(181 Mass. 365) BROWN V. NEW YORK, N. H. & H. R. (Supreme Judicial Court of Massachusetts. 1. In an action for injuries received on alighting at a station from a train after it had started, it was shown that plaintiff had alighted there every day for 35 years, and that it was daylight at the time of the accident. Plaintiff testified that it was a dark and drizzling evening, that he did not look to see if the train was moving, that his sight was good, and that there was nothing to distract his attention. There were a truck and a lamp on the platform within the range of his vision, which would have shown him that the train was in motion, if he had looked. Held, that plaintiff could not recover, because of a lack of due care. 2. In an action against a railroad for injuries received while alighting at a station from a train after it has started, the burden is on plaintiff to show that he was carefully trying to alight safely. Exceptions from superior court, Suffolk county; John Hopkins, Judge. Action by Brown against the New York, New Haven & Hartford Railroad Company. Judgment for defendant, and plaintiff brings exceptions. Exceptions overruled. Foster Rogers, for plaintiff. Charles F. Choate, Jr., for defendant. KNOWLTON, J. The plaintiff on August 10, 1899, took the defendant's train from Boston to North Abington, where he arrived at 45 minutes after 5 o'clock in the afternoon. He started to alight from the train, and, on reaching the door of the car, discovered that he had left his umbrella in his seat, and went back for it. He found that it had been taken out by his friend at the other end of the car, and, returning to the door from which he had gone back, he stepped out upon the platform of the car, and got off after the train had started. He fell, and was injured, and now seeks to recover compensation for his injury. We do not consider the question whether there was negligence on the part of the brakeman or conductor in allowing the train to start before the plaintiff had alighted, for we are of opinion that there was no evidence that he was in the exercise of due care in getting off as he did. It is a general rule that a passenger who attempts to get on or off a railroad train while it is in motion Merritt is not in the exercise of due care. v. Railroad Co., 162 Mass. 326, 38 N. E. 447, and cases there cited. The question in a case like the present is whether there is evidence that takes it out of the general rule. The plaintiff was very familiar with the place. For nearly 35 years he had traveled back and forth by train nearly every day between North Abington and Boston. When he alighted there was no person in his way, and nothing to obscure his vision. car. Although he says it was a dark, drizzling evening, daylight had not gone, for a quarter before 6 o'clock on August 10th is a long time before sunset. There was a kerosene light 10 or 12 feet from where he stepped off, under the roof which covered the platform, and he testified that he could have seen it if he looked around. There was also a truck on the platform nearly opposite the place where he stepped off, which he saw while he was on the platform of the He testified that his sight was good, and there was nothing to distract his attention as he was getting off. He also testified that he did not look to see if the train was moving; that he did not look at all, but got off the train without looking. If the plaintiff knew that the train was moving when he stepped down from it, he was not in the exercise of due care, and he cannot recover. If he did not know it, there is no evidence that he was in the exercise of due care in getting off without knowing it. The evidence tends to show that, if he had paid any attention to the familiar surroundings, he could not have failed to notice that the train had started. To say nothing of the platform and other objects, the truck which he saw while he was on the platform of the car would have shown him that the train was in motion, if he had looked. So would the kerosene light. But he chose to get off without looking or paying attention to the train or his surroundings. The circumstances disclosed by the evidence have no tendency to show that he would have failed to discover the movement of the train if he had been in the exercise of ordinary care. Indeed, they indicate that the accident happened because he used no care. While the burden was on him to prove that he was carefully trying to alight safely, he fails to show that he was giving any attention to his surroundings. The case is not like Brooks v. Railroad Co., 135 Mass. 21. It differs materially in its facts from Merritt v. Railroad Co., 162 Mass. 326, 38 N. E. 447. In principle, it is more like England v. Railroad Co., 153 Mass. 490, 27 N. E. 1. Exceptions overruled. Where adjoining lot owners both hold under deeds which provide that for a certain period no building shall be erected within 10 feet of the street, and one of such owners, after the time has largely expired, unintentionally begins the erection of a building within the restricted space, and has it partially completed before the other owner makes any objection, he will not be enjoined at the suit of the latter, or be required to move or alter his building, where it further appears that the other owner has also unintentionally violated the restriction, and that the latter's building is nearly, if not fully, as objectionable as defendant's. Appeal from superior court, Suffolk county. Bill by Elizabeth and Julia Scollard against Frank Normile, otherwise known as Francis Normile. Decree dismissing the bill, and complainants appeal. Affirmed. The complaint alleged: That complainants owned certain real estate by virtue of a deed which contained the following restriction: "The premises are hereby conveyed subject to the restriction that for the period of twenty years from January 1, 1890, no building maintained or erected on said parcel shall be placed within ten feet of the line of said streets, and the grantor hereby agrees to hold, and, when he conveys, to convey, subject to the same restriction, the adjacent house lot fronting * * * on said Calumet street." That respondent owned certain real estate, being the same parcel of land referred to in the complainants' deed above mentioned as "the adjacent house lot, fronting on said Calumet street," which property he acquired by deed containing the following restriction: "All houses erected or maintained on said parcel shall set back ten feet from said street line;" the above-mentioned Calumet street being the street referred to. That respondent, notwithstanding such restriction, had begun to erect, and was erecting, a building within the reserved space. The bill prayed for an injunction, and that respond. ent be required to move or alter his building. The following is the statement of facts made by the court: "(1) The respondent's deed of the premises in question is dated April 25, 1896, and contains the following restrictions, among others: 'All houses erected or maintained on said parcel shall set back 10 feet from said street line.' In July, 1900, the respondent began the erection of a building extending in part within said restricted space. (2) At or about the time the respondent began to build, and several times thereafter, and before October 20, 1900, the complainants, or one of them, orally warned the respondent that he must keep outside the restricted space of 10 feet, and claimed that he was inside it. On October 20, 1900, notice in writing by the complainants' attorney was given the respondent to the effect that his building was being erected within said reserved space, and that the complainants would not permit it, and this was the first written notice respondent had that he was within the reserved space. I find that the encroachment was not willful. The architect and builder were instructed by the defendant to keep outside the reserved space. One Badger, a civil engineer, established the street line for Normile August 4th. October 15th he made a plan of the land for the complainants, which may be referred to. This plan was deferred to the complainants' attorney October 20th. (3) The foundation of said building was erected early in July. Framing was begun August 27th; October 20th the house was boarded and roofed in, and all clapboarded, except a small part over the front door. The studding was all set, and the inside lathed. The respondent continued to finish the interior after the notice of October 20th was sent. The first letter sent by complainants' attorney to respondent was dated October 17, 1900, in which no mention was made that the building was within the 10-feet space. It referred to repairs of complainants' fence, cleaning yard, and painting house. Respondent offered to make such repairs as were made necessary by him, but complainants refused anything less than removal of the respondent's building. (4) The complainants' deed of their lot, which was situated at the corner of Calumet and Hillside streets, adjacent to the respondent's lot on Calumet street, is dated May 16, 1893, and contains this restriction: 'No building maintained or erected on said parcel shall be placed within ten feet of the line of said streets [Calumet and Hillside streets], and the grantor hereby agrees to hold, and, when he conveys, to convey, subject to the same restriction, the adjacent house lot fronting on said Hillside street, and the adjacent house lot fronting on said Calumet street.' The complainants immediately began to build, and completed their house, in the fall of 1893, in which they have lived ever since. Their architect and builder were both instructed to erect their house ten feet back from said streets, and Normile's architect and builder were instructed to the same effect. but in fact the complainants' house is situated within the said restricted space of ten feet. The complainants, however, did not know that their house encroached upon the reserved space of 10 feet until after bringing their action, and have acted in good faith. The plans of the premises used at the hearing, the deeds above referred to, the photographs, and the letters of October 20, 1900. and October 17, 1900, may be referred to as part of this finding." William P. Hale, for plaintiffs. Patrick O'Loughlin, for respondent. HAMMOND, J. Upon the facts found by the master and those shown on the plan, there is no equity in the case of the plaintiffs. Both parties have violated the restric tions, and in each case the violation was not willful, but unintentional. In view of these circumstances, and of the kind and degree of the respective violations, and the short time remaining of the life of the restrictions, it would be plainly inequitable to compel the defendant to move or alter his building at the request of the plaintiffs, the situation of whose building, so far as respects the restrictions, is nearly, if not fully, as objectionable as that of the defendant. See Bacon v. Sandberg, 179 Mass. 396, 60 N. E. 936, and authorities cited therein, as to the principles which should govern in such a case. Decree affirmed. (181 Mass. 543) DALY et al. v. DEMMON. (Supreme Judicial Court of Massachusetts. Suffolk. May 23, 1902.) LANDLORD AND TENANT—AGREEMENT TO RE PAIR-BREACH-EVIDENCE. 1. In an action by a tenant against the land. lord for breach of an express agreement to put the leased premises in tenantable repair it was proper to instruct that, in order to recover, the plaintiff must prove the express contract upon which he relied, and that in the absence of an express contract there is no liability upon a landlord to make repairs, or to put a tenement in a proper condition for occupancy. 2. In an action by a tenant against the landlord for breach of an agreement to put the premises in ordinary tenantable repair it was proper to allow a building inspector who had visited the building to be asked as to their condition as to protection for tenants. 3. Where, after a question was asked, a colloquy arose between counsel as to the admissibility of the evidence sought, that witness, whose attention had been distracted, did not make a very direct answer was not prejudicial. Exceptions from superior court, Suffolk county; John H. Hardy, Judge. Action by Patrick J. Daly and others against Daniel L. Deinmon. From a judg ment for plaintiffs, defendant brings exceptions. Exceptions overruled. I. R. Clark, for plaintiffs. John T. Wilson, for defendant. HAMMOND, J. This is an action to recover damages for the breach of an alleged express agreement to put in ordinary tenantable repair, so that the same could be used for light manufacturing purposes, certain real estate let by the defendant to the plaintiff. The evidence as to whether such an agreement was made was conflicting. 1. As to the ruling requested at the close of the case, it is sufficient to say that, al though it was not given in the terms requested, it was give in substance. The jury were expressly told that, in order to recover, the plaintiff must prove, by a fair preponderance of the evidence, the express contract upon which he relied; and that, in the absence of an express contract, there is no liability upon a landlord to make repairs, or to put a tenement in a proper condition for occupancy. The court even explained the rule by an apt illustration. Upon this point the charge was clear, accurate, and unusually full. 2. One Shaw, called by the plaintiff, after stating that in the performance of his duties as a building inspector in the city of Boston he visited the tenement for the purpose of seeing whether it was occupied, and, if so, whether the occupants needed any protection, was asked to state what was the condition as to protection for tenants in the building, and what, if anything, was required, and answered finally that "one purpose would require one provision, another purpose would require another." To this question and answer the defendant except The ed. The question was certainly proper. condition of the premises for any purpose was material on the question of damages, if for no other reason. Between the time the question was first put and the time of the answer, a colloquy as to its admission took place between the counsel and the court, by which the attention of the witnesses apparently was somewhat distracted, and so the answer was not very direct. is plain that it was intended simply as a preliminary statement, and one cannot con ceive how it could in any way have been prejudicial to the defendant. Exceptions overruled. It (181 Mass. 480) ROCHE v. LOWELL BLEACHERY. (Supreme Judicial Court of Massachusetts. Middlesex. May 22, 1902.) INJURY TO SERVANT-SUPERINTENDENT NEGLIGENCE. Plaintiff ran a machine for defendant, certain parts of which became loose, and to adjust them it was necessary for him to stop the machine, and go to the floor above, out of sight of the machine. While he was at work on the upper floor, the superintendent set the machine running, catching plaintiff in the shafting and injuring him. Rev. Laws, c. 106, § 71, cl. 2, provides that, if personal injury is caused to an employé, who is in the exercise of due care, by the negligence of one exercising superintendence, the employé shall have the same right of action against the employer as if he had not been an employé. Held, that the superintendent was performing an act of superintendence in starting the machine, and for his negligence plaintiff cou'd recover. Exceptions from superior court, Middlesex county; John H. Hardy, Judge. Action by one Roche against the Lowell Bleachery. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled. Chas. W. Bartlett, Elbridge R. Anderson, and John P. Feeney, for plaintiff. George F. Richardson, for defendant.. HOLMES, C. J. This is an action of tort under the employer's liability act, now Rev. Laws, c. 106, § 71, cl. 2, to recover for personal injuries alleged to have been caused to the plaintiff, an employee, by the negligence of a superintendent, one Royer. It is not disputed that the plaintiff was using due care, or that the act which caused the injury was done by a person whose sole or principal duty was that of superintendence, or that there was evidence that it was negligent; the only question argued on the exceptions is whether there was any evidence that that specific act was an act of superintend ence. The plaintiff ran a washing machine for the defendant. In connection with this machine were certain cylinders called "binders," which revolved and dragged the cloth along as it came through the plaintiff's machine. These binders frequently became loose, and it was the plaintiff's duty to tighten them. In order to do so he had to stop his machine and go up to another floor out of sight of the machine. At the time of the accident the binders had become loose and the plaintiff was tightening them in this way, having first stopped his machine, when the superintendent came along and set the machine running, by reason of which the plaintiff was caught in the shafting above. It is well understood that an employer is not liable for every act done by a person engaged in superintendence, even if done to help in carrying out an order which the latter himself has given, and that different minds may differ as to where the line shall be drawn. Joseph v. George C. Whitney Co., 177 Mass. 176, 177, 58 N. E. 639. But we are of opinion that the jury was warranted in finding if not bound to find for the plainuff in this case if it found the facts to be as the plaintiff contended. The negligence, if there was any did not consist in the mechan:al details of carrying out a proper order; it consisted in setting the machine in motion it that time. If the superintendent had told another workman to start it up, probably the case would not be here. It is true, perhaps, that that could not be accepted as a universal test, because often the negligence is due to the consciousness of the party not having been directed to the point of complaint, which the hypothesis of a direction assumes it to have been. But the test seems to be of use when, as here, the precise object of the superintendent's conception was improper. In such a case the proximity between the brain that conceived and the subordinate ganglion that carried out the thought seems not to be a ground of exoneration. See O'Brien v. Look, 171 Mass. 36, 50 N. E. 458. Supposing the order to have been given. it would have been of sufficient importance and would have risen enough above merely mechanical execution of the work that might have come from any workman to be matter of superintendence. Indeed one might say shortly that except as superintendent Royer had no business to meddle with the machine. Exceptions overruled. (181 Mass. 474) LANGLEY v. WHEELOCK et al. (Supreme Judicial Court of Massachusetts. Middlesex. May 22, 1902.) MASTER AND SERVANT-ASSUMPTION OF RISK -DANGERS INCIDENT TO THE SERVICE. 1. Where it was the regular custom of iron merchants to keep their stock of metal bars standing against the walls of their store, between racks made of pegs set in the walls, a servant who was familiar with this custom assumed the dangers incident thereto. 2. The servant assumed, also, the risk of the falling of a metal bar which was placed in a rack wherein there was not sufficient room for it, where there was no evidence as to what made the bar fall, and the only evi dence of negligence was that half of the bar stood out beyond the ends of the pegs constituting the rack. Exceptions from superior court, Middlesex county; Edgar J. Sherman, Judge. Action by one Langley against one Wheelock and others. Judgment for defendants, and plaintiff excepts. Exceptions overruled. Wm. B. Sprout and Geo. P. Beckford, for plaintiff. J. P. Tucker and D. L. Smith, for defendants. MORTON, J. This is an action of tort for personal injuries received by the plaintiff while in the employ of the defendants in their store in Boston. At the conclusion of the plaintiff's evidence, the court directed a verdict for the defendants, and the case is here on the plaintiff's exception to that ruling. The defendants are in the steel and iron business, and keep in their store large quantities of steel, the greater part of which is in bars of different lengths, varying from au eighth of an inch to 8 inches in diameter. Around the store are racks, in which the steel is kept. The racks are about 4 feet from the floor, and are made by putting pins through planks which run round the sides of the store. Some of the pins are made of wood, and some of iron. The bars stand ou the floor, leaning against the walls, in these racks. The plaintiff was injured by the falling of a bar of steel, about 9% feet long and inches in diameter, and weighing about 420 pounds, which stood in one of these racks, with another bar of similar size and weight, leaning against the wall. The pins to this rack were of oak, and about an inch in diameter, and were 5/16 inches apart. They were 4 feet 5 inches from the floor, and from the wall to the outer ends of them it was 13/16 and 14 5/16 inches, respectively. The inner bar leaned against the wall, and from the wall to its outside base was 154 inches. The top of the outer bar rested against the inner one, and from the wall to the outside of its base was 22 inches. These bars had stood in the same place and position for about a month. Before that they had laid on the floor. There was evidence which, perhaps, would justify a finding that they were placed in the rack by the direc tion of a Mr. Stimpson, the manager of the defendants' store. The plaintiff had worked in the store as porter and shipper for about two years before the accident, and was entirely familiar with the stock, and with the way in which it was handled and kept. testified that this rack had not been used for 4-inch bars before these were placed there. On further examination he said that bars of the same diameter had been placed there before, but that they were shorter. He also testified that "there was not room between the two pins in question for more than one of the large four-inch bars,-not to be safe, -and, when there were two bars put in this He rack, one-half of the outer bar would be beyond the ends of the pegs." It appeared that he had occasionally marked tags at a desk that stood within a few feet of these bars, and that he might have glanced at them, but had noticed nothing especial about them. It is plain that the way in which the defendants kept their stock was by standing up the bars against the walls around the store, in the racks which have been described. The plaintiff understood this, and does not contend that it was negligence on the part of the defendants to conduct their business in that way. If it was, he clearly assumed the risk of it. What he contends, however, is, in effect, that, considering the size of the rack and of the bars, it was negligence to stand them up in it as was done. But here, again, standing these bars up against the wall in this rack was so much a part of the ordinary business of the store, and was so much to be expected, that it seems to us that the plaintiff must be held to have assumed the risk of it. Furthermore, there is nothing to show what caused the bar to fall. It had stood there securely for a month. There is no evidence that, when it was placed there originally, due care was not used in standing it up against the other bar, so that it should not fall. And taking into account the nature of the business, and the way in which it was done, we doubt whether It could be fairly said that the defendants or their manager were negligent, as against the plaintiff, merely because they stood one bar up against another in such a manner that half or more than half of the outer one was beyond the ends of the pins that constituted the rack that held them. See Carter v. Railroad Co., 177 Mass. 228, 58 N. E. 694. The result is that we think that the exceptions should be overruled. So ordered. (181 Mass. 413) OLD COLONY TRUST CO. v. GREAT WHITE SPIRIT CO. et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 22, 1902.) - POST MORTGAGE FORECLOSURE SALE 1. A foreclosure decree directed a master to sell the mortgaged property, and authorized him to adjourn the sale. The court, after notice of the time and place of sale was given, entered an order, without notice to the mortgagor, authorizing the master to adjourn the sale to a certain date, which was done, and the sale then occurred. Held, that the court had power, without notice, to authorize, or even to require, such adjournment. 2. Where a decree of foreclosure directed a master to sell the mortgaged property, and authorized him to fix the time of sale, he had implied power to also fix the place of sale. 3. Where, under a decree of foreclosure directing the master to sell all the mortgaged property, he advertised and sold only such part thereof as was in the possession of the mortgagee, and sold subject to another lien, whereas the decree required a sale free from such incumbrance, which was to be trans63 N.E.-60 ferred to the proceeds, and the court found that no party interested was injured by such departure from the decree, the sale was not thereby rendered invalid, and should be confirmed. Appeal from supreme judicial court, Suffolk county. Action by the Old Colony Trust Company against the Great White Spirit Company and others. From an order authorizing the master to adjourn a foreclosure sale, the defendant mortgagor appeals, and brings exceptions, and from a decree confirming such sale such defendant appeals. Exceptions overruled, and decree affirmed. William H. Dunbar and John G. Palfrey, for appellant. Charles K. Cobb, for appellee Old Colony R. Co. MORTON, J. This is a bill in equity to foreclose a mortgage. The case was before this court in 178 Mass. 92, 59 N. E. 673, on an appeal from a decree authorizing the foreclosure. The jurisdiction in equity was sustained, and the decree was affirmed. A special master was appointed pursuant to the decree to make sale of the mortgaged property, and he has done so. The case comes here now on an appeal from and exceptions to an order authorizing the master to adjourn the sale, and on an appeal from a decree confirming the sale. The special master advertised and gave notice of the sale of the property "at the Real Estate Exchange and Auction Board, 7 Exchange Place, in the city of Boston," "on Monday, the 20th day of May, 1901, at eleven o'clock in the forenoon." Shortly before the hour appointed for the sale, parties representing about three-quarters of the bonds secured by the mortgage appeared before a justice of this court in chambers, and made a motion that the sale be postponed to June 20th. No notice of the motion was given to the mortgagor or other parties interested, and the parties making it were not parties to the suit, and the counsel representing them were not counsel of record. special master was present, and was consulted by the court, and stated that, while he did not deem it his duty to oppose the motion, he questioned whether so long a postponement was expedient. An order was entered authorizing the adjournment to June 20th, and the sale was postponed, and the master duly sold the property at the time and place appointed, notice having been given of the adjournment. The decree of foreclosure authorized the master to adjourn and postpone the sale, and to proceed with the sale on any day to which the sale was adjourned, giving, at his option, such further notice as he might think proper. The order of the court did not in terms require an adjournment, but simply authorized it, and it is possible to construe what was done as done by the master with the sanction of the court. But even if the order was com The |