the plaintiff in the sum of $400; and it is: So ordered.

eager to board the car. When she reached the step to the car platform the weight of this mass of people had so increased, that she was crowded and whirled over into the pit by contact with passengers who could not themselves resist the pressure. It might have affected the weight of this evidence if the defendant's servants whose duty it was to prevent passengers from being pushed and crowded, or injured, had aided her, but she testified, that the conductor was absent, and no measures were taken to protect her from this increasing danger to which she was involuntarily exposed. It is clear from this testimony, that the defendant's request, that a verdict should be ordered for it could not be granted. The system of transportation was subject to its control, and in the discharge of its obligations as a carrier the jury could further find upon the evidence that the congestion of passengers resulting from their number and eagerness to board cars waiting for them, was not an extraordinary circumstance, but was rather a condition which should have been foreseen from the nature of the business, and provided for by the adoption of reasonable expedients. It follows, that the physical harm suffered by the plaintiff arose through the defendant's negligence in permitting a combination of passengers to press violently upon her, and while not an assault, the wrong finally inflicted was none the less a violation of its duty, for which compensation in damages can be recovered. Kuhlen v. Boston & Northern Street Railway, 193 Mass. 341, 79 N. E. 815, 7 L. R. A. (N. S.) 729, 118 Am. St. Rep. 516; Magee v. New York, New Haven & Hartford Railroad, 195 Mass. 111, 80 N. E. 689; Jackson v. Old Colony Street Railway, 206 Mass. 477, 92 N. E. 725, 30 L. R. A. (N. S.) 1046; Glennen v. Boston Elevated Railway, 207 Mass. 497, 93 N. E. 700, 32 L. R. A. (N. S.) 470.

Exceptions overruled.

LITTLE et al. v. CITY OF NEWBURYPORT. (Supreme Judicial Court of Massachusetts. Essex. Jan. 2, 1912.)

1. TAXATION (§ 241*) — EXEMPTIONS "CHARITABLE CORPORATION" YOUNG MEN'S CHRISTIAN ASSOCIATION-"BENEVOLENT ASSOCIATION."

A Young Men's Christian Association was incorporated for "the improvement of the spiritual, mental, social and physical condition of young men," with a membership made up of active members with the exclusive right to vote and hold office, of associate members enjoying all other privileges, and limited members, not permitted to use the gymnasium and other means of amusement, together with sustaining members, and unlimited members, who paid certain fees annually for privileges; there being no religious test applied to associate members. The association work included serv

ices in different schoolhouses and churches at its own expense, educational classes, charging a small fee, but never conducted at a profit, classes in rowing, swimming, etc.; and it also maintained a reading room open to the public, and held meetings for social purposes, It depended for suppublic receptions, etc. profit from its work, had no capital stock, and port mainly upon subscriptions, derived no no paid officers, except a secretary. Held, that the association was a benevolent or charitable cl. 3, and that funds held in trust for it were corporation, within St. 1909, c. 499, pt. 1, § 5, exempt from taxation.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 389-393; Dec. Dig. § 241.*

For other definitions, see Words and Phrases, vol. 1, pp. 755-757; vol. 2, pp. 1074-1088; vol. 8, p. 7600.]

2. CHARITIES (§ 1*) WHAT CONSTITUTESPURPOSE.

A charity, in the legal sense, is not confined to mere almsgiving or the relief of pov erty and distress, but has a wider signification which includes the improvement and promotion of happiness.

Cent. Dig. § 1; Dec. Dig. § 1.* [Ed. Note.-For other cases, see Charities,

For other definitions, see Words and Phrases, vol. 2, pp. 1074-1088; vol. 8, p. 7600.] 3. CHARITIES (§ 21*)—CERTAINTY AS TO BENEFICIARIES-MEMBERSHIP IN YOUNG MEN'S

CHRISTIAN ASSOCIATION.

While the element of indefiniteness in the recipients of a bounty is essential to the character of a public charity, the fact that some of the benefits of a Young Men's Christian Association are afforded only to its members is not material, as the requirement is met by open to all, on payment of a moderate fee, the fact that the privilege of membership is without any other restrictions than those as to age and moral character.

[Ed. Note.-For other cases, see Charities, Cent. Dig. §§ 44-50; Dec. Dig. § 21.*] 4. CHARITIES (§ 1*)-OFFICERS AND ELECTORS -YOUNG MEN'S CHRISTIAN ASSOCIATION.

That the right to vote and hold office in a Young Men's Christian Association was limited to active members, eligible only if above the age of 15 years and members in good standing of a Protestant Trinitarian church, is immaterial to the association's character as a charity, especially where it could be found that its dominant purpose was its work for the public good; and that the work done for its members was the means to this purpose, rather than the end.

[Ed. Note. For other cases, see Charities, Dec. Dig. 1.*]

5. CHARITIES (§ 1*) - YOUNG MEN'S CHRISTIAN ASSOCIATION - PAYMENT FOR BENEFITS.

That a Young Men's Christian Association requires the payment of annual fees for benefits is not decisive against its character as a charity.

[Ed. Note.-For other cases, see Charities, Dec. Dig. § 1.*]

6. TAXATION (§ 241*) - EXEMPTION-YOUNG MEN'S CHRISTIAN ASSOCIATION-FUND IN POSSESSION OF TRUSTEES.

Under St. 1909, c. 490, pt. 1, § 5, cl. 3, which exempts the personal property of literary, benevolent, charitable, and scientific institutions from taxation, a fund for the sole benefit of a Young Men's Christian Association

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 389-393; Dec. Dig. § 241.*]

Exceptions from Supreme Judicial Court, Essex County.

Action by Henry B. Little and others, as trustees of a fund for the benefit of the New. buryport Young Men's Christian Association, against the City of Newburyport to recover a tax. The court refused to rule that the plaintiffs could not maintain the action, and the defendant excepted. Overruled.

Nathaniel N. Jones and Ernest Foss, for plaintiffs. Arthur Withington, for defendant.

SHELDON, J. It may be scarcely possible under our statute (R. L. c. 12, § 5, cl. 3; St. 1909, c. 490, p. 1, § 5, cl. 3) to lay down a general rule as to the character of the Young Men's Christian Associations which have now become so numerous. In each case the question will be whether the institution is in its character literary, benevolent, charitable or scientific within the meaning of those words in the statutes; and the answer will depend upon the language of its charter or articles of association, constitution and by-laws and upon the objects which it serves and the method of its administration.

[1, 2] The purpose of this Association is "the improvement of the spiritual, mental, social and physical condition of young men." The provisions of its constitution and by-laws, so far as they are shown, are designed and adapted to accomplish that purpose. Its membership is made up of active and associate members. Any man above the age of fifteen years who is a member in good standing of a Protestant Trinitarian church may become an active member, and no others have the right to vote or hold office. Any man above the same age of good moral character may become an associate member and enjoy all other privileges. Each of these classes is subdivided into sustaining members, those who contribute at least ten dollars a year; unlimited members, who pay five dollars a year and have all the privileges of the Association; and limited members, who are not allowed to use the gymnasium and some other means of amusement of the Association. Boys in the public and parochial schools are allowed full privileges upon payment of a smaller annual fee. There is no religious test applied to the associate members, and these include Catholics, Jews, and all shades of religious preferences among Protestants, while many of them have no religious preference at all.

The Association has a definite policy of religious work, which is stated with some

fined to the members, and includes services in different school-houses and churches. It is an expense to the Association.

It carries on considerable educational work, having maintained classes in fifteen or In these a small twenty different studies. fee is charged to pay for the hire of the teacher, the deficit being made up by the Association. This work also is not confined to the members. It is done usually at a loss, never with a profit. There was testimony that "the Association has tried to do more educational work than was apparently demanded. For instance, we have tried to do work for the shoe workers. We have had representatives from the silver factory and from all the shoe shops, and have had talks with them to try and improve their conditions. The Association is always willing to do that work if they can get four, five or six men to join the classes. not been a demand for the bookkeeping classes and writing classes and English classes. We have considered that every year, and provided the facilities, but have not had the The Association has conducted response." classes in English for the Polish residents of Newburyport, both men and women. The city furnishes wardrooms for this purpose, and all Poles are invited to come. They are taught by volunteers, and no fee is charged to the pupils. They are also given talks on hygiene, civics, government, history and elementary mathematics; are given advice on the way to become citizens and upon other matters. There is also teaching in physical education, rowing, swimming, etc.

* * * There has

A reading room is maintained, which is open to the public.

There are also held meetings for social purposes, entertainments and games, public receptions, and sometimes shop receptions, wherein men from different factories are entertained without cost to them.

Some work is done which is charitable in the popular meaning of that word, mainly to assist young men, both members and nonmembers.

None of the work is done for profit. The Association has no capital stock. None of its officers except its secretary receives any compensation. It depends for the support of its work mainly upon subscriptions.

It will be seen that this is not an almsgiving organization. But that is not decisive of the question raised. Charity in the legal sense "is not confined to mere almsgiving or the relief of poverty and distress, but has a wider signification, which embraces the improvement and promotion of the happiness of man." Braley, J., in New England Sanitarium v. Stoneham, 205 Mass. 335, 342, 91 N. E. 385, 387. The Association carries on a work which is intended and adapt