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Stover & SWeetser and Geo. A. & Nelson P. Brown, for plaintiff. Chas. A. Noyes and J. Ralph Weilman, for defendant.

HAMMOND, J. These two actions were tried together. At the trial it was admitted that the defendant Was the OWner Of the premises Where the accident occurred, and that at the time Of the accident the relation Of landlord and tenant existed between the defendant and the plaintiff Russell E. Andrews. The evidence was undisputed that the plaintiffs began to occupy the premises in February, 1902, and had continued such occupation up to the time of the accident which occurred in June, 1903; that the building “was a double tenement house with an upper and a lower flat,” the plaintiffs occupying the lower flat and one Davis Occupying the upper flat; that there was a front entrance to the house and a Side entrance; that at the side entrance there Was a flight of five steps used in common by both tenants; and that these steps were out of doors, being the means of entrance to the Side door. The plaintiff, Margaret, the wife of the plaintiff Russell, was injured by the breaking of One of these steps as She Was passing Over it. At the trial it seems to have been a SSumed that the steps were not leased to either tenant, but were retained in the control of the defendant, and the arguments before us have proceeded upon the same assumption. The question therefore in substance may be stated thus: What is the nature Of the duty owed by a landlord to a tenant as to the care and repair of a stairway over which the tenants have only a right of Way in Common, and which is kept within the control Of the landlord? In Quinn V. Perham, 151 Mass. 162, 163, 23 N. E. 735, the law on this subject is thus stated by C. Allen, J.: “The general rule, that a landlord does not by implication Warrant the fitness for use Of a demised tenement, is not applicable to a common passageowned by the landlord by which several tenements demised by him are reached. Watkins V. Goodall, 138 Mass. 533. The landlord’s duty in respect to such passage is that of due care to keep it in such condition as it was in or purported to be in at the time of the letting. But he is not bound 'o change the mode of construction. Woods v. Naumkeag Steam Cotton Co., 134 MaSS. 357, 45 Am. Rep. 344. Lindsay V. Leighton, 150 Mass. 285, 22 N. E. 901, 15 Am. St. Rep. 199. If the only access to demised premises is by means of a ladder or a rough unprotected staircase which is little better than a ladder, a tenant who enters into possession knowing the facts must be content to take the risk. So if the floor of a passageway is laid with loose boards he cannot complain that it is not made fast and tight.” The phrase “in such condition as it was in or purported to be in at the time of the let

ting” means such condition as it would appear to be to a person of ordinary observation, and has reference to the Obvious condition of things existing at the time of the letting. In a word, the landlord is not obliged to Change the Visible form and mode Of Construction in Order to make the place Safe, nor is he bound to remove obvious Sources of danger. As to these the tenant takes the risk. Stated in another Way, the general duty is upon the landlord to use reasonable care to keep the stairway Safe for his tenantS, With the proViso that the tenant impliedly agrees that he will take the arrangement and mode Of Construction as they manifestly are, and will not call for any change to relieve from obvious dangers. Whatever may be the rule elseWhere, and notWithstanding Some dicta in our reports Seemingly to the contrary, Such, We think, must be regarded as the law established by the decisions of this commonWealth. With this view of the law We proceed to the examination of the particular features of this case. The first request that there Was no sufficient evidence to Warrant a Verdict for the plaintiff was rightly refused. Upon the evidence the jury could have found that the steps were apparently Sound at the time of the letting, that the plaintiff was in the exercise of due care, and that the defendant did not exercise due Care to keep the steps in the condition in which they appeared to be at the time of the letting. The second and third requests also Were properly refused. They did not properly state the law. The exceptions to the refusal to give these rulings are therefore untenable. The record states that the defendant also excepted to “such part of the charge as states that the landlord is liable if she ought to have known of the defect.” In considering this exception we have been somewhat embarrassed by the way in which the case comes to us. The Whole charge covering 4% printed pages is before us, and neither in the record nor in the brief of the defendant is there any specification of the precise words upon which 'the exception is based. The defendant however Contends at the end of the brief that “the Court, in its charge to the jury and in its refusal to give the instructions requested, Substantially made the defendant landlord an insurer of her tenants against injury arising in any manner whatsoever from defects in common passageways, irrespective of their condition at the time of the letting.” We have examined the charge and do not find this criticism Well founded. Taking the charge as a whole and the various sentences in their proper setting, and applying them to the particular facts of this case, the fair construction of it upon this point is that, if the defect of Which the plaintiffs complain Was obvious at the time of the letting, then the defendant was not liable; but that if the steps appeared strong and safe at the time of the letting then the defendant WaS bound to use due care to keep them in the condition in which they thus appeared to be. As thus construed the charge Was apt and correct. Exceptions overruled.

(193 Mass. 76) McCARTY v. CLINTON GASLIGHT CO.

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 16, 1906.)

DEATII – CONTRIBUTORY NEGLIGENCE – EVI

DENCE. Where, in an action for the death of an employé, in charge of an engine, who was found dead on the floor of the engine room in the passageway between the revolving fly wheel and the wall of the building with his skull cut off, there was no evidence as to what he was doing at the time of the accident, there could be no recovery for his death, for, to justify a recovery, there must be evidence showing that he was in the exercise of due care. [Ed. Note:-For cases in point, see vol. 15, Cent. Dig. Death, §§ 25, 26, 93.] Exceptions from Superior Court, Worcester County; Edward P. Pierce, Judge. Action by Ellen McCarty against the Clinton Gaslight Company to recover for the instant death of her husband. The court, at the close of plaintiff's evidence, directed a verdict for defendant, and plaintiff excepts. Exceptions overruled.

John R. Thayer, Henry H. Thayer, and Amos T. Saunders, for plaintiff. Herbert Parker, Chas. C. Milton, and Geo. A. Gaskill, for defendant.

KNOWLTON, C. J. It is unnecessary to consider other parts of this case, for there is nothing to show that the plaintiff's husband, at the time of the accident, was in the exercise of due care. He was found dead on the floor of the engine room, in the passageway between the rapidly revolving fly wheel and the wall of the building. He was the engineer in charge of the engine, and no One else was present at the time of the accident. His skull was cut off, and it seems likely that this was done by the fly Wheel Or Some of its attachments. If it is possible that the accident happened while the deceased Was in the exercise of due care, it is equally possible and more probable that his negligence was one of the causes, if not the sole cause, of his death. In Tyndale V. Old Colony R. R. Co., 156 Mass. 503, 31 N. E. 655, this court said: “Where there is an entire absence Of evidence aS to what the person killed was doing at the time of the accident, it is not enough to show that one conjecture is more probable than another. There must be some evidence to Show that he was in the exercise of due care.” Similar language is used in Gleason v. Worcester Consolidated St. Ry., 184 Mass. 290, 68 N. E. .225. See, also, Shea V. B. &

M. R. R., 154 Mass. 31, 27 N. E. 672; Cox v. South Shore & Boston St. Ry. Co., 182 Mass. 497, 499, 65 N. E. 823; Irwin v. Alley, 158 Mass. 249, 33 N. E. 517; Felt v. B. & M. R. R., 161 Mass. 311, 37 N. E. 375; Mathes v. Lowell, etc., Ry. Co., 177 Mass. 416, 59 N. E. 77; Murphy v. B. & A. R. R. Co., 167 Mass. 64, 44 N. E. 1087. Exceptions overruled.

(193 Mass. 130) ORMANDROYD v. FITCHEURG & L. ST. R. CO.

Judicial Court of Massachusetts. Worcester. Oct. 16, 1906.)

CARRIERS–STREET RAILROADS–PROTECTION OF PASSENGERS. Nearly all day on July 4, 1905, one O. had been discharging a cannon loaded with blank cartridges from his yard toward the Street on which defendant's street railway was operated. When the cannon was fired a jet of flame and smoke extended as far as the sidewalk, but several feet short of defendant’s tracks, and defendant had no reason to anticipate any danger to its passengers from such source. About 5:30 p. m. plaintiff, a passenger on defendant's street car, was struck and injured by a wad shot by O. from the cannon. Held, that the street car company was not negligent in failing to anticipate danger to passengers from such source, nor in failing to ascertain whether the cannon was properly loaded or pointed.

Exceptions from Superior Court, Worcester County; Edwd. P. Pierce, Judge.

Action by Sarah E. Ormandroyd against the Fitchburg & Leominster Street Railroad Company. A verdict was directed in favor of defendant, and plaintiff brings exceptions. OVerruled.

(Supreme

Plaintiff was a passenger on defendant’s street car on July 4, 1905, and as she Was passing the premises of one Ouellet, who was not an employé or officer of the defendant, she was struck by the wadding of a cannon Which Ouellet Was discharging as a part of his Fourth of July celebration from his premises.

C. H. Blood, for plaintiff. Chas. F. Baker and Walter P. Hall, for defendant.

HAMMOND, J. The evidence did not warrant a finding of negligence on the part of the defendant. The accident happened about half past five in the afternoon, on July 4, 1905. With the exception of one or two rests, each lasting less than an hour, one Ouellet, who seems to have devoted the day to a patriotic celebration, had been discharging the cannon “practically all day since 4 o'clock in the morning until the time of the accident, as Often as it could be loaded, Which took from 5 to 15 minutes.” Ever since half past 5 in the morning the cars of the defendant had been passing by this locality, so that up to the time of the accident several hundred cars had passed. It was a day for fireworks of every description. The cannon was loaded With blank cartridges, and was in Ouellet's yard, quite a distance from the street, sending out “a jet of flame and a voltime of Smoke as far as the sidewalk,” Several feet Short of the defendant’s car trackS. The defendant had no reason to anticipate any danger to its passengers from such a source. Nor was it bound to stop its car and investigate for the purpose of seeing whether the cannon Was properly loaded or pointed. The firing had been going on all day and, in the absence of any indication to the contrary, the defendant had the right to assume that it was not a hostile demonstration against the travelers upon the highway, but Was a simple ebullition of patriotic emotion, and as such was harmless. To require a street railway corporation to have a general Oversight of the details of Such exhibitions along the line of the highway on the anniversary of the Declaration of Independence, and to hold it responsible for the consequences to its passengers of any neglect of the exhibitors would be unreasonable. Such care would be inconsistent with the proper transaction of the business. It might keep the passengers safe, but the cars would practically be at a standstill most of the time and their proper efficiency would be greatly impaired. The case widely differs from those cases where the railway corporation has reaSon to anticipate danger from a crowd of rioters or other outside parties or causes. Exceptions overruled.

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BRALEY, J. Unless the jury should have been instructed that as matter of law either the infant plaintiff was careless, or that there Was no evidence of the defendant'S negligence, the verdicts in favor of his father and of himself must Stand. In lawfully using the public ways concurrently with the defendant, the plaintiff as a traveller was required to exercise only such degree of care as under like conditions would have been exercised by the Ordinarily prudent child of his years. McDermott v. Boston Elevated Railway Co., 184 Mass. 126, 68 N. E. 34, 100 Am. St. Rep. 548; Young v. Small, 188 Mass. 4, 5, 73 N. E. 1019; Slattery v. Lawrence Ice Co., 190 Mass. 79, 76 N. E. 459; Sullivan V. Boston Elevated Railway Co., 191 MaSS. —, 78 N. E. 382. At the time of the accident he was about eight years of age, and while on his way to the common was obliged to croSS Main Street which ran north and South. In this Street Were located tracks Of the Company OVer which cars were frequently passing, and With knowledge of these conditions Seeing a car slowly moving past the plaintiff waited between this car and the sidewalk until it had passed, and then after listening, and not hearing any bell, which from his former observation was always rung When a Car passed this point, or seeing any car except at Some distance to the South, Started to cross over. Upon reaching the middle of the track used by cars going north, he saw a car coming, and jumping back to avoid it, was struck by the underside of the running board, and thrown under the wheels of the rear truck. It is plain, if this part of his narrative was believed, that while the plaintiff's view of the tracks from where he stood was unobstructed, there was no attempt to take the risk of getting over Safely in front of an oncoming car moving at a high rate of speed as was the fact in Murphy v. Boston Elevated Railway Co., 188 Mass. 8–10, 73 N. E. 1018. Instead he listened for the ringing of the bell, and not hearing the warning, nor seeing any car except at a distance, he proceeded to cross the street. If from his evidence the inference could have been drawn that he was struck by this car as the defendant contends, instead of by another car as claimed by him, such an inference was a question of fact to be determined by the jury. But if this contention was found to be sustained this fact would not have been conclusive of his right to recover, for at most, even if he had been an adult, it would have been evidence to be considered as bearing on the degree of care which he should have used. Silva V. BOSton Elevated Railway Co., 183 Mass. 249, 66 N. E. 808. It also could have been found that the plaintiff's conduct might hae been influenced by the further fact that Other travelers Were passing Over at the time, and using SuCh judgment as boys of his age ordinarily possess he considered it prudent to follow, Aiken v. Holyoke Street Railway Co., 180 Mass. 8, 61 N. E. 557; McDermott v. Boston Elevated Railway Co., 184 Mass. 126, 68 N. E. 34, 100 Am. St. Rep. 548; Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224. Under suitable instructions which presumably were given as no exceptions were taken to the charge, upon all the evidence the question of the due care of the plaintiff was for the jury to determine. Howland v. Union Street Railway Co., 150 Mass. 86, 22 N. E. 434; Rosenberg v. West End Street Railway Co., 168 Mass. 561, 47 N. E. 435; McNeil v. Boston Ice Co., 173 Mass. 570, 577, 54 N. E. 257; O'Brien V. Hudner, 182 Mass. 381, 65 N. E. 788. The evidence as to the position of the plaintiff immediately before he was injured was conflicting. According to the testimony introduced by the defendant he ran directly back of the car which was going south, and at once came into contact about midway of its length with the car coming from the South and going north. But according to the evidence of the plaintiff, who was corroborated by other Witnesses, he did not croSS until after the car going South had passed, and had reached the middle of the easterly track, about ten feet in front of a car, Which WaS moving at a speed not to exceed four miles an hour. It was undisputed that notwithstanding a rule of the company requiring the gong to be rung at all Street Crossings, and at all points where vehicles or foot passengers were crossing, or ordinarily would be likely to cross the tracks, this signal was not given by the motorman, and that if the emergency brake had been applied the car could have been stopped within a distance of from three to five feet. The jury were not bound to adopt the defendant's theory of the accident, Or to accept the evidence of its Witnesses. If they believed the plaintiff's statement as being a true version of his conduct, and of the management of the car by the defendant's servant they could find that the motorman not only neglected to give the required warning, but failed to observe the plaintiff, who was in front of the car near the middle of the track, and that if he had used reasonable diligence he would have Seen him, and observing his peril at Once should have applied the emergency brake, and that if this precaution had been taken, or the gong rung the accident would have been avoided. Stevens V. Boston Elevated Railway Co., 184 Mass. 476, 479, 69 N. E. 338. These inferences were questions of fact solely for their consideration. Sweetland V. Lynn & Boston Railway Co., 177 Mass. 574, 59 N. E. 443, 51 L. R. A. 783; Driscoll v. Boston Elevated Railway Co., 159 Mass. 142, 147, 34 N. E. 171; Aiken V. Holyoke Street Railway Co., ubi supra; Doyle v. West End Street Railway Co., 161 Mass. 533, 37 N. E. 741; Stevens V. Boston Elevated Railway Co., ubi Supra. Exceptions overruled.

(192 Mass. 591) COMMONWEALTH V. PHELPS.

(Supreme Judicial Court of Massachusetts. Berkshire. Oct. 16, 1906.)

1. RECEIVING STOLEN GOODS—EVIDENCE—ADMISSIBILITY. On a prosecution for receiving and aiding in the concealment of stolen goods, though possession out of the commonwealth of goods stolen in the commonwealth would not warrant a conviction for receiving them and aiding in their concealment in the commonwealth, evidence of such possession would be competent against defendant. 2. SAME—INSTRUCTIONS. On a prosecution for receiving and aiding in the concealment of stolen goods the court instructed, with reference to the knowledge of defendant that the goods were stolen, that he would be guilty if, when he received the goods, he knew or believed that they had been stolen, or if at any time thereafter, or while he had the goods or any of them in the state, he knew or believed that the goods were stolen. Held, that the jury must have understood that, in order to convict, they must find that defendant acquired a guilty knowledge or belief when the goods first came into his possession in the state, or while they were in his possession subsequently in the state, and hence there was no error in refusing a requested instruction to the effect that, if defendant had no knowledge or belief until after the goods had been shipped out of the state, he could not be convicted. 3. SAME. On a prosecution for receiving and aiding in the concealment of stolen goods the court instructed that if defendant honestly believed the statements of the seller that he had purchased the goods defendant could not be convicted. Held, that in view of such instruction there was no error in refusing a requested instruction to the effect that the jury might consider what manner of man the seller had been prior to the transaction. 4. CRIMINAL LAW-INSTRUCTIONS—WEIGHT OF TESTIMONY OF ACCOMPLICE. Thore is no rule requiring the court to instruct as to the weight to be given to the testimony of an accomplice. [Ed. Note.—For cases in point, see vol. 15. Cent. IDig. Criminal Law, § 1859.]

Exceptions from Superior Court, Berkshire County; John C. Crosby, Judge.

George L. Phelps was convicted of receiving and aiding in the concealment of stolen goods, and he brings exceptions. Exceptions Overruled.

John F. Noxon, Dist. Atty., for the Commonwealth. Herbert C. Joyner, for defendant.

MORTON, J. This is an indictment in three counts for receiving and aiding in the concealment of stolen goods. There was a Verdict against the defendant on all of the counts, and the case is here on exceptions by him to the refusal of the Court to instruct the jury as requested.

Taking the exceptions which have been argued in the order of the requests to which they relate, the first Was to the refusal of the Court to instruct the jury as follows: “1. That if the jury find that the defendant Phelps did not know that the goods had been stolen until after they had been shipped to Troy, New York, then his connection with them, Out of the commonwealth will not warrant a conviction on this indictment. 2. That if defendant did not knoW and had no reasonable ground to SuSpect that the goods had been stolen until after they were shipped out of this state, and after that time had nothing more to do With the goods in this state, then the jury Will not be justified in finding the defendant guilty.” Taking the requests literally, it may well be doubted whether they raise the point Which the defendant has argued, and whether in any aspect of the case they could have been properly given. Although possession out of the commonWealth of goods stolen in the commonwealth Would not of itself Warrant a conviction for receiving them and aiding in their concealment here, evidence of such possession would be competent against One accused of that Offense. But assuming that the requests were intended to raise and did raise the question whether a guilty knowledge or belief first acquired outside of the state would warrant a conviction, we think that if there was any evidence warranting such a contention, the matter was sufficiently covered by the charge. Phelps was a Witness in his own behalf and admitted receiving the goods in Williamstown but denied any guilty knowledge or felonious intent, and testified that he “never knew the goods were stolen until he was arrested.” He did not contend or testify that he first acquired such knowledge outside of the state. There would seem, therefore, to have been no evidence warranting a conclusion that he first obtained knowledge that the goods Were Stolen Outside the common Wealth. But the court instructed the jury as follows: “With reference to the knowledge or belief of the defendant that these goods were stolen property, I instruct you that he would be guilty if when he received these various lots of goods he knew or believed that they had been stolen or if at any time thereafter and While he had these goods or any portion of these goods in the State Of Massachusetts he knew Or believed that the goods were stolen property.” We think it plain that the jury must have understood that in order to convict they must find that the defendant had acquired a guilty knowledge or belief when the goods first came into his possession which was in this state or while they were in his possesSiOn Subsequently in this State. The instructions requested were therefore given in Substance and that Was all that Was required. The next exception was to the refusal of the Court to instruct, as in substance requested, that, as bearing on the question whether the defendant honestly believed that the goods had not been stolen, the jury might consider what manner of man Dooley had been prior to his connection with the defendant, and what the defendant hon

estly believed as to his integrity, and that it was enough if the defendant dealt with Dooley in the same way that reasonable men Would deal under like Circumstances. The attention of the jury was not specifically directed to the matters thus referred to, but their attention Was directed to the fact that the defendant claimed that Dooley had told him that he had purchased the goods and that he, the defendant, understood they had been purchased by Dooley, and the jury were instructed that if he honestly believed that, if they found that Dooley did make Such a Statement to him and he acted in good faith supposing that statement to be true and acted in good faith throughout, he Could not be convicted.

In passing upon the defendant’s good faith the jury Would necessarily have to take into account his conduct, and if they found that Dooley told him what he testified that he did then they would have to consider whether he was justified in believing what Dooley told him and the grounds for such a belief amongst which would naturally be his knowledge and belief in regard to Dooley’s standing and honesty. If they did not believe that Dooley told him what he testified that he did and believed Dooley as to the circumstances under which the goods came into the defendant’s possession then Of course any question as to the defendant's belief in Dooley's integrity became entirely immaterial. The instructions given were therefore Sufficient and the defendant Was not harmed by the refusal to give those Which Were requested.

The last exception was to the refusal to instruct the jury as to the suspicious character of the testimony of an accomplice, and to advise them that such testimony should be carefully considered, and was unsafe to convict upon unless corroborated. The instruction thus requested related to Dooley's testimony. General instructions in regard to the credibility of the witnesses were given, and, Whatever the practice may be, it is enough to say of the instruction thus requested that there is no rule of law requiring the Court to instruct a jury as to the weight to be given to the testimony of an accomplice. Com. v. Bishop, 165 Mass. 148, 42 N. E. 560; Com. V. Clune, 162 Mass. 206, 38 N. E. 435.

Exceptions overruled.

(193 Mass. 26) MOYNIHAN v. CITY OF HOLYOKE.

(Supreme Judicial Court of Massachusetts. ampden. Oct. 16, 1906.)

1. MUNICIPAL CORPORATIONS - DEFECTIVE SIDEWALK—INJURIES TO PEDESTRIAN—QUESTION FOR JURY. Rev. Laws, p. 527, c. 51, § 18, provides that if one sustains bodily injury by reason of a defect or a want of repair in or upon a highway, which injury might have been prevented or remedied by reasonable care or diligence on the part of a city liable by law to repair the

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