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ed back and came on her right wrist, implication St. 1891, p. 886, c. 323, & 14, as striking her left side and elbow; the piece amended by St. 1899, p. 460, c. 433, providing
for the determination of the assessable cost of of iron came up through the wooden part
improvements, so far as the improvement is of the seat and between the
the cushions concerned, and assessments for the improvement where they came together." She further cannot be levied where the work was done after testified that, “after the iron came up she
the adoption of the statute of 1900, though
the order for the improvement was adopted prior fell over on to it; when the car gave this
thereto, and though the proceedings took place sudden jerk she went over on to it; that under the statute of 1891 as amended. she was thrown over on her side but not
Case off the seat,
Reserved from Supreme Judicial
Court, Suffolk County. fell over on the iron she swayed back and
Petition by one Stone against the street fell over on the other side on her right
commissioners of Boston for a writ of cerwrist." She was corroborated by one wit
tiorari. Case reserved for the full court. ness as to the rate at which the car was
Writ issued. moving and as to its coming to a sudden stop. But she was contradicted by several Frank M. Forbush, for petitioner. Saml. witnesses called by the defendant as to her M. Child, for respondents. being thrown over onto the iron, or away from it, and was the only witness who so MORTON, J. This is a petition for a writ testified. All of the witnesses agreed, how- of certiorari to quash a betterment assessever, that a piece of iron came up through ment made by the street commissioners of the seat and that the car came to a stop, Boston and the petitioner and others for though all except the plaintiff and one other benefits accruing from the relocation and contestified that it was moving slowly when it struction of Alford street in that part of Bosstopped. There was no evidence as to ton which was formerly Charlestown. where the piece of iron came from.
There is no dispute as to the facts or as to Whether the account given by the female the remedy if the assessment is invalid. By plaintiff of the way in which she received St. 1899, p. 244, c. 280, the city engineer of the alleged injuries was correct or not was Boston was required to construct a bridge clearly for the jury. And we think that it
over Mystic river at or near the site of Malwas also competent for them to find that
den Bridge, so called, and the street commisthe accident was due to negligence on the sioners were authorized to take in fee any part of the defendant. The defendant did lands which they might deem necessary not offer or attempt to offer any explana- to enable the city to carry out the act. On tion of the accident. The track and the car August 25, 1899, the street commissioners were under its control and in the absence passed an order relocating Alford street from of any explanation tending to show that
the boundary line between Boston and Everthe accident occurred without any fault on ett so as to pass over the bridge thus authorits part the jury were warranted in finding ized. Subsequently the Legislature passed an that it would not have occurred if the de- act (chapter 296, p. 222, Acts 1900) authorizfendant had exercised proper care. White ing "the board of street commissioners of the v. B. & A. R. Co., 144 Mass. 404, 11 N. E. city of Boston to lay out, widen and order 552; Feital v. Middlesex R. R. Co., 109 the construction of so much of the causeway Mass. 398, 12 Am. Rep. 720; Uggla v. West and other parts of the highway between End St. Ry. Co., 160 Mass. 351, 35 N. E. Malden Bridge and the boundary line be1126, 39 Am. St. Rep. 481; Copithorne v. tween said city and the city of Everett and Hardy, 173 Mass. 400, 53 N. E. 915; Savage to such width as the board may determine" v. Marlborough St. Ry., 186 Mass. 203, 71 and providing that the expenses should be N. E. 531.
paid from the loan authorized by chapter 280, Exceptions overruled.
p. 244, Acts 1899, aforesaid, and that "no assessment shall be made for such laying out
and construction." Substantially all of the (192 Mass. 297)
work of constructing Alford street was done STONE V. STREET COM’RS OF BOSTON.
after the passage of this act. On October (Supreme Judicial Court of Massachusetts. 29, 1904, the street commissioners of the city Suffolk. June 20, 1906.)
of Boston purporting to act under St. 1891, 1. MUNICIPAL CORPORATIONS ASSESSMENTS
p. 886, c. 323, § 14, as amended by St. 1899, FOR IMPROVEMENTS-STATUTORY AUTHORITY. The right to levy and collect betterment
p. 460, C. 433, passed an order making the assessments is statutory, and the Legislature
assessments in question. The petitioner conmay repeal the law authorizing such assess- tends that under the concluding clause of ments, except so far as contractual obligations
section 1, c. 296, p. 222, Acts 1900, quoted are involved.
above, the street commissioners had no au[Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, $$ 1005,
thority to make the assessments. We are of 1006.]
opinion that the contention is right. 2. SAME — STATUTES-APPLICABILITY TO IM
The right to levy and collect betterment PROVEMENTS.
assessments is wholly statutory in its nature, St. 1900, p. 222, c. 296, providing that no assessments shall be made for an improvement
and the Legislature may, at any time, for directed by St. 1899, p. 244, c. 280, repeals by
reasons which it deems satisfactory, suspend
or repeal the law authorizing such assessments, except so far as contractual rights or obligations are involved. In the present case no contractual rights or obligations are involved. And we think it plain that the concluding clause of section 1, c. 296, p. 222, Acts 1900, repealed by implication the law relating to betterment assessments so far as the particular improvement referred to in said act was concerned. It is immaterial that the repeal took place after the order for relocating the street had been adopted by the street commissioners and that the order for relocation did not purport to be made under chapter 296. The city and the street commissioners were the agents of the commonwealth and were at all times during the proceedings subject to its direction. This was equally true whether the relocation proceedings took place under chapter 296, p. 222, Acts 1900, or under Acts 1891, p. 886, c. 323, $ 14, as amended by Acts 1899, p. 460, c. 433. The statute referred to in Jones v. Boston, 104 Mass. 461, expressly provided that the repeal should not affect any rights or liabilities which have already accrued under the section hereby repealed and that case is not therefore applicable.
The result is that the writ is to issue as prayed for.
by received. The declaration contained five counts, the first being at common law and the others under the employer's liability act. The second count was for injuries caused by negligence on the part of a person entrusted with and exercising superintendence, whose sole or principal duty was that of superintendence. The case was submitted to
. the jury on this count only, the court ruling that there was no evidence entitling the plaintiff to recover under the other counts. There was a verdict for the plaintiff and the case is here on the defendant's exceptions. We think that the ruling was right.
The plaintiff was set to work by Boyd, the superintendent in what both knew to be a dangerous place. According to the plaintiff's testimony he looked up to see if a train was approaching and Boyd, who was standing near, saw him do it and said, "All right, Jack," and the plaintiff went on with his work. This, if believed, warranted the jury in finding that the plaintiff was in the exercise of due care and was justified in assuming that Boyd was looking out for him and in acting accordingly. The evidence showed that an approaching train could be seen 150 feet away and that Boyd stood there with nothing to do but gave the plaintiff no warning of the approach of the train that struck him. This warranted a finding of negligence on the part of Boyd. It was not contended that Boyd was not a superintendent. See Davis v. N. Y., N. H. & H. R. Co., 159 Mass. 532, 34 N. E. 1070; Scullane v. Kellogg, 169 Mass. 544, 48 N. E. 622; Greenstein v. Chick, 187 Mass. 157, 72 N. E. 955; Lynch v. M. T. Stevens & Son Co., 187 Mass. 397, 73 N. E. 478.
(192 Mass. 415) DUNPHY V. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts.
Suffolk. June 20, 1906.) 1. MASTER AND SERVANT-INJURIES TO SERV• ANT-FAILURE TO WARN.
Where the superintendent of a servant working on a track saw the servant looking out for a train and told him it was all right, and the superintendent saw a train approaching 150 feet away and gave no warning, he was guilty of negligence.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, $8 297, 299301, 305, 306, 312.] 2. SAME — CONTRIBUTORY NEGLIGENCE -- RELIANCE ON CARE OF MASTER.
The servant was in the exercise of due care; he being justified in assuming that he was being protected.
[Ed. Note.-For cases in point, see vol. 34,
[. , . , Cent. Dig. Master and Servant, $$ 675-677.]
Exceptions from Superior Court, Suffolk County; Henry M. Sheldon, Judge.
Action by one Dunphy against the Boston Elevated Railway Company. Judgment in favor of plaintiff, and defendant brings exceptions. Exceptions overruled.
H. E. Bolles and Henry M. Channing, for plaintiff, Choate, Hall & Stewart, for defendant
(192 Maks. 317) SALLINGER V. SMITH et al. (Supreme Judicial Court of Massachusetts.
Middlesex. June 20, 1906.) 1. HEALTI --CONTAGIOUS DISEASE - LOCAL BOARDS-POWERS-USE OF PROPERTY.
Pub. St. 1882, c. 80, $ 43, provides, in relation to the public health and contagious diseases, that two justices of the peace may make out a warrant requiring the sheriff to impress convenient houses for the accommodation of the sick. Held, that a board of health of a city had no right to use a residence for a smallpox hospital without the owner's consent, except under a warrant.
[Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Health, $ 5.] 2. SAME.
Where, after a board of health of a city took possession of plaintiff's dwelling and used it as a smallpox hospital, plaintiff executed a lease to the board and continued to accept rent after the expiration of the term, it amounted to a consent on her part to the occupancy of the premises, and rendered any action by the board under the statute to obtain possession unnecessary. 3. ACTION - ACTION AGAINST BOARD – EviDENCE-ADMISSIBILITY.
In an action by the owner for damages for the original occupancy, evidence that she did
MORTON, J. The plaintiff was struck and knocked off the track by a passing train while working in the defendant's employment on the loop at the Dudley Street terminal station of defendant's railway in Boston, and this is an action to recover for the injuries there
not know that in executing the lease she was signing away any right to recover damages for the original occupation and that the house was known as the pesthouse was inadmissible.
Exceptions from Superior Court, Middlesex County; Daniel W. Bond, Judge.
Action by one Sallinger against one Smith and others, as the board of health of the city of Everett. Verdict for defendants, and plaintiff brings exceptions. Exceptions overruled.
Dewey & Allen, for plaintiff. Walter S. Thompson, for defendants.
ticed upon her and her unexpressed belief and failure to realize the full scope and effect of what she was doing were incompetent and immaterial. So also was the fact that the house was known as "the pesthouse."
The view which we have taken of the effect of the lease and the continued payment and receipt of rent renders it unnecessary to consider the rulings requested.
MORTON, J. This is an action of tort to recover damages for the alleged unlawful occupation and use of the plaintiff's premises as a smallpox hospital by the defendants as the board of health of the city of Everett. At the close of the evidence the court ordered a verdict for the defendants, and the case is here on exceptions by the plaintiff to this ruling and to the refusal of the court to give certain rulings that were requested by her.
We think that the ruling was right. On the 22d of November, 1901, the defendants found a case of smallpox in the family of one of the plaintiff's tenants, and thereupon quarantined the plaintiff's premises, and occupied them for a smallpox hospital; some 40 or 42 cases in all being attended to there. The city of Everett had no hospital for contagious diseases at that time, and the premises were in the control of the defendants till some time in the following September. The defendants had no right to use the plaintiff's premises for a smallpox hospital without her consent except under a warrant issued in accordance with the provisions of Pub. St. 1882, C. 80, § 43, which were in force at the time. Hersey V. Chapin, 162 Mass. 176, 38 V. E. 442. But on December 21, 1901, the plaintiff executed a lease of the premises to the defendants for the term of three months from November 22d at $36 a month with an option on the part of the lessees to hold for four months from said November 22d. The lease provided that the lessees were to pay the rent stipulated during the term and for such further time as the lessees should hold the premises. The rent was subsequently increased to $48 a month from April 22, 1902. It is plain, we think, that the lease and the continued receipt of rent after the expiration of the term named operated as a consent by the plaintiff to the occupancy of the premises by the defendants for a smallpox hospital and rendered any action by them under the statute unnecessary.
The evidence offered by the plaintiff to show that in executing the lease she did not believe or realize that she was signing away rights to recover damages, and that since November, 1901, the house had been commonly known in Everett as "the pesthouse" was rightly excluded.
No fraud or misrepresentation was prac
(192 Mass. 324) HAWES V. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts.
Suffolk. June 20, 1906.) CARRIERS-INJURY TO PASSENGER-MEANS OF TRANSPORTATION-SAFETY-CARS.
A woman carrying a baby, having boarded defendant's train, was about to enter the smoking car, when the brakeman told her to cross quickly over into another car, and in attempting to do so she fell between the cars and was injured. Plaintiff testified that the child prevented her from seeing the space between the platforms, and defendant's evidence showed that the curves of the platform were determined by the shortest curve at which it was necessary for the cars to pass, and that the best device known for covering the space between the cars had proved impracticable. Held, that there was no negligence on the part of the defendant; it not having been bound to warn the passenger or to assist her in crossing.
[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, $$ 1177-1179.)
Exceptions from Superior Court, Suffolk County; John H. Hardy, Judge.
Action by one Hawes against the Boston Elevated Railway Company. Verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.
J. Winthrop Pickering, for plaintiff. Russell A. Sears, Endicott P. Saltonstall, and Sanford H. E. Fround, for defendant.
MORTON, J. This an action of tort to recover for personal injuries received by the plaintiff by falling through an open space between the platforms of two of the defendant's cars while passing from one to the other with an infant in her arms. She had got on to the platform of a car of one of the trains of the elevated railway, and was in the act of entering the door when the brakeman spoke up sharply and said: "Smoking car, madam; you can't go in there; cross over into the front car, and move quickly." In attempting to obey him she fell between the cars receiving the injuries complained of. The train was at a standstill and she was not pushed or jostled by any other persons. The court ordered a verdict for the defendant and the case is here on the plaintiff's exceptions to this ruling.
We think that the ruling was right. The plaintiff testified amongst other things that the child as she held it prevented her from seeing the space between the platforms and that it required her attention; that her mind was on the child and she was protecting it; that she was herself small and frail and was
unfamiliar with the elevated cars and plat- shall be preferred to persons not veterans, etc., forms and had never crossed from one plat- section 22, authorizing a veteran to apply for form to another and did not know that there
appointment in the classified services without
examination, section 23, prohibiting the removwas any space between them; that she did al of veterans holding an office or employment not look down; and that the brakeman gave in the civil service, except after hearing, etc., her no warning or assistance. The space be
and section 24, providing that the rules shall
provide for the employment of veterans in the tween the two platforms at its narrowest
labor service in preference to all other persons, part was 7 inches wide and 11 inches wide
except women, etc., when considered in conin its widest part, and the ends of the plat- nection with the history of the legislation on
the subject (St. 1884, p. 316, c. 320; St. 1887, forms were so constructed that both curved
p. 1099, c. 437; St. 1889, p. 1224, c. 473; St. away from each other. The passageway was s c,
1894, p. 671, c. 519; St. 1895, p. 618, c. 501 ; about two feet wide in the middle of the St. 1806, p. 534, c. 517), give to a veteran, emplatforms which were 6 feet in width and on
ployed in the labor service of a city, employeach side of the passageway on each plat
ment as long as he is able to do the work for
which he is employed and the work continues. form about an inch and a half from the edge [Ed. Note.-For cases in point, see vol. 36, was an iron post or rod supporting the vesti- Cent. Dig. Municipal Corporations, § 578.] bule roof which covered the platform. The 2. SAME-RULES OF CIVIL SERVICE COMMISplaintiff testified that in crossing it was nec
The rules of the civil service commission, cessary to avoid these posts. The defendant
which provide that, when laborers are required, introduced evidence which was uncontradict
the commission shall certify the names of the ed that the curves of the platforms of the veterans on the eligible list, and the employcars were determined by the shortest curve
ment shall be made from the list so certified,
and the employing officer shall first employ from which it was necessary for the cars coupled
the list of veterans certified, adopted pursuant together to pass and were no greater than to a statute making it obligatory on the commiswas required, and that experiments had been sion to establish rules giving to veterans prefmade with the Gould buffer coupling which
erence in the labor service, gives to a veteran
employed in the labor service of a city the was the best device known for covering the
right to continuous employment in preference to space between the ends of cars, and “the laborers who are not veterans, so long as there couplers went to pieces."
is work to be done for which he is employed We see no evidence of negligence on the
and so long as he is competent to perform that,
work. part of the defendant. There is nothing to
[Ed. Note.-For cases in point, see vol. 36, show that the space between the cars could Cent. Dig. Municipal Corporations, $ 578.] have been made any less or that the ends of 3. SAME-DISCHARGE OF VETERAN - ACTION the platforms could have been made any dif- AGAINST CITY. ferent. The defendant was not bound to A veteran, employed in the labor service warn the plaintiff of the space between the
of a city pursuant to the civil service statutes
and rules of the civil service commission, may, cars, or to assist her in crossing from one to on his wrongful discharge, maintain an action the other and the brakeman's request to move
against the city to recover wages for work subquickly was not, in vijw of the nature of the
sequent to his discharge; for to confine him to
an action against the person doing the work defendant's business, an unreasonable one.
that ought to have been given the veteran to do Whether the plaintiff was in the exercise of is a denial of justice to him. due care need not be decided. But it would
[Ed. Note.-For cases in point, see vol. 36, seem that for her to step from one car to the
Cent. Dig. Municipal Corporations, $ 605.] other without looking down was hardly con
4. SAME-CONTRACT OF EMPLOYMENT. istent with the exercise of due care on her
The statutes regulating the employment of
laborers of cities and the rules of the civil servpart. The infant in her arms and her own
ice commission adopted pursuant thereto enter inexperience and weakness would seem to into and form a part of a contract whereby have called for the exercise of more care, in
one is employed in the labor service of a city. stead of serving as an excuse for the exercise
5. SAME--MEASURE OF DAMAGES.
Where a veteran, employed in the labor of less care. The case is fully covered by
service of a city pursuant to the civil service previous cases. Welch v. Boston El. Ry. Co., statutes and the rules of the civil service com187 Mass. 118, 72 N. E. 500; Falkins V.
mission, was wrongfully discharged, and the Boston El. Ry. Co., 188 Mass. 153, 74 N. E.
city failed to give him preference over others
not veterans while there was work to be done, 338; Willworth v. Same, 188 Mass. 220, 74 the measure of damages was the amount which N. E. 333; Field v. Same, 188 Mass. 222, 74
he would have earned, had he been given the N. E. 334; Hilborn v. Boston & Northern St.
preference over others while there was work Ry. (Mass.) 77 N. E. 646.
to be done, less what he earned, or in the ex
ercise of proper diligence might have earned, Exceptions overruled.
DISCHARGE. (192 Mass. 299)
Rev. Laws, c. 19, $ 35, prescribing a penRANSOM V. CITY OF BOSTON.
alty for failing to comply with the civil sery
ice statutes, does not prevent a veteran em(Supreme Judicial_Court of Massachusetts. ployed in the labor service of a city from mainSuffolk. June 20, 1906.)
taining an action against the city for damages 1. MUNICIPAL CORPORATIONS-CIVIL SERVICE
for his wrongful discharge. .-STATUTES-CONSTRUCTION. Rev. Laws, c. 19, § 20, defining a veteran,
Exceptions from Superior Court, Suffolk section 21, providing that a veteran applying County; Wm. Cushing Wait, Judge. for examination under the civil service rules Action by one Ransom against the city of
Boston. There was a judgment for defendant, and plaintiff brings exceptions. Exceptions sustained.
Perry & Upton, for plaintiff. Philip Nichols, for defendant.
SHELDON, J. This is an action of contract brought to recover wages which the plaintiff would have received if he had been employed continuously by the defendant from May 6, 1895, to the date of his writ.
At the trial in the superior court it appeared that the plaintiff being a veteran of the Civil War within the meaning of the civil service statutes and rules, duly registered with the civil service commission in January, 1895, as a laborer for labor service in the city of Boston; that he was eligible for such labor service; that upon a requisition made to the civil service commission by the superintendent of the public grounds department of the defendant city, he was regularly certified for such service, and was employed as a laborer in said department. He worked in that employment steadily until January 1, 1898, when a foreman in that department told him he was suspended, and thereafter he was refused work except for 10 days during which he was employed and worked as usual, until March 18, 1898, when he was employed and worked as before until January 30, 1899. After this he was again laid off or suspended from time to time during the winter and early spring, and was employed and worked the rest of the time ụntil December 4, 1901, when by an accident he became incapacitated for work until about December 8, 1902. On this last date he was refused any employment or work, and from that time until the date of the writ he was prevented by the superintendent of the department and the foreman, from doing any work. On March 1, 1903, he received notice that he was discharged by the defendant from his employment in said department for the reason that his name had not appeared upon the pay rolls as at work for six months preceeding that date; but on March 26, 1903, the superintendent of public grounds was notified by the civil service commission that the plaintiff, being a veteran, was not to be discharged for that cause, and that his name was still on record at the office of said commission as an employé of the public grounds department.
There was evidence that the plaintiff was at all times, except from December, 1901, to December, 1902, able, ready and willing to work as a laborer in the department for which he was eligible, and that he habitually and frequently asked the superintendent and foreman, to employ him; that when he was first laid off or suspended another man, not a veteran, was put to work in that depart• ment as a common laborer, and afterwards continued to perform work such as the plaintiff was accustomed to do, while the plain
tiff was not permitted to work; that there was work done by persons not veterans classified as laborers while the plaintiff was laid off or suspended.
The work done by the plaintiff in the spring, summer and fall was hoeing, sweeping, mowing, loading teams and helping sodders and other laborers. The work done in the winter was sweeping, shoveling off steps, shoveling snow, and clearing the ponds of snow for skating. There was evidence that the force of men employed on the public grounds in the spring, summer and fall for such work as the plaintiff did was cut down during the winter, as there was then no such work to be done, but that certain laborers, not veterans, were employed during the winter months on work which the plaintiff was able and ready to perform. He never was removed or suspended from his employment on any charges preferred against him ; and there was no evidence that he ever was removed or suspended after a full hearing before the mayor, or that the removals and suspensions were made upon the written or, der of the mayor.
Upon this evidence, at the end of the plaintiff's case, the presiding justice ruled that the action in contract could not be maintained, and, upon the general ground that upon all the evidence the plaintiff was not entitled to maintain the action, ordered a verdict for the defendant; and the case comes before us upon the plaintiff's exceptions to this ruling.
It is provided by Rev. Laws, C. 19, § 23, that "no veteran who holds an office or employment in the public service of the commonwealth, or of any city or town therein, shall be removed or suspended, or shall, without his consent, be transferred from such office or employment, nor shall his office be abolished except after a full hearing of which he shall have at least seventy-two hours' written notice, with a statement of the reasons for the contemplated removal, suspension, transfer or abolition. The hearing shall be before the state board of conciliation and arbitration, if the veteran is a state employé, or before the mayor of the city or selectmen of the town of which he is an employé, and the veteran shall have the right to be present and to be represented by counsel. Such removal, suspension or transfer, or such abolition of an office, shall be made only upon a written order stating fully and specifically the cause or causes therefor, and signed by said board, mayor or selectmen, after a hearing as aforesaid." rules of the civil service commissioners made and duly approved under St. 1884, p. '347, c. 320, $ 2, and the acts in amendment thereof (see now Rev. Laws, C. 19, $$ 6, 7, 24), wert put in evidence at the trial, and by agree-" ment of the parties were produced and referred to at the argument in this court. . The plaintiff contends that under these stat-.