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This Was an action of tort to recover damages for personal injuries received by plaintiff while in defendant's employ. The case was submitted to the jury upon the third count of plaintiff’s amended declaration, all the other counts being waived by plaintiff. Plaintiff’S amended declaration : “* * * Count 3. And the plaintiff says that he, on the sixteenth day of January, 1904, was in the employ of the defendant; that by reason of the negligence of Some person in the Service Of the defendant, entrusted With and exercising superintendence, whose sole or principal duty that of Superintendence, the plaintiff, While in Said employ, and While in the exercise of due care and diligence, Was injured, and suffered great pain of body and anguish of mind, and paid out large sums of money for medicines and medical attendance; that due notice of the time, place and cause of the injury, has been given to the defendant by the plaintiff. * * *” AnSWer: “NOW Comes the defendant in the above entitled case and denies each and every material allegation in the plaintiff's Writ and declaration contained.” Plaintiff's specifications: “* * * That under the third count of his declaration, the name of the person in the service of the defendant, and intrusted with and exercising Superintendence, and whose job or principal duty was that of superintendence, is one L’Heureux, he is informed, Who Was the Second hand of the same in Which the plaintiff Was hurt; that he was negligent in authorizing, permitting or directing the carriage of the mule which the plaintiff was cleaning to be Set in motion While the plaintiff was engaged in the performance of his duties in Cleaning Said mule, Or in failing to give the plaintiff notice Or Warning that work Was to be done On Said mule Which might involve the plaintiff in danger, and permitting the plaintiff to continue to be engaged in said cleaning without such Warning and of the danger incident thereto. * * *” The jury assessed the damages at $300.

T. D. O'Brien, for plaintiff. Brooks & Hamilton, for defendant.

HAMMOND, J. While the evidence Was conflicting and would have warranted a finding for the defendant On Several matters eSsential to the maintenance of the plaintiff's case, still we cannot say as matter of law that it did not warrant findings that the plaintiff, being at the time of the accident in his sixteenth year, believed that the mule was stopped for the purpose of being cleaned, and was justified in that belief; that it was the plaintiff's duty then to clean it, and that in the performance of that duty he proceeded to clean it; that he did not know and had no reason to think that repairs were to be made upon the mule while he was cleaning it; and that While thus at WOrk he exercised due care according to the lights he had.

The evidence further Warranted findings

that L'Heureux was a person whose principal duty was that of superintendence (Malcolm v. Fuller, 152 Mass. 160, 25 N. E. 83; Prendible v. Connecticut River Mfg. Co., 160 Mass. 131, 35 N. E. 675; Knight V. Overman Wheel Co., 174 Mass. 455, 54 N. E. 890, and cases therein cited), and that he was negligent in his duty to the plaintiff in permitting the carriage to be moved without taking some steps to ascertain where the plaintiff was and, if necessary, to give him notice in time to Save himself. Such findings are sufficient to maintain the plaintiff's case.

The plaintiff under the statute upon which the third COunt is based did not aSSume the risk Of this carelessness Of L'Heureux. “The risk which the Workman assumes by virtue Of his COntract Of employment does not include the risk arising from the negligent act of a superintendent.” Murphy v. City Coal Co., 172 Mass. 324, 327, 52 N. E. 503, and Cases cited.

Exceptions overruled.

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that there has been unreasonable delay by the party seeking it in the enforcement of his rights, nor when the injury complained of is not serious or substantial and may be readily compensated in damages, while to restore things as they were before the acts complained of would subject the other party to great inconvenience and loss.” Morton, J., in Starkis V. Richmond, 155 Mass. 188, 195, 196, 29 N. E. 770, citing 2 Story, Eq. Jur. 959a ; Kerr on Injunctions (1st Am. Ed.) 231; Royal Bank of Liverpool v. Grand Junction Railroad, 125 Mass. 490; Lewis V. Chapman, 3 Beav. 133; Gookin V. Balls, 13 Ch. D. 324; Aynsley V. Glover, L. R. 18 Eq. 544.

No discussion is required to show that upon the facts found by the master this case is One which calls for the application of this principle. It is manifest that to restore things to the former situation would subject the defendants to great inconvenience and loss and is inequitable, and that the decree ordered by the trial court sufficiently provides for the wants of the plaintiff as to the right of way. She should however have recompense for the damages in the past, and the bill may be retained to assess Such damages. Jackson V. Stevenson, 156 MaSS. 496, 31 N. E. 691, 32 Am. St. Rep. 476. As thus amended the Order for the decree is to stand, unless the plaintiff within 30 days from the filing of the rescript in this case shall file a rejection of the new right of way proposed as a Substitute, and Shall ask full

damages for the permanent loss of the right of way without such substitution, in which case the bill may be retained to assess such damages or may be dismissed without prejudice to her right to an action at law for damages, as She may elect.

SO Ordered.

(193 Mass. 133)

THOMPSON v. GARDNER, W. & F. ST. RY. CO. (two cases).

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 17, 1906.)

1. CARRIERS–STREET RAILROADS—PLACE TO ALIGHT-STREETS-SAFETY. A public street in a town is not to be regarded as a passenger station for the safety of which a street railway company is responsible, when used by passengers as a place to alight. [Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, $$ 1224, 1230, 1231.]

2. SAME—WARNING.

Plaintiff, a passenger on a street car, alighted at night from the “sidewalk side” of a car and was injured by stepping into a gutter between the car track and the sidewalk, which gutter was similar to those ordinarily maintained in streets in country towns. Held, that the conductor of the car was entitled to assume that plaintiff was familiar with the existence of the gutter, and was therefore not guilty of negligence in failing to warn her of its existence.

Exceptions from Superior Court, Worcester County; Charles A. De Courcy, Judge. Actions by Margaret and Walter Thompson

against the Gardner, Westminster & Fitchburg Street Railway Company. A verdict was directed in favor of defendant, and plaintiffs bring exceptions. Overruled.

Joseph P. Carney and John T. McGrath, for plaintiffs. James A. Stiles and Walter R. Dame, for defendant.

HAMMOND, J. These two actions brought to recover for damages by reason of injuries received by the plaintiff in the first action were tried together. We shall speak only of the first because the Second stands or falls With it.

The defendant's track ran by the side of the road; and between the track and the sidewalk there was a gutter in the form of a ditch 1 foot wide and 1 foot deep, the nearest line of the ditch being 21% feet from the nearest rail of the track. The car stopped for passengers to alight. It was about 8 o'clock in the evening of the 16th day of August. As to the circumstances the plaintiff testified that when the car stopped she stood up to get off on the “usual side,” “the left hand side”; that “there were people Standing between her and the left hand side (which was the street side); that she was standing facing the front of the car with her right hand toward the sidewalk; that she saw the conductor go around to the sidewalk side of the car; that he passed right by them [herself and a little girl who was with her] and did not offer to help her off; that she heard one bell rung, and * * * [the] little girl with her hopped off, and then another bell rung, and she stepped onto the running board and then stepped off (on the sidewalk side) from the car, as ‘she thought the car was going to start up’; that she stepped off with her left foot and stepped right into the ditch; that the bell did not ring but once, and that after the little girl stepped off it rang again; that when she got onto the running board she stood facing the sidewalk and looked out toward the sidewalk and saw what she thought was level ground; that there were no lights there; * * * that when She stepped into the ditch she was hurt.”

The car did not Start until after She had alighted. The place where the car stopped was a part of the highway over which the defendant had no control. The case is thus distinguishable from cases like Joslyn v. Milford, Holliston & Framingham Street Railway, 184 Mass. 65, 67 N. E. 866. “The Street is in no sense a passenger station for the safety of which a street railway company is responsible.” Barker, J., in Creamer v. West End Street Railway, 156 Mass. 320, 321, 31 N. E. 391, 14 L. R. A. 490, 32 Am. St. Rep. 456. The plaintiff however contends that it was the duty of the conductor to caution her against Stepping into the gutter, and that his failure to do so was negligence. But this contention is untenable. Gutters like the one described are not uncommon features of

*streets in our country towns. They are generally between that part of the highway which is wrought for public travel and the sidewalk. The plaintiff knew that she was alighting from the car upon the “sidewalk side,” and the conductor may well have asSumed that She Was familiar with the existence of gutters and would govern herself accordingly. His failure to Warn her was not negligence. See Bigelow V. West End Street Railway, 161 Mass. 393, 37 N. E. 367.

It is unnecessary to consider what would have been the duty of the conductor had there been Some unusual cavity into which she was likely to fall.

Exceptions in each case overruled.

2-3 (193 Mass. 147) FARRIGAN V. PEVEAR et al.

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sole purpose is to furnish relief to destitute and deserving people, and therefore constitutes a valid public charity. Bartlett v. Nye, 4 Metc. 378, 380; Odell v. Odell, 10 Allen 1,4; Jackson v. Phillips, 14 Allen, 539; Sherman v. Congregational Home Missionary Society, 176 Mass. 349, 57 N. E. 702; Minot v. Atty. Gen., 189 Mass. 176, 179, 75 N. E. 149. At the outset it may be said that the case of Davis v. Central Congregational Society, 129 Mass. 367, 37 Am. Rep. 368, on which the plaintiff relies, and that of Smethurst v. Proprietors of Independent Congregational Church in Barton Square, 148 Mass. 261, 19 N. E. 387, 2 L. R. A. 695,

12 Am. St. Rep. 550, are not authorities in his favor, as the question of the liability of a public charity for the negligence of its servants or agents does not appear to have been raised or decided. See, Minns v. Billings, 183 Mass. 126, 66 .N. E. 593, 97 Am. St. Rep. 420; Osgood v. Rogers, 186 Mass. 238, 240, 71 N. E. 306; Compare Chapin v. Holyoke Young Men's Christian Association, 165 Mass. 280, 42 N. E. 1130, and Donnelly v. Boston Catholic Cemetery Association, 146 Mass. 163, 15 N. E. 505. Under the authority of McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529, if the home had been incorporated the plaintiff could not have maintained this action against it, for if properly selected such a corporation was held in that case not to be liable for the negligence of its servants When acting in the performance of their prescribed duties. See, also, Benton v. Trustees of Boston City Hospital, 140 Mass. 13, 1 N. E. 836, 54 Am. Rep. 436. Among the reasons given for this exemption it has been said, that being a charitable institution rendering services to the public without pecuniary profit, if the property of the charity was depleted by the payment of damages its usefulness might be either impaired or wholly destroyed, the object of the founder or donors defeated, and charitable gifts discouraged; or that if an individual accepts the benefit of a public charity he thereby enters into a relation which exempts his benefactor from liability for the negligence of servants who are employed in its administration, provided due care has been used in their selection. McDonald v. Massachusetts General Hospital, ubi supra; Perry v. House of Refuge, 63 Md. 20, 52 Am. Rep. 495; Williamson v. Louisville Industrial School of Reform, 95 Ky. 251, 24 S. W. 1065, 23 L. R. A. 200, 44 Am. St. Rep. 243; Fire Insurance Patrol v. Boyd, 120 Pa. 624, 15 Atl. 553, 1 L. R. A. 417, 6 Am. St. Rep. 745; Powers v. Massachusetts Homeopathic Hospital, 109 Fed. 294, 303, 47 C. C. A. 122, 65 L. R. A. 372. But whatever grounds may have been stated in Support of these and other decisions which have held public charities exempt from actions caused by the negligence of attendants or servants, such an exemption may Well rest upon the application of the rule of law which makes the principal accountable for the acts of his servant or agent. Accordingly the true inquiry is whether this rule applies to the defendants. They are not shown to have selected incompetent servants, and are conceded not only to have been ignorant of the conditions which caused the alleged injury, but to have given to the plaintiff no instructions; nor can there be imputed to them knowledge in fact of any order given by their agents to him. By the case of Foreman v. Mayor of Canterbury, L. R. 6 Q. B. 214, following the decision in the leading case of Mersey Docks v. Gibbs, L. R. 1 H. L. 93, it was decided that there was no distinction as to liability for the negligence of servants whether they were employed by a corporation established for a public purpose, or by a priVate person or corporation. This doctrine Was approved and followed in the cases of Glavin V. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 675, and of Donaldson V. General Public Hospital, 30 N. B. 279, where a public charity was held liable in tort for damages suffered by patients from the negligence of Servants, though subsequently, by Pub. Laws R. I. 1880, p. 107, c. 802, such in

Stitutions in that State are now exempt from

this measure of liability. The plaintiff's argument in effect asks us to follow the last tWO cases, which have been decided since our former decision in McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529. But in this commonwealth the rule of liability enunciated by the principal case has not been so broadly applied, and neither cities nor towns in the performance of authorized municipal acts independently of certain exceptions defined by our decisions, nor public officers, although liable in damages for personal acts of negligence which cause injury to the persons or property of others when discharging the duties of their Office, are held liable for the misfeasance of their servants. Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289; Benton V. Trustees of Boston City Hospital, ubi supra; Rome V. Worcester, 188 Mass. 307, 74 N. E. 370; Dickinson V. Boston, 188 Mass. 595, 599, 75 N. E. 68, 1 L. R. A. (N. S.) 664, and cases cited; Moynihan v. Todd, 188 Mass. 301, 304, 305, 306, 74 N. E. 367, and cases cited; Haley v. Boston, 191 Mass. 291, 202, 77 N. E. 888. See, also, 2 Dill. Mun. Corp. (4th Ed.) $ 974. The reason for this rule is, that acting for the benefit of the public Solely in representing a public interest, whether by a municipality, or by a public officer, does not involve such a private pecuniary interest as lies at the foundation of the doctrine of respondeat Superior. While such officers may Well be held liable for their personal negligence it would be unreasonable and harsh to hold them responsible for the negligence of their servants or agents. There would seem to be in principle no sound distinction between a suit for negligence by which personal injuries have been received, directly instituted against the charity by the person injured, where its corporate form renderS Such procedure poSSible, or expedient, and the present case. The object of the charity is the same whether administered by trustees elected by a corpo

ration, or selected and appointed under a deed of gift, and even if the terms of the Settlement are not referred to in the exceptions, the trust is stated to be perpetual, and if so its provisions can be enforced in equity. Under either form of administration those who administer the trust act esSentially in a representative, and not in a private capacity, and such trustees are not Within the rule Which holds the master liable, because as we have said, in its application the Servant is acting, not Only under his orders, but for the benefit, and in the furtherance of the master's business. Farwell v. Boston & Worcester Railroad, 4 Metc. 49, 55, 38 Am. Dec. 339.

In no correct or just sense can it be safd that the defendants were conducting a business, or engaged in an enterprise from which they received, or could expect to derive any monetary advantage, or private emolument. They were serving without compensation in the Supervision of a home for indigent boys, which was established for the purpose of enabling them to become self-supporting and efficient members of society. Their duty to the plaintiff in the exercise of this function did not extend beyond the requirement of using reasonable care to select competent ServantS, and the demands of Substantial justice are met if as charitable trustees they are not charged with the negligence of those So employed. McDonald V. Massachusetts General Hospital, ubi supra.

We are not unmindful that the remedy which the plaintiff may have against a fellow servant for the negligence, if any, which caused the accident may be wholly theoretical, and of little pratical value, yet we deem it to be in accord, not only With our own decisions, but with the weight of authority to decide that the present action cannot be maintained, and that the ruling directing a verdict for the defendant was right. Feoffees of Heriots Hospital v. Ross, 12 ( & F. 507; Powers v. Massachusetts Homeopathic Hospital, ubi supra; Perry V. House of Refuge, ubi supra; Williamson v. Louisville Industrial School of Reform, ubi supra; Philadelphia Fire Patrol v. Boyd, ubi supra; Van Tassell V. Manhattan Eye & Ear Hospital (Sup.) 15 N. Y. Supp. 620, 621, and note; Joel v. Woman's Hospital (Sup.) 35 N. Y. Supp. 37; Downes v. Harper Hospital, 101 Mich. 555, 60 N. W. 42, 25 L. R. A. 602, 45 Am. St. Rep. 427; Pepke V. Grace Hospital, 130 Mich. 493, 90 N. W. 278; Hearns v. Waterbury Hospital, 66 Conn. 98, 33 Atl. 595, 31 L. R. A. 224; Eighmy v. Union Pacific Railroad Co., 93 Iowa, 538, 61 N. W. 1056, 27 L. R. A. 296; Union Pacific Railroad Co. v. Artist, 66 Fed. 365, 9 C. C. A. 14, 23 L. R. A. 581.

Exceptions overruled.

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1. MUNICIPAL CoRPORATIONS – SPECIAL AsSESSMENTS-REVIEW-CERTIORAHI-RETURNSUFFICIENCY. Where a petition for a writ of certiorari to review an assessment for a sewer constructed on the opposite side of the street from petitioner’s property, and draining such opposita side, alleges that petitioners were already provided with adequate sewer facilities by a sewer which they alone had paid for, an allegation in the return that the sewer, “as laid, is a benefit to the property owners equally upon both sides of the street,” is a mere conclusion, not controverting the specific averments of the petition. 2. SAME—ADMISSION BY IRETURN. Where the return to a Writ of certiorari to review an assessment for a sewer fails to controvert the specific allegations in the petition showing that the petitioners were already supplied with adequate sewer facilities paid for at their own expense, such allegations must be deemed admitted by the respondent. 3. SAME—ASSESSMENT ACCORDING TO BENEFIT – SEWERS — FRONT-FOOT RULE – PROPERTY ALREADY DRAINED. Under Laws 1897, p. 993, c. 738, as amended by Laws 1898, p. 29, c. 15, and Laws 1901, p. 1054, c. 384, § 11, subd. 2, providing for the assessment of the expense of local improvements “upon the lands benefited by the local improvements in proportion to such benefit,” property on one side of a street, and which is already adequately drained by a sewer constructed at the expense of the owners thereof, is not subject to an equal assessment per front foot with undrained property on the other side of the street for a sewer there being constructed.

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WILLARD BARTLETT, J. The relators sued out a Writ of certiorari to review a final determination of the board Of aSSeSSOrS Of the city of Utica in laying an assessment upon their lands for the construction of a SeWer in South Hamilton Street in that city. The property of the relators is on the west side of the street, and is already drained by a 12-inch Sewer constructed many years ago under a resolution of the common council adopted in 1871. The assessment for that sewer was imposed Solely upon premises On the west side of South Hamilton street, inaSmuch as the Sewer Conferred no benefit upon the property on the east side, which was considerably lower and could not drain into it. The new sewer, to which the present proceeding relates. is of the same dimensions as the old one, but is laid under the easterly

part of the street so as most conveniently to drain the lands on the east. Notwithstanding the contention of the relators that they were already provided with adequate drainage facilities by reason of the existence of the old Sewer, the board of assessors assessed the property owners on the west side of the street at the same rate per foot as those On the east side; and in this proceeding the action of the board is challenged as illegal, in that it disregards the mandate of the statute that the board of aSSeSSOrS Shall assess the expense of such sewer construction “upon the lands benefited by the local improvement in proportion to such benefit.” Laws 1897, p. 993, c. 738, as amended by Laws 1898, p. 29, c. 15, and Laws 1901, p. 1054, c. 384, § 11, Subd. 2. It is alleged in the petition, and is not denied, that the entire cost of the first sewer was assessed upon and paid by the relators and their grantors, the Owners of the lands on the westerly side of South Hamilton Street; that Said Sewer ever Since its COnStruction has furnished and noW does furnish adequate drainage to the lands and houses Of the relators; that no other or additional Sewers have since been needed Or are now needed by them for the drainage of their lands; and that their property prior to the Construction of the new sewer already had sufficient drainage by the pre-existing Sewer On their OWn Side of the Street. In the return there is a general allegation that the new sewer “as laid is a benefit to the property owners equally upon both sides of the Street”; but this statement, which is merely the Statement of a conclusion, in no wise controverts the specific averments of the petition to which reference has been made. We therefore have a case for the application of the presumption that, when the return to a Writ Of Certiorari is Silent as to material allegations of facts contained in the petition, the presumption is that the Officers making the return intended to admit these allegations. People ex rel. Village of Brockport v. Sutphin, 166 N. Y. 163, 59 N. E. 770. It must, therefore, be deemed admitted by the respondents that the first sewer at the time When the Second sewer was constructed furnished adequate drainage to the property of the relators and that they did not need any additional sewer facilities for the drainage of their premises. If such are the facts, it is difficult to perceive any justification for the act of the board of assessors in fixing the assessment at the same rate per front foot upon the property on both sides of South Hamilton street. Of course, it does not follow merely because an assessment is made at a uniform rate according to frontage that the assessors had violated any rule of law to the prejudice of the property owners. An assessment on that principle for the construction of a sewer may often, in fact, correctly represent the

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