« ForrigeFortsett »
tending to crush ordinary competitors, and thus create a monopoly, from which the community as consumers would ultimately Suffer. If, at the time of the enactment of this statute, there were dangers of this kind confronting the people of the commonwealth, and if this prohibition is a reasonable Way of everting such dangers, we find justification for the legislation, unless it involves a serious injury to those who are restrained by it. It permits every kind of contract of sale but One. It does not prohibit the appointment of agents, or sole agents, for the sale of property. It allows contracts for the exclusive Sale of goods, wares or merchandise. The contracts that it forbids are only those Which, in ordinary competition among equals, no one Would have any interest or desire to make. As a rule, it is only a perSon Or Corporation that is intrenched in a position of power that can afford to say to a retailer or jobber, “I will not let you have my goods unless you will agree to sell none furnished by others.” One who controls the Sources of Supply of goods, which are in such demand that a dealer cannot afford to be Without them, can safely say to a purchaser “You must give me all your trade if you want to sell any of my goods.” In that way he may be able to obtain a complete monoply of the trade in goods such as he supplies. The evidence in this case illustrates some of the tendencies of the times. The defendant's employer, the Continental Tobacco Company, is incorporated with a capital Stock of $75,000,000. At the time of the sales for Which the defendant is indicted it had absorbed more than twelve establishments used for the manufacture and sale of plug tobaccos, and owned by as many proprietors. Prior to its incorporation there was free and open competition in the plug tobacco market in Massachusetts. It so consolidated and restricted the trade that, in January, 1904, it produced about 95 per cent. of the plug tobacco, and about 80 per cent. of the cut plug tobacco in Massachusetts. Conditions were about the same in all parts of the State. There were about two hundred and ten jobbers in Massachusetts, and practically all stopped buying of independent manufacturers When this Corporation made this new proposition, presented by the defendant in making the Sales complained of. It had acquired such strength in its own field that, by the use of such means as the statute forbade, it could expect easily to obtain a practical monopoly of the plug tobacco trade in Massachusetts. This evidence furnishes an illustration of what we fairly may assume was being done, or might be expected to be done, in the manufacture and Sale of other products, even of Some Of the necessaries of life. Tobacco is not one of the necessaries of life, but its use is so common that to many persons it seems almost as necessary as food. The poor much more than the rich would be likely to be
affected by the monoply of the market for plug tobacco, and a rise in the price Which might be expected to follow it. This statute was not enacted for protection in the purchase of any One kind of property. Its object doubtless was to prevent the use of this particular method of crushing competitors in any kind of trade in which the public might be interested. Especially was it important to prevent monoply in the Sale Of the necessaries of life. In View of this, We deem it not unreasonable that the Statute was made to apply to Sales of all kinds of g000S. Legislation should be adapted to existing conditions. A few years ago there was no Occasion for Such an enactment. But lately We see great aggregations of capital formed to obtain command, if possible, of the field of production or distribution into which they enter. Even now, in the transaction of busineSS among equals Where there is free competition, the statute is unnecessary, for there is no inducement to do that which it forbids. Its practical effect is to prevent great corporations from making a certain kind of contracts intended to drive ordinary competitors out of business. The question is whether, at the time of the passage of this Statute, there were conditions actually existing or reasonably anticipated which called for such legislative intervention in the interest of the general public. We are of the opinion that there were, and that, in a broad and liberal sense of the WOrds, this statute was enacted in the interest of the public health and the public safety, if not of the public morals. Certainly the purpose of the Legislature was to promote the general Welfare of the public. We cannot Say that this legislative action Was not a legitimate exercise of the police power. Its invasion of the general right to make contracts is So Slight, and in a field so remote from ordinary mercantile transactions, that there is little ground of objection on that SCOre. The abuse at Which the statute is aimed, while not practiced by many persons, is real and widely pervasive. As was said by the court in Lochner V. New York, 198 U. S. 45, 53, 25 Sup. Ct. 539, 543, 49L. Ed. 937, on this record, “the question arises, is this a fair and reasonable and proper exercise of the police power of the state, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty, or to enter into those contracts * * * which may seem to him appropriate or necessary for the support of himself or his family.” Many cases have been decided by the Supreme Court of the United States which, in principle, go far to Sustain the COntention of the commonwealth in the present action. Otis v. Parker, 187 U. S. 606, 23 Sup. Ct. 168, 47 L. Ed. 323; Atkins v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148; Knoxville Iron Co. V. Harbison, 183 U. S. 13, 22 Sup. Ct. 1, 46 L. Ed. 55; Mugler V. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Patterson v. Kentucky, 97 U. S. 501, 24 L. Ed. 1115; Holden V. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780; Jacobson V. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643. Similar doctrines have Often been stated in our own decisions. Opinion of the Justices, 163 Mass. 589, 592, 593, 40 N. E. 713, 28 L. R. A. 344; Watertown V. Mayo, 109 Mass. 315, 318, 12 Am. Rep. 694; Commonwealth V. Danziger, 176 Mass. 290, 57 N. E. 461; Commonwealth V. Pear, 183 Mass. 242, 66 N. E. 719; Squire V. Tellier, 185 Mass. 18, 69 N. E. 312, 102 Am. St. Rep. 322. In Other States a few of the cases are the following: Thorpe v. Rutland & Burlington Ry. Co., 27 Vt. 140, 149, 62 Am. Dec. 625; Burdick V. People, 149 Ill. 611, 36 N. E. 925; State v. Peel Splint Coal Co., 36 W. Va. 802, 15 S. E. 1000, 17 L. R. A. 385; Commonwealth v. Reinecke Coal Co. (Ky.) 79 S. W. 287; Avent Beattyville Coal Co. v. Commonwealth, 96 Ky. 218, 28 S. W. 502, 28 L. R. A. 273; State ex rel. V. Kreutzberg, 114 Wis. 530, 549, 90 N. W. 1098, 58 L. R. A. 748, 91 Am. St. Rep. 934. Some of them are in Support of So called anti-trust laws. Fuqua V. Pabst Brewing Co., 90 Tex. 298,38 S. W. 29, 750, 35 L. R. A. 241; State V. Schlitz Brewing Co., 104 Tenn. 715, 745, 59 S. W. 1033, 18 Am. St. Rep. 941; State v. Buckeye Pipe Line Co., 61 Ohio St. 520, 56 N. E. 464; State V. Firemen's Fund Ins. Co., 152 Mo. 1, 52 S. W. 595, 45 L. R. A. 363. The defendant COntends that the Statute iS in Valid as an interference With interstate commerce, in contravention of article 1, § 8, Of the Constitution Of the United States. The decisions of the Supreme Court of the United States which deal with the police power in its relation to the constitutional provision for the regulation of interstate Commerce are numerous. AS We underStand them, the questions of difficulty in the present case are Substantially the same, under this clause of the Constitution, as under that which we have already considered. This statute does not attempt directly to regulate interstate commerce, or to deal with it in any way. Indirectly it affects it in those cases where contracts are made for the Sale and tranSportation of property in another state to a purchaser in this state. The Statute does not purport to tax interstate commerce, or directly to impose any burden upon it. If it did, it Would be unconsitutional. Robbins v. Shelby
County Taxing District, 120 U. S. 489, 493, 7
Sup. Ct. 592, 30 L. Ed. 694; Brennan v. Titus
ville, 153 U. S. 289, 14 Sup. Ct. 829, 38 L. Ed.
719. It purports to be an act passed in the ex
ercise of the police power, affecting only con
tracts made in this commonwealth, and de
signed for the protection of the public within Our OWI) boundaries. We underStand the question. On this part of the case to be, is this a legitimate exercise of the police power, or is it an unauthorized interference with legitimate interstate Commerce? Under the decisions in Plumley V. Mass., 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223; Commonwealth V. Huntley, 156 Mass. 236, 30 N. E. 1127, 15 L. R. A. 839; and Hennington V. Georgia, 163 U. S. 299, 16 Sup. Ct. 1086, 41 L. Ed. 166, if this statute can fairly be called an exercise of the police power upon a subject in regard to which the states have a right to legislate, the fact that it puts a limitation on what would OtherWise be interState commerce does not render it invalid. That it is a legitimate exercise of the police power we have endeavored
to Show upon the other branch of the case.
If We have been Successful in Our endeavor, this objection of the defendant is not Well founded. See, also, as bearing on this question, Sherlock V. Alling, 43 U. S. 99, 103, 104, 23 L. Ed. 819; Chicago, Milwaukee, etc., Railroad Co. v. Solan, 169 U. S. 133, 137, 18 Sup. Ct. 289, 42 L. Ed. 688; Missouri, etc., Railway Co. v. Haber, 169 U. S. 613, 625, 637, 18 Sup. Ct. 488, 42 L. Ed. 878; Morgan's Louisiana & T. R. & S. S. CO. V. State Board of Health, 118 U. S. 455, 463, 465, 6 Sup. Ct. 1114, 30 L. Ed. 237; Richmond, etc., Railroad Co. v. Paterson Tobacco Co., 169 U. S. 311, 18 Sup. Ct. 335, 42 L. Ed. 759; Western Union Telegraph Co. v. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105. The enactment of the federal anti-trust law, so called (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]) does not affect the validity of this statute. That law deals only with contracts which directly affect interstate or foreign commerce by Way of restraint of trade or the creation of a monopoly, and it does not touch contracts which affect interstate commerce only indirectly. Anderson v. United States, 171 U. S. 604, 615, 19 Sup. Ct. 50, 43 L. Ed. 300; United States V. Joint Traffic Association, 171 U. S. 505, 568, 19 Sup. Ct. 25, 43 L. Ed. 259; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 228, 20 Sup. Ct. 96, 44 L. Ed. 136. It has been decided that a Con
tract similar to those which appear in the
present case is not within the federal statute. Whitwell V. Continental Tobacco Co., 125 Fed. 454, GO C. C. A. 200, G4 L. R. A. G89. By this enactment the CongreSS has not attempted to cover the field in which the Statute in question belongs. The right of the state to protect its citizens in the way here attempted is not taken away by the federal law.
We are of opinion that the objections to the constitutionality of the statute are not Well founded.
(192 Mass. 66)
INHABITANTS OF WALPOLE v. MASSACHUSETTS CHEMICAL CO. (Supreme Judicial Court of Massachusetts. Norfolk. May 17, 1906.)
1. EMINENT DOMAIN-TAKING LAND FOR MUNICIPAL WATER SUPPLY—RIGHTS ACQUIRED. St. 1893, p. 911, c. 277, authorizes a town to take lands and easements necessary for supplying water to its inhabitants. The town purported to take two lots for a pumping station by an instrument reciting that the taking of the lots was for the construction of pipes for conveying water for distribution, and for the use of a site for buildings and for the sinking of filter wells and driven wells and for the holding and preserving of water. Held, that the taking included an easement of a right to flow water over the land, which if permitted to exist, would interfere with the use of the system by which the town would obtain the necessary water supply. 2. SAME. A taking, for a public purpose, of an entire tract of land, described as if unincumbered, includes an easement in the land. 3. SAME – NOTICE TO OWNER OF PROPERTY SOUGHT TO BE TAKEN. In proceedings by a town to take land for the purpose of supplying water to its inhabitants as authorized by St. 1893, p. 911, c. 277, it is immaterial that no personal notice of the taking was given to the owner of an easement in the land taken; notice by the public acts of the town and its officers and the registration required by the statute being enough to vest a good title in the town.
Case Reserved from Superior Court, Norfolk County; Wm. Schofield, Judge.
Bill in equity by the inhabitants of Walpole against the Massachusetts Chemical Company. Case reserved for full court. Decree for plaintiff.
Chas. K. Cobb and Wm. D. Whitmore, Jr., for plaintiff. Jas. E. Cotter and ChaS. F. Jenney, for defendant.
KNOWLTON, C. J. This is a bill in equity brought by the plaintiff to restrain the defendant from flowing the land occupied by the plaintiff as a part of its system for supplying water to its inhabitants. This land was taken by the town under the Statute 1893, p. 911, c. 277, and the defense relied upon is that the defendant has an easement in the land, namely, a right to flow the land in Connection. With a dam On the Stream below, which right has been owned by it and its predecessors in title since 1659, when it was granted by the town of Dedham. The plaintiff denies that the defendant or its predecessors in title have owned such a right in recent years, and contends that, if they owned it, it was included in the plaintiff's taking under the Statute, and was thereby extinguished.
The master in his report Says that the defendant rests its right upon three grounds: First, an ancient grant from the town of Dedham in 1659; Second, a So-called Covenant or agreement made in 1724 between the then owners of the mill privilege and the OWners of the meadows above it; and, third, a right by prescription or adverse use. The case Was
heard at length, and many questions of law and of fact arose before the master. NumerOus exceptions to the master's report were taken by both parties. The master found that the defendant has a right of flowage Over the land in the winter season, and, at the hearing before the judge, the case was reserved for the full court upon the pleadings, the master's report and the exceptions theretO. The master ruled that the plaintiff's taking did not include the easement claimed by the defendant and the plaintiff's first exception is to this ruling. It is conceded by the defendant that the statute is broad enough to enable the town to take such a right, and the ruling Seems to have been made on the ground that the defendant's easement was a Water right, and that the language of the inStrument of taking does not include such a right. The instrument does not purport to take any right to the Water of the stream. After appropriate recitals, it purports to take two lots of land, which are particularly deScribed by metes and bounds, and it declares that “the taking of the land embraced in this description is for the use of constructing, laying down, maintaining and repairing conduits, pipes and drains, for the taking, holding and conveying of Water in, under and OVer the same, towards and into different parts of Said town of Walpole, for distribution and use therein, and for the use and purposes of a site for buildings and structures Which may be erected thereon, and for the sinking of filter Wells and driven Wells, and for the holding and preserving of Such Water, and for the use and purpose of passing to and from said buildings or structures, and the laying down, maintaining and repairing conduits, pipes and drains to and from the same, as all the same may be necesSary or convenient in constructing, maintaining and operating a System of Water works for said town of Walpole under the provisions of Said act.” This is a taking of the entire title to the land, so far as necessary for the purposes set forth, and is within the authority of the statute. If the ownership of the land had been divided, SO that certain interests Were owned by one party and other interests by another party, it Would have included them all, at least so far as they were needed for the uses to which the land was to be put, just as it would if they had all been owned by one person. The easement now claimed by the defendant Was One that could not be left outstanding, consistently with the proper exercise of the plaintiff's rights in the land. This easement, if it continued valid, would enable the defendant to flow the land on which the plaintiff's pumping Station is erected, and thereby to interfere with the use of the building and the system of pumps and driven Wells by Which the plaintiff Obtains Water. It is as if the easement Were a right of way over the land where the pumping station is erected. Such a right, annexed to a neighboring estate, would be taken by a taking of the Whole of the Servient tenement for such a public use. An easement is an interest in the land, CarVed Out Of it for the benefit of the owner of the dominant tenement, and it leaves the owner of the servient tenement with a title limited by the ownership of this separate interest in another person. So a taking of the entire land, which describes it as if it. Were unincumbered, includes the eaSement, just aS it Would include a leasehold estate as Well as the fee or revel:sion. Commonwealth v. Fisher, 6 Metc. 433; Sprague V. Dorr, 185 Mass. 10, 13, 69 N. E. 344. It is immaterial that no personal notice of the taking was given to the Owner of the easement. The notice by the public acts of the town and its officers and the registration required by the statute are enough to vest a good title in the town. Appleton v. Newton, 178 Mass. 276, 59 N. E. 648; Sweet V. Boston, 186 Mass. 79, 71 N. E. 113. The case is entirely different from one in Which the right claimed to be taken is outside of the land, in the Waters of the Stream as it flows to riparian proprietors below. The ruling that the defendant's right of flowage, existing as an easement in the land before the taking, remained unaffected by the taking Was erroneous. This view of the case makes it unnecessary to consider the many questions raised by the Other exceptions, which relate to the defendant's title to the easement. It is also unnecessary to consider Whether a taking of land under this statute would deprive a riparian proprietor on the stream below Of his right to build a mill under the mill act, and set back the water upon the land above, by paying damages to the owner. No Such question was raised at the hearing. Decree for the plaintiff.
(191 Mass. 509)
McDONOUGH v. BOSTON ELEVATED RY. CO.
(Supreme Judicial Court of Massachusetts. Suffolk. May 17, 1906.)
1. CARRIERS-PASSENGERs—INJURIEs—NEGLIGENCE—QUESTION FOR JURY. Evidence in an action against a street railway company for injuries to a passenger riding on the front platform of a car, received while attempting to alight in consequence of the sudden starting of the car, examined, and held, that the question of the company's negligence was for the jury, in the absence of proof of rules relating to passengers riding on the platform : evidence that the passenger knew of such I'UlleS. 2. SAME-CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY. Evidence in an action against a street railway company for injuries to a passenger riding on the front platform of a car, received while attempting to alight in consequence of the sudden starting of the car, examined, and held, that the question of his contributory negligence was for the jury, in the absence of evidence of rules relating to passengers riding on
the front platform and evidence that the passenger knew of such rules.
3. SAME—RULES REGULATING THE TRANSPORTATION OF PASSENGERS—EFFECT. Where a carrier establishes a rule either prohibiting passengers from riding on the front platform of its cars, or stating that if passengers ride on the front platform they do so at their own risk, a passenger, who with knowledge of the first rule, intentionally violates it, or with knowledge of the second rule chooses to take , the risk, cannot recover for an injury thereby received. [Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, § 1378.]
4. SAME-PROOF OF RULES. That a street railway company had established a rule providing that if passengers chose to ride on the front platform of a car, they did so at their own risk, may be proved by the testimony of a passenger riding on the front platform of the car and suing for injuries received while alighting from the car. 5. SAME. Where a passenger knew that on certain cars of a street railway company there Was a notice stating that passengers choosing to ride on the front platform did so at their own risk, it was not necessary for the company, in order to defeat an action by the passenger for injuries received while alighting from the front platform of a car, to prove that he also had seen such notice on the particular car on which he was riding. 6. SAME–WAIVER OF RULES. That a street railway company regularly permitted passengers to ride on the front platform of its cars, did not show a waiver on its part of a rule providing that if passengers chose to ride on the front platform, they did so at their own risk. 7. EVIDENCE—DECLARATION OF SERVANT. Admissions of liability made by a servant who is not a general agent or while not engaged in the performance of a duty are inadmissible to bind the master. 8. SAME. . Proof that a motorman stated immediately after an accident to a passenger sustained while attempting to alight from a car that he was under the impression that the passenger had previously left the car was admissible in support of the passenger's claim that he was thrown off by the sudden jerk of the car occasioned by the negligence of the motorman. 9. APPEAL – HARMLESS ERROR – ERRONEOUS EXCT. USION OF EVIDENCE. Where, in an action against a street railway company for injuries received by a passenger while attempting to alight from a car, there was a failure to show a violation of any duty owed by the company to the passenger the erroneous exclusion of evidence proving a statement made by the motorman immediately after the accident, was immaterial.
Exception from Superior Court Suffolk County; Elisha B. Maynard, Judge.
Action by Thomas McDonough against the Boston Elevated Railway Company. There was a verdict for defendant, and plaintiff excepts. Exceptions overruled.
Jas. E. Cotter, B. R. Doody, and Conrad Reno, for plaintiff. Choate, Hall & Stewart, for defendant.
BRALEY, J. If the version of the accident given by the defendant’s witnesses was accepted, the plaintiff observing that he was being carried beyond his destination, after being Warned of the danger, jumped from the car While it was moving. Although it was uncontroverted that at the time he Was riding on the front platform, his evidence in Substance Showed that after informing the motorman where he wished to get off, and Who indicated his assent, later noticing that the car had passed beyond this point, he again Spoke, and the brake was applied, when, as the plaintiff was preparing to alight, the brake being released, the car suddenly moved forward and by its momentum caused his grasp on the hand rail to be loosened, and ejected him into the street. Upon this conflicting evidence the jury could have found that, with knowledge of the motorman, a pasSenger Was preparing to terminate the contract of carriage in the ordinary way, and for this purpose as the car was being brought to a stop, without again observing the plaintiff's position, he negligently released the brake. It also could have been found that the plaintiff rode on the front platform because the car was somewhat crowded, and discovering that he would have to stand preferred “to stand outside.” By reason of these divergent narratives if nothing further appeared, it is plain that the usual issues of the defendant’s negligence, and of the due care of the plaintiff were matters of fact for the determination of the jury under appropriate instructions. Corlin V. West End St. Ry. Co., 154 Mass. 197, 27 N. E. 1000; Sweetland V. Lynn & Boston St. Ry. Co., 177 Mass. 574, 59 N. E. 443, 51 L. R. A. 783; Lapointe v. Middlesex St. Ry. Co., 144 Mass. 18, 10 N. E. 497; Cummings v. Worcester, Leicester & Spencer St. Ry. Co., 166 Mass. 220, 44 N. E. 126; Block v. Worcester, 186 Mass. 526, 527, 72 N. E. 77. It, however, has been settled, that where a common carrier of passengers operating a railway by whatever motive power, establishes a rule either prohibiting such use, or Stating that if passengers while in transit chose to ride on the front platform, they do So at their own risk, a passenger Who With knowledge of the first rule intentionally violates it, or of the second rule and chooses to take the risk, and is thereby injured cannot recover. Sweetland V. Lynn & Boston St. Ry. Co., ubi supra; Wills V. Lynn & Boston R. R. Co., 129 Mass. 351; Burns v. Boston Elevated Ry. Co., 183 Mass. 96, 66 N. E. 418. There was no direct proof offered by the defendant that it made and promulgated a general rule of the Second class, but Such a regulation may be proved from the testimony of the passenger himself. Burns V. Boston Elevated Ry. Co., ubi supra. In cross-examination, after stating that he had frequently ridden on the cars, the plaintiff further said that he had given little, if any, attention to a sign displayed on the window, and when asked if he knew “there Was One there about riding on the front platform,” answered that he did not know if there Was Such a notice. This answer was followed by a general ques
tion in these Words, “But you had noticed. On the front platform, that people who rode on the front platform, or got on and off on the front platform, did so at their own risk?” “You had noticed that On the CarS2” to Which the plaintiff replied, “Yes, sir, I had.” If the plaintiff denied having Observed a simi lar notice on the Window of this car he also admitted knowledge of the existence of this rule. The object of the notice which embodied the rule, was to warn passengers of the danger, and also to charge them alone With the consequences which might follow, if they chose to disregard it. But if from previous Observation Such warning and consequent assumption of liability were known to the plaintiff, it was unnecessary for the defendant to go further, and prove that he also had seen the notice on the particular car where he was riding, for such knowledge, followed by his choice of position, would operate to bar his recovery. Cheney V. Boston & Maine R. R., 11 Metc. 121, 123, 45 Am. Dec. 190; O'Neill v. Lynn & Boston R. R. Co., 155 Mass. 371, 29 N. E. 630. From the undisputed evidence of the motorman it could be found not only that the gates were Open, but that it was a common Occurrence for passengers regularly to ride On the front platform without objection, unless there Were too many On that end, a condition not appearing in the present case, and the plaintiff claims that the question whether the rule had not been Waived should have been submitted to the jury. It is undoubtedly true that a general usage, or course of business, may be proved by one witness. Jones v. Hoey, 128 Mass. 585. But in permitting its cars to be regularly operated by inviting passengers to ride on the front platform, even if open for their accommodation, the defendant was not acting inconsistently with its right to insist on the rule, as the choice of riding there or inside the car was still left Optional even upon the plaintiff’s evidence. The distinction between prohibiting such use of the platform, and then Waiving the prohibition by regularly opening it for the accommodation of passengers, Or permitting them to ride there at their OWn risk is ObViOuS. In the first instance the restriction is absolute until abandoned, and the abandonment may be implied from the conduct of the carrier; while in the last the platform is left unreservedly open, yet the opportunity of carriage thus afforded is furnished only upon condition that the passenger occupying this part of the car takes the chance of injury that may be caused by reason of the exposed position. Sweetland V. Lynn & Boston R. R. Co., ubi supra; Burns v. Boston Elevated Ry. Co., ubi Supra. A question of evidence remains. Admissions of liability made by a servant who is not a general agent, or while not engaged in the performance of his duty are inadmissible to bind the master, but the testimony, that the motorman immediately afger the accident