Sidebilder
PDF
ePub

which proximately contributed to the injury of appellant? This question in our judgment must be answered in the negative. If the evidence was such that reasonable men might differ on the question of appellee being guilty of any negligence which was the proximate cause of the injury to appellant, it was error for the court to direct a verdict.

[5] When the facts relating to proximate cause are undisputed, and are of such a character that only a single inference can be drawn therefrom by any fair and reasonable mind, the question is one of law for the court. Engle v. Director Gen., 78 Ind. App. 547, 133 N. E. 138. But, if more than one inference can reasonably be drawn from the evidence, the question is one of fact for the jury. For a discussion of the law relating to proximate cause, see Sarber v. City of Indianapolis, 72 Ind. App. 594, 126 N. E. 330; Engle v. Director Gen., supra. For a discussion of the duty of a railroad to watch for persons who may be attempting to cross its track, where the crossing has been blocked in violation of law, see Gesas v. Oregon, etc., R. Co., supra.

Section 2671, Burns' 1914, makes it a criminal offense, punishable by a fine, for the conductor or other person having charge of, or running a freight train over, any railroad, to suffer the same or any car or locomotive composing such train to remain standing across or in any public highway or street. And it has been held that a violation of this statute is negligence per se. We therefore assume that the court directed the jury to return a verdict for appellee because in its opinion appellant, as a matter of law, was guilty of negligence, which was the proximate cause of his injury, or that appellee, as a matter of law, was not guilty of any negli-ing (that is to say, if it has not obstructed it "If the train is lawfully obstructing the crossgence, which was a proximate cause of the for a greater length of time than that preinjury to appellant.

[3, 4] Under section 362, Burns' 1914, contributory negligence is a matter of defense. Appellant was neither required to allege nor to prove his freedom from negligence. We cannot agree with appellant in his contention that it is never proper for the court to instruct a jury to return a verdict, in cases of this character, in favor of a party having the burden of proving contributory negligence. The court may in exceptional cases be warranted in directing the jury to return a verdict in favor of the party having such burden. This, however, can be done only when the facts are undisputed and susceptible of but one reasonable inference. Lyons, Adm'r, v. City of New Albany, 54, Ind. App. 416, 423, 103 N. E. 20.

In Burger v. Missouri Pac. R. Co., supra, it was contended there was no causal connection between the act of obstructing the crossing and the injury. The court, in considering this contention, said:

"We do not understand that the maxim, 'causa proxima, non remota, spectatur,' applies in case both negligent acts, conducing to produce the injury, were committed by the person from whom redress is sought. The rule that the causal connection between the negligent act and the damage may be broken by the interposition of an independent responsible human agency cannot be applied to relieve one of liability for one negligent act by interposing another, also committed by himself. Besides we do not think the two negligent acts charged in this petition are independent of each other. They both unite in constituting one act of negligence the negligent management of the train -and both concur in producing the damage."

To the same effect see Pennsylvania R. Co. v. Kelly, 31 Pa. 377; Baltimore, etc., R. Co. v. Reaney, 42 Md. 117; Hayes v. Michigan Cent. R. Co., 111 U. S. 228, 4 S. Ct. 369, 28 L. Ed. 410.

Judge Thompson, in discussing the effect of permitting a train to block a public crossing, states the law as follows:

scribed by statute or ordinance, for an unreasonable length of time), then a pedestrian who attempts to continue his journey upon the highway, by climbing over or between the cars, does so at his own risk. The railway company for him, or to take special pains to provide is under no obligation to keep a special lookout for his safety; but his position is substantially that of a trespasser upon the property, and is not different, in law, from what it would be if the train were not obstructing a highway crossing. But, after the train has obstructed the crossing beyond the length of time prescribed by statute or ordinance, or beyond a reasonable time in the absence of statute or ordinance, then the railway company is guilty of an unlawful obstruction of the highway which is an indictable nuisance; the right of passage on the part of the public is restored; and, if pedestrians undertake to exercise that right by climbing over the obstructing train, the railroad company must see to it that it does not kill or injure them while so doing by an affirmative act of its own, namely, by starting forward its train without giving them any warning of its purpose so to do, or without looking out for their safety in any way." 2 Thompson, Neg. § 1674.

The rule, as stated by Judge Thompson, was approved in Central, etc., R. Co. v. Chambers, 183 Ala. 155, 62 So. 724, where the court, in considering the question of neglect on the part of a child, said:

[ocr errors]

*

And prima facie judgment and discretion is not presumed of a child under 14 years of age."

It has been said that a railroad company, by blocking a public crossing an unreasonable length of time, may be held to have invited a pedestrian to cross its tracks between the cars of a train, and be bound to exercise reasonable care to protect him in accomplishing his attempt. Sheridan v. Baltimore & O. R. Co., 101 Md. 50, 60 A. 280; Grant v. Baltimore & Pac. R. Co., supra; Gulf, etc., R. Co.

(147 N.E.)

v. Grisom, supra; Carmer v. Chicago, etc., Co., 95 Wis. 513, 70 N. W. 560; St. Louis, etc., R. Co. v. Jones, 78 Okl. 204, 190 P. 385, 16 A. L. R. 1048; Gesas v. Oregon, etc., R. Co., supra; Trent v. Norfolk, etc., R. Co., 167 Ky. 319, 180 S. W. 792; Hodges v. Erie R. Co., 257 F. 494, 168 C. C. A. 498.

[6] While it may be, as contended for by appellee, that section 5431, Burns' R. S. 1914, with reference to ringing the bell and sounding the whistle when a train is approaching a public crossing does not apply to a case like the present, it does not necessarily follow that reasonable care did not require appellee to have given some signal before starting the train. This is not a case where we, as a matter of law, can say the boy was a trespasser. The rule, as stated in Jordan v. Grand Rapids, etc., R. Co., 162 Ind. 464, 70 N. E. 524, 102 Am. St. Rep. 217, and in Udell v. Citizens' St. R. Co., 152 Ind. 507, 52 N. E. 799, 71 Am. St. Rep. 336, is not applicable to the facts in this case.

[7, 8] It will not do to treat the act of appellee in allowing the train to remain on the crossing in violation of the statute as a separate and distinct act, unconnected with the subsequent act of starting the train, and then say, as a matter of law, that such violation of the law was not a proximate cause of the accident. The stopping of the train and permitting it to stand on the crossing in violation of law should be considered along with the time it was allowed to stand on the crossing, and the extent of travel on the street at the crossing, in determining whether ordinary care required that appellee should have kept a lookout for pedestrians or have given any warning before moving the train. The question as to whether any negligent act of appellee was a proximate cause of the injury to appellant was, under the evidence, a question for the jury. The act of the court in directing a verdict was reversible error.

Judgment reversed, with directions for proceedings consistent with this opinion.

ROLLINS v. BAZIRGAN.

(Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1925.)

1. Master and servant 70 (2) Percentage of profits on "sale" recoverable, though seller accepted other property in payment.

Plaintiff effecting sale of rugs under agreement with owner for percentage of profits, held entitled to such percentage, though automobile in one case and piano in another case was taken in payment by owner; a barter being a "sale" within meaning of their contract.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Sale.]

2. Master and servant 70(2)-Percentage of profits recoverable, though sale not completed until after termination of employment.

One engaged to make sales of rugs for percentage of profits held entitled to share of profits on sale to customer produced by him, though sale was not actually completed until after termination of his employment.

Appeal from Municipal Court of Boston, Appellate Division; Michael J. Creed, Judge.

Action by Albert E. Rollins against Charles S. Bazirgan. From order of Appellate Division, dismissing report of municipal court after finding for plaintiff, defendant appeals. Order dismissing report affirmed.

G. J. Ganer, of Boston, for appellant.
A. C. Gould, of Boston, for appellee.

WAIT, J. The plaintiff sues for commissions on sales of rugs made by the defendant claimed to be due to him under an agreement that "the plaintiff should become associated with the defendant's business for the purpose of selling rugs to customers whom the plaintiff should find in any way he could by advertising or otherwise, and that on whatever rugs were sold through the plaintiff's efforts the plaintiff should receive one-half the profits above the cost of the rugs."

[1, 2] The law is plain that upon proof of the agreement, and of sales to customers found by the plaintiff and made through the plaintiff's efforts, the plaintiff is entitled to recover. There was no dispute except in regard to three transactions. In one the defendant instead of receiving money from the customer obtained an automobile. A barter is a sale within the meaning of the word in the contract. Osgood v. Tax Commissioner, 235 Mass. 88, 126 N. E. 371. In the second case the defendant accepted an order for a piano in payment, and the same rule of law applies. In the third case the sale was not completed before the parties terminated the relationship; and there was question whether the sale eventually made was to a customer found by the plaintiff and was made through his efforts. The questions of fact were to be decided by the judge who heard the witnesses. We cannot review his findings of fact and we see no error of law in holding that if, before the termination of the contract, the plaintiff secured the customer, he might be found to be the efficient cause of the sale although he had ceased to be in the employ of the defendant before all the negotiations culminating in the sale were completed. The substance of the finding is that before the contract terminated the plaintiff had performed all that he was required by his contract to do. It is immaterial that payment remained to be made when the par

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ties ceased to be bound longer by this agreement. Phillips v. Universal Upholstering Co., 248 Mass. 475, 143 N. E. 334.

* *

"In the absence of fraud practiced upon him, mere ignorance of the contents of an instrument which a party voluntarily exThis is not a case where the power to act aside if ultimately the paper is found to be ecutes is not sufficient ground for setting it for the defendant has ceased before perform-different from what he supposed it to be. Rice ance has become complete, as in Des Rivieres v. Sullivan, 247 Mass. 443, 142 N. E. 111, and Kimball v. Hayes, 199 Mass. 516, 85 N. E. 875, cited by the defendant.

The decision of the Appellate Division was right, and its order dismissing the report is

affirmed.

So ordered

FARRELL v. CHANDLER, GARDNER &
WILLIAMS, Inc.

CHANDLER, GARDNER & WILLIAMS, Inc.
v. FARRELL.

(Supreme Judicial Court of Massachusetts.

Essex. May 22, 1925.)

1. Contracts 93(2)—In absence of fraud,

Ignorance of contents of contract, voluntarily signed, not ground for setting it aside.

In absence of fraud practiced on him, mere ignorance of contents of instrument which party voluntarily signed is not ground for setting it aside if ultimately paper is found to be different from what he supposed it to be. 2. Contracts 99 (3)—Evidence held not to justify finding of fraud practiced on plaintiff in procuring her signature to contract. Evidence held not to justify finding of fraud practiced on plaintiff in procuring her signature to contract, no confidential relationship existing between her and other party thereto.

v. Dwight Manuf. Co., 2 Cush. 80; Leddy v. Barney, 139 Mass. 394; Freedley v. French, 154 Mass. 339, 342."

[2] Unless the evidence justifies the finding that fraud was practiced upon her, Mrs. Farrell is bound. The master's report shows that she "is a bright, intelligent person, can read English and has had 15 years of business experience"; that she "knew the agreement related to the terms of her employment"; that she "knew at the time she signed the agreement in question that it was covered by two full legal-sized sheets of paper of single spaced typewriting"; that she "saw every bit of one-half of the sheet on which she affixed her signature"; that she "saw the respondent write the words 'one hundred twenty' and the figures '30' in said agreement and saw the contents of the agreement [which included the words to which she now objects] below these words and figures"; that she "did not ask to read the said agreement that she signed"; and that she "was not dissuaded by any artifice by [Chandler, Gardner & Williams, Inc.,] its agents or servants from reading the agreement before she stated." The signed it except as statements of the report constituting the exception are that at the moment she was surprised at being sought as an employee and asked by Chandler if she would be satisfied with a remuneration of $30 per week, that Chandler then produced the two-page typewritten document in duplicate, filled in "one

Appeal from Superior Court, Essex Coun- hundred twenty" and "30," requested her to ty; McLaughlin, Judge.

Separate bills in equity by Anna R. Farrell against Chandler, Gardner & Williams, Inc., and by Chandler, Gardner & Williams, Inc., against Anna R. Farrell. Suits consolidated. Decree for said Farrell, and said Chandler, Gardner & Williams, Inc., appeal. Reversed,

bill of said Farrell dismissed, and decree entered for said Chandler, Gardner & Williams, Inc.

H. W. Ogden, of Boston, for Anna R. Far

rell.

E. W. Ogden, of Boston, and R. B. Heavens, of Plymouth, for Chandler, Gardner & Williams, Inc.

WAIT, J. [1] This court has held in Chandler, Gardner & Williams, Inc., v. Reynolds, 250 Mass. 309, 145 N. E. 476, that a contract in the terms of the paper signed by Mrs. Farrell is valid. The question for our determination is whether she is bound by her signature to the contract. The rule of law is well stated in Atlas Shoe Co. v. Bloom, 209 Mass. 563, 567, 95 N. E. 952, 953:

sign, stated that it was a mere matter of form (a statement on which she relied implicitly), folded over the document so that there was a half page visible for her signature (the half page on which was typed the words she now objects to) and handed her his fountain pen for the purpose; that the agreement had been prepared by Chandler; that he did not read it over to her, make any explanation of its terms, or suggest that she consult an attorney or seek any other advice before signing. The master found that “the conduct of Mr. Chandler in thus securing the signature of Mrs. Farrell was contrary to every dictate of equity and fair dealing."

We are unable to agree that fraud upon the part of Chandler is thus made out. Mrs. Farrell knew that he had acquired the business of her husband. She was familiar with the business. She knew that she had been suggested to Chandler as a desirable employee. She knew that others who had been connected with her husband's business when employed by the Chandler company had signed contracts of employment which included restriction on future independent business ac

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(147 N.E.)

tivity in competition with Chandler's company for considerable lengths of time. There was no confidential relationship existing between Chandler and herself.

Under such circumstances cases like Bliss v. New York, etc., Railroad Co., 160 Mass. 447, 36 N. E. 65, 39 Am. St. Rep. 504; Kean v. Hudson River Railroad Co., 210 Mass. 449, 97 N. E. 64; Barry v. Mutual Life Ins. Co., 211 Mass. 306, 97 N. E. 779; Connors v. Richards, 230 Mass. 436, 119 N. E. 831; and Halbert v. Brooks, 238 Mass. 471, 131 N. E. 68, do not apply.

She must be held to have known that these two-page typewritten contracts were not a mere form. There was no misrepresentation of the contents or the character of the instrument. McNamara v. Boston Elevated Railway, 197 Mass. 383, 83 N. E. 878. She affixed her signature. By that signature she is bound.

The decree must be reversed in both cases. In the suit of Mrs. Farrell, the bill must be dismissed. In that of the corporation, a decree must enter for the plaintiff with an injunction restraining action by Mrs. Farrell contrary to her agreement during the time and within the territory specified therein, with costs in both suits to the corporation.

So ordered.

HATCHMAN v. HATCHMAN. (Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1925.)

Divorce 106-Affidavits need not deal with every act of adultery alleged, nor disclose names of witnesses other than affiants.

Affidavits filed under rule 7 of Rules of Superior Court, for regulation of practice in divorce, G. L. c. 208, §§ 10, 11, St. 1922, c. 532, 86, which were sufficient to justify be

lief that corespondent has committed adultery as alleged, were not insufficient because they did not deal with every act of adultery alleged in libel, nor because they did not disclose names of witnesses other than affiants.

Exceptions from Superior Court, Suffolk County; W. P. Hal, Judge.

Libel for divorce by Henry F. Hatchman against Sarah A. Hatchman and John J. Kiely, co-respondent. On exceptions of libellee and co-respondent. Exceptions overruled. Dolan, Morson & Stebbins, of Boston, for libellant.

lee and co-respondent. The first request for ruling was given. The others were denied properly.

Rule 7 of the Rules of the Superior Court for the regulation of practice in divorce was complied with. If the affidavits filed under that rule (G. L. c. 208, §§ 10, 11; St. 1922, c. 532, § 6) are sufficient to justify a belief that the co-respondent has committed adultery as alleged, it is immaterial that they do not deal with every act of adultery alleged in the libel. They are not necessarily defec; tive if they do not disclose the names of the witnesses other than the affiant to the acts referred to in the affidavit. They are required, not as is here contended, in order to inform the parties of specifications of the charges and of the witnesses thereto, but in order to satisfy the court that no injustice is done by permitting the names to be inserted in the pleadings.

The motions to strike from the libel the allegations of acts committed on February 23, 1923, and to dismiss the libel were denied rightly.

Exceptions overruled.

MASSACHUSETTS

HOME MISSIONARY
SOCIETY et al. v. SIRIANNI et al.
(Supreme Judicial Court of Massachusetts.
Suffolk. May 22, 1925.)

1. Landlord and tenant -82-Defect in brick
wall, and failure to replace defective iron
fence, held not a matter of law to require
finding of waste defeating right to extension
of lease.

Slight defect in brick wall, and failure of tenant to replace iron fence removed apparentdinary wear and tear, held not, as matter of ly because of defective condition due to orlaw, waste defeating right to extension of

lease.

2. Landlord and tenant 160(2)-Lessor could not insist on covenant to put premises in repair, where tenant asserting right to extension.

Where lease contained right to extension which tenant seeks to assert, term of lease had not expired, and lessor could not insist on performance of covenant to put premises in like good order and repair as at date of lease.

Appeal from Superior Court, Suffolk County; O'Connell, Judge.

Bill in equity by the Massachusetts Home

B. J. Killion, F. S. Di Mento, and G. F. Missionary Society, a corporation, and anMitchell, all of Boston, for libellee.

other, against Domenica Sirianni and another to require defendants to extend lease and to restrain them from instituting proceedings to eject plaintiffs from premises pending suit. Decree for plaintiffs, and de

WAIT, J. It is too clear to require discussion that the evidence of the libellant and his witnesses, if believed, would justify a finding that adultery was committed by libel-fendants appeal. Affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

H. E. Perkins and G. A. McLaughlin, both ing that car was started in unusual and negliof Boston, for appellants. gent manner held warranted under evidence. R. S. Wilkins and J. V. Spalding, both of 3. Carriers 347(6) Whether street car Boston, for appellees. passenger exercised due care held under evidence for jury.

[blocks in formation]

at the end of the term in as good order and condition, reasonable use and wearing thereof * * * excepted, as the same now are, or may be put into.

*

There has been no waste. The failure to replace an iron fence removed apparently because of defective condition due to ordinary wear and tear, does not require as matter of law a finding that waste has been committed; nor does a slight defect in a brick wall. Delano v. Smith, 206 Mass. 365, 92 N. E. 500, 30 L. R. A. (N. S.) 474.

[2] The lease contained a right to an extension which the tenant seeks to assert. The term of the lease has not expired. Stone v. St. Louis Stamping Co., 155 Mass. 267, 29 N. E. 623. See De Friest v. Bradley, 192 Mass. 346, 351, 78 N. E. 467. The time has not yet come at which the lessor can insist upon performance of the covenant to put the premises in like good order and repair as at the date of the lease. Atkins v. Chilson, 9 Metc. 52, 63.

The breaches urged are too trivial to require action by a court of equity to defeat the claim of the plaintiff.

Decree affirmed.

CONVERY v. EASTERN MASSACHUSETTS
ST. RY. CO. (two cases).
(Supreme Judicial Court of Massachusetts.
Middlesex. May 21, 1925.)

1. Carriers 318(4)-Testimony of plaintiff that electric car started with a terrible jump held not to indicate operator's negligence.

Testimony of plaintiff that street car started with a terrible jump, and that she got a sensation that floor of car was going to be torn from under her, standing alone, held not to indicate negligence of operator.

2. Carriers 318(8)-Finding that street car was started in unusual and negligent manner held warranted under evidence.

In passenger's action for injuries alleged to have been caused by street car starting while she was walking down the aisle and throwing her against the rear dash board, find

In passenger's action for injuries alleged to have been caused by street car starting while she was walking down the aisle and throwing her against the rear dashboard, whether she was in exercise of due care held under evidence for jury.

4. Evidence 546- Finding that witness was competent to testify as to operation of street car with type of controller then used warranted.

Witness with nine years' experience as motorman on two-man cars and as operator of one-man car, and who had operated car on which passenger was injured from alleged negligent starting and other cars with similar controllers, could in trial court's discretion be found qualified to testify respecting operation of controller on car in question. 5. Evidence

514(4)-Testimony of expert as to proper manner of starting car equipped with particular controller and accelerating speed held competent.

car

Testimony of expert as to manner equipped with controller in use at time passenger was injured should be started and speed accelerated held competent on issue whether at time of injury car was started negligently. 6. Evidence 506-Question to expert as to whether street car could have been started with jump, if controller was properly oper. ated, held admissible.

Question to expert as to whether street car could have been started with jump as described by plaintiff, if controller had been working in manner which witness testified was proper, held admissible over objection that it called for answer involving opinion of disputed fact. 7. Evidence 547-Question to expert as to whether car equipped with proper controller would suddenly jump in starting held competent.

Question to expert as to whether street car equipped with controller in proper condition. of type like that on car on which passenger was injured when car started, would suddenly jump held competent.

Exceptions from Superior Court, Middlesex County; F. B. Greenhalge, Judge.

Separate actions of tort by Elizabeth and by Joseph F. Convery against the Eastern Massachusetts Street Railway Company, to recover in the first action for personal injuries while plaintiff was a passenger on defendant's street car, and in the second action to recover for consequential damages arising therefrom. Verdicts for plaintiffs, and defendant excepts. Exceptions overruled.

E. J. Tierney, of Lowell, for plaintiffs.
J. M. O'Donoghue, of Lowell, for defend-

ant.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« ForrigeFortsett »