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This was an action of tort to recover dam that L'Heureux was a person whose princiages for personal injuries received by plain-pal duty was that of superintendence (Maltiff while in defendant's employ. The case colm v. Fuller, 152 Mass. 160, 25 N. E. 83; was submitted to the jury upon the third Prendible v. Connecticut River Mfg. Co., 160 count of plaintiff's amended declaration, all Mass. 131, 35 N. E. 675; Knight v. Overman the other counts being waived by plaintiff. Wheel Co., 174 Mass. 455, 54 N. E. 890, and Plaintiff's amended declaration : "*

cases therein cited), and that he was negligent Count 3. And the plaintiff says that he, on in his duty to the plaintiff in permitting the the sixteenth day of January, 1904, was in carriage to be moved without taking some the employ of the defendant; that by rea steps to ascertain where the plaintiff was son of the negligence of some person in the and, if necessary, to give him notice in time service of the defendant, entrusted with and to save himself. Such findings are sufficient exercising superintendence, whose sole or to maintain the plaintiff's case. principal duty that of superintendence, the The plaintiff under the statute upon which plaintiff, while in said employ, and while in

the third count is based did not assume the the exercise of due care and diligence, was

risk of this carelessness of L'Heureux. "The injured, and suffered great pain of body and risk which the workman assumes by virtue anguish of mind, and paid out large sums of his contract of employment does not inof money for medicines and medical at- | clu

clude the risk arising from the negligent act tendance; that due notice of the time, place of a superintendent.” Murphy v. City Coal and cause of the injury, has been given to

Co., 172 Mass. 324, 327, 52 N. E. 503, and the defendant by the plaintiff.

cases cited. Answer: "Now comes the defendant in Exceptions overruled. the above entitled case and denies each and every material allegation in the plaintiff's writ and declaration contained."

(193 Mass. 116) Plaintiff's specifications:

LEVI v. WORCESTER CONSOL, ST. That

RY. CO. under the third count of his declaration, the name of the person in the service of the

(Supreme Judicial Court of Massachusetts.

Worcester. Oct. 17, 1906.) defendant, and intrusted with and exercising superintendence, and whose job or principal

1. INJUNCTION--OBJECTIONS TO RELIEF – IN

CONVENIENCE AND INJURY TO DEFENDANT. duty was that of superintendence, is one Injunction will not lie to require a railway L'Heureux, he is informed, who was the company to restore a way which it has excasecond hand of the same in which the plain

vated to its previous condition, where it will tiff was hurt; that he was negligent in au

subject the company to great inconvenience and

plaintiff has unreasonably delayed the enforcethorizing, permitting or directing the car ment of his rights. riage of the mule which the plaintiff was [Ed. Note.-For cases in point, see vol. 27, cleaning to be set in motion while the plain Cent. Dig. Injunction, $ 22.] tiff was engaged in the performance of his 2. SANE-ASSESSMENT OF DAMAGES-RETENduties in cleaning said mule, or in failing

TION OF BILL.

In such case the bill may be retained to to give the plaintiff notice or warning that

assess the damages, which plaintiff has suswork was to be done on said mule which tained. might involve the plaintiff in danger, and [Ed. Note.For cases in point, see vol. 27, permitting the plaintiff to continue to be en Cent. Dig. Injunction, § 415.] gaged in said cleaning without such warning

Report from Superior Court, Worcester and of the danger incident thereto.

County; Frederick Lawton, Judge. The jury assessed the damages at $300.

Bill by Sarah Levi against the Worcester T. D. O'Brien, for plaintiff. Brooks & Consolidated Street Railway Company for Hamilton, for defendant.

an injunction requiring defendant to fill an

excavation and restore a certain way to the HAMMOND, J. While the evidence was condition in which it was before its operaconflicting and would have warranted a find

tions were begun. Case reported. Decree to ing for the defendant on several matters es

stand on conditions. sential to the maintenance of the plaintiff's case, still we cannot say as matter of law

Sheehan & Cutting, for plaintiff. Chas. C. that it did not warrant findings that the

Milton, Chandler Bullock, and F. H. Dewey,

for defendant. plaintiff, being at the time of the accident in his sixteenth year, believed that the mule was stopped for the purpose of being cleaned, HAMMOND, J. "It is not every case of a and was justified in that belief; that it was permanent obstruction in the use of an easethe plaintiff's duty then to clean it, and that in ment that entitles the aggrieved party to a the performance of that duty he proceeded to

restoration of the former situation. Each clean it; that he did not know and had no case depends on its own circumstances. It is reason to think that repairs were to be made for the court in the exercise of a sound discreupon the mule while he was cleaning it; tion to determine in each case whether a manand that while thus at work he exercised datory injunction shall issue. It will not be isdue care according to the lights he had. sued when it appears that it will operate ineq

The evidence further warranted findings uitably or oppressively, nor when it appears

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that there has been unreasonable delay by the against the Gardner, Westminster & Fitchparty seeking it in the enforcement of his burg Street Railway Company. A verdict rights, nor when the injury complained of is was directed in favor of defendant, and not serious or substantial and may be read- plaintiffs bring exceptions. Overruled. ily compensated in damages, while to restore

Joseph P. Carney and John T. McGrath, things as they were before the acts complain

for plaintiffs. James A. Stiles and Walter ed of would subject the other party to great

R. Dame, for defendant. inconvenience and loss." Morton, J., in Starkis v. Richmond, 155 Mass. 188, 195, 196,

HAMMOND, J. These two actions brought 29 N. E. 770, citing 2 Story, Eq. Jur. 959a ;

to recover for damages by reason of injuries Kerr on Injunctions (1st Am. Ed.) 231; Roy

received by the plaintiff in the first action al Bank of Liverpool v. Grand Junction Rail

were tried together. We shall speak only road, 125 Mass. 490; Lewis v. Chapman, 3

of the first because the second stands or Beav. 133; Gookin v. Balls, 13 Ch. D. 324;

falls with it. Aynsley y, Glover, L. R. 18 Eq. 544.

The defendant's track ran by the side of No discussion is required to show that up

the road; and between the track and the on the facts found by the master this case is

sidewalk there was a gutter in the form of & one which calls for the application of this

ditch 1 foot wide and 1 foot deep, the nearprinciple. It is manifest that to restore

est line of the ditch being 212 feet from the things to the former situation would subject

nearest rail of the track. The car stopped the defendants to great inconvenience and

for passengers to alight. It was about 8 loss and is inequitable, and that the decree

o'clock in the evening of the 16th day of ordered by the trial court sufficiently pro

August. As to the circumstances the plainvides for the wants of the plaintiff as to the tiff testified that when the car stopped she right of way. She should however have rec

stood up to get off on the "usual side," "the ompense for the damages in the past, and

left hand side"; that "there were people the bill may be retained to assess such

standing between her and the left hand side damages. Jackson v. Stevenson, 156 Mass. (which was the street side); that she was 496, 31 N. E. 691, 32 Am. St. Rep. 476. standing facing the front of the car with her thus amended the order for the decree is to right hand toward the sidewalk; that she saw stand, unless the plaintiff within 30 days the conductor go around to the sidewalk side from the filing of the rescript in this case of the car; that he passed right by them shall file a rejection of the new right of way [herself and a little girl who was with her) proposed as a substitute, and shall ask full and did not offer to help her off ; that she damages for the permanent loss of the right heard one bell rung, and

[the] lit. of way without such substitution, in which tle girl with her hopped off, and then another case the bill may be retained to assess such bell rung, and she stepped onto the running damages or may be dismissed without preju board and then stepped off (on the sidewalk dice to her right to an action at law for dam side) from the car, as she thought the car ages, as she may elect.

was going to start up'; that she stepped off So ordered.

with her left foot and stepped right into the

ditch; that the bell did not ring but once, (193 Mass. 133)

and that after the little girl stepped off it THOMPSON V. GARDNER, W. & F. ST.

rang again; that when she got onto the runRY. CO. (two cases).

ning board she stood facing the sidewalk and (Supreme Judicial Court of Massachusetts.

looked out toward the sidewalk and saw what Worcester. Oct. 17, 1906.)

she thought was level ground; that there 1. CARRIERS-STREET RAILROADS-PLACE TO ALIGHT-STREETS–SAFETY.

were no lights there;

* that when A public street in a town is not to be re she stepped into the ditch she was hurt.” garded as a passenger station for the safety The car did not start until after she had of which a street railway company is responsible, when used by passengers as a place to

alighted. The place where the car stopped alight.

was a part of the highway over which the [Ed. Note.-For cases in point, see yol. 9,

defendant had no control. The case is thus Cent. Dig. Carriers, 88 1224, 1230, 1231.)

distinguishable from cases like Joslyn v. 2. SAME-WARNING.

Milford, Holliston & Framingham Street Plaintiff, a passenger on a street car, alight- Railway, 184 Mass. 65, 67 N. E. 866. “The ed at night from the "sidewalk side" of a car

street is in no sense a passenger station for and was injured by stepping into a gutter between the car track and the sidewalk, which

the safety of which a street railway company gutter was similar to those ordinarily maintain is responsible.” Barker, J., in Creamer v. ed in streets in country towns. Heid, that the

West End Street Railway, 156 Mass. 320, 321, conductor of the car was entitled to assume that plaintiff was familiar with the existence of

31 N. E. 391, 14 L. R. A. 490, 32 Am. St. Rep. the gutter, and was therefore not guilty of 456. The plaintiff however contends that it negligence in failing to warn her of its exist was the duty of the conductor to caution her ence.

against stepping into the gutter, and that Exceptions from Superior Court, Worcester his failure to do so was negligence. But this County; Charles A. De Courcy, Judge.

contention is untenable. Gutters like the one Actions by Margaret and Walter Thompson 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.

(193 Mass. 147)

FARRIGAN v. PEVEAR et al. (Supreme Judicial Court of Massachusetts.

Worcester, Oct. 24, 1906.) CHARITIES - LIABILITY OF TRUSTEES - INJUBIES TO SERVANT.

The trustees of a home for indigent boys, maintained under a perpetual trust, the advantages of the institution being conferred without compensation and the trustees serving without compensation, having exercised ordinary care in selecting competent agents and servants, are not liable for injuries to a servant arising from the negligence of another servant or agent.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Charities, 8 103.]

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

Action by James H. Farrigan against Henry A. Pevear and others. Judgment in favor of defendants, and plaintiff brings exceptions. Exceptions overruled.

Geo. S. Taft and Geo. R. Stobbs, for plaintifl. Parker & Milton and Geo. A. Gaskill, for defendants.

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 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 is 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 Foremad V. Mayor of Canterbury, L. R. 6 Q. B. 214, following the decision in the leading case of Mersey

BRALEY, J. The Stetson Home, of which the defendants are trustees, was founded and is maintained under a trust created by gift for the sole purpose of affording an education and maintenance for destitute boys, and whatever advantages the institution of. fers are conferred without compensation. These distinctive

distinctive features are ample to bring the home, even if unincorporated, within that class of benevolent institutions, whose 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. Corgregational 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

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,

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 neg. ligence of servants, though subsequently, by Pub. Laws R. I. 1880, p. 107, c. 802, such institutions in that state are now exempt from this measure of liability. The plaintiff's arguiment 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, 292, 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 pri. vate pecuniary interest as lies at the foundation of the doctrine of respondeat superior. Wbile 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 negli. gence 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 leed 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 administra. tion 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 li. able, 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 said 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 y. 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 a a A. 14, 23 L. R. A. 581.

Exceptions overruled.

(186 N. Y. 232)

part of the street so as most conveniently to PEOPLE ex rel. KEIM et al. v. DESMOND

drain the lands on the east. Notwithstandet al.

ing the contention of the relators that they (Court of Appeals of New York. Oct. 16, 1906.)

were already provided with adequate drain

age facilities by reason of the existence of 1. MUNICIPAL CORPORATIONS - SPECIAL AsSESSMENTS-REVIEW-CERTIORARI-RETURN

the old sewer, the board of assessors assessed SUFFICIENCY.

the property owners on the west side of the Where a petition for a writ of certiorari street at the same rate per foot as those on to review an assessment for a sewer constructed the east side; and in this proceeding the on the opposite side of the street from petitioner's property, and draining such opposite side,

action of the board is challenged as illegal, alleges that petitioners were already provided in that it disregards the mandate of the statwith adequate sewer facilities by a sewer which ute that the board of assessors shall assess they alone had paid for, an allegation in the return that the sewer, "as laid, is a benefit to the

the expense of such sewer construction “upon property owners equally upon both sides of the the lands benefited by the local improvement street," is a mere conclusion, not controverting in proportion to such benefit." Laws 1897, the specific averments of the petition.

p. 993, c. 738, as amended by Laws 1898, p. 2. SAME-ADMISSION BY RETURN.

Where the return to a writ of certiorari to 29, c. 15, and Laws 1901, p. 1054, c. 384, § 11, review an assessment for a sewer fails to con subd. 2. trovert the specific allegations in the petition It is alleged in the petition, and is not showing that the petitioners were already sup

denied, that the entire cost of the first sewplied with adequate sewer facilities paid for at their own expense, such allegations must be er was assessed upon and paid by the reladeemed admitted by the respondent.

tors and their grantors, the owners of the 3. SAME-ASSESSMENT ACCORDING TO BENEFIT lands on the westerly side of South Hamilton - SEWERS - FRONT-Foot RULE — PROPERTY ALREADY DRAINED.

street; that said sewer ever since its conUnder Laws 1897, p. 993, c. 738, as amend struction has furnished and now does fured by Laws 1898, p. 29, c. 15, and Luws 1901, nish adequate drainage to the lands and p. 1054, c. 384, § 11, subd. 2, providing for the assessment of the expense of local improvements

houses of the relators; that no other or ad"upon the lands benefited by the local improve ditional sewers have since been needed or ments in proportion to such benefit,” property are now needed by them for the drainage of on one side of a street, and which is already their lands; and that their property prior adequately drained by a sewer constructed at the expense of the owners thereof, is not subject

to the construction of the new sewer already to an equal assessment per front foot with un had sufficient drainage by the pre-existing drained property on the other side of the street

sewer on their own side of the street. In for a sewer there being constructed.

the return there is a general allegation that Appeal from Supreme Court, Appellate Di. the new sewer "as laid is a benefit to the vision, Fourth Department.

property owners equally upon both sides of Certiorari by the people, on the relation the street"; but this statement, which is of Henry C. Keim and others, against John merely the statement of a conclusion, in no C. Desmond and others, composing the board wise controverts the specific averments of of assessors of the city of Utica, and an

the petition to which reference has been other. From an order of the Appellate Di made. We therefore have a case for the apvision (97 N. Y. Supp. 795) affirming the de plication of the presumption that, when the termination of the board and dismissing the

return to a writ of certiorari is silent as to writ, relators appeal. Reversed, and deter

material allegations of facts contained in mination of the board annulled.

the petition, the presumption is that the W. L. Goodier, for appellants. William officers making the return intended to admit Townsend, for respondents.

these allegations. People ex rel. Village of

Brockport v. Sutphin, 166 N. Y. 163, 59 N. E. WILLARD BARTLETT, J. The relators

770. It must, therefore, be deemed admitted sued out a writ of certiorari to review a final by the respondents that the first sewer at the determination of the board of assessors of time when the second sewer was constructed the city of Utica in laying an assessment furnished adequate drainage to the property upon their lands for the construction of a of the relators and that they did not need sewer in South Hamilton street in that city. The property of the relators is on the west age of their premises. side of the street, and is already drained by If such are the facts, it is difficult to pera 12-inch sewer constructed many years ago ceive any justification for the act of the under a resolution of the common council board of assessors in fixing the assessment adopted in 1871. The assessment for that at the same rate per front foot upon the sewer was imposed solely upon premises on property on both sides of South Hamilton the west side of South Hamilton street, in street. Of course, it does not follow merely asmuch as the sewer conferred no benefit up because an assessment is made at a uniform on the property on the east side, which was rate according to frontage that the assessors considerably lower and could not drain into had violated any rule of law to the prejudice it. The new sewer, to which the present pro of the property owners. An assessment on ceeding relates. is of the same dimensions that principle for the construction of a sewer as the old one, but is laid under the easterly may often, in fact, correctly represent the

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