(146 N.E.) PALLOTTA'S CASE. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 30, 1925.) Insurance 435-Digger and loader of sand held not within policy covering truck business, including "drivers, chauffeurs, and riggers." Workmen's compensation and employer's liability policy, covering employer under heading "General Trucking," including "drivers, chauffeurs, * stablemen, garagemen, and riggers," held not to cover services of one employed as digger and loader of sand. workmen's compensation and employer's liability policy, which policy covered him under the heading: "General trucking for 'the city of Springfield, including drivers, chauffeurs, and their helpers, stablemen, garagemen, blacksmiths, repairmen,. and riggers * * (7219)." "Estimated total annual remuneration, $1,200." "Rate per $100 for remuneration, $3.00." The question for decision is: Does the policy cover the services of Pallotta in his employment as a digger and loader of sand? There is no natural connection between the business of trucking and the business of digging and removing sand from a sand pit, for sale, even though 'the profits of such Appeal from Superior Court, Suffolk Coun- combined businesses are greater than would ty; Morton, Judge. Proceeding under the Workmen's Compensation Act by one Theresa Pallotta, claimant, for death of her husband, Gaetano Pallotta, opposed by Jeremiah Sullivan, employer, and the Union Indemnity Company, insurer. Award of compensation by the Industrial Accident Board was affirmed, and the insurer appeals. Reversed, and decree. entered. J. E. Reagan, of Boston, for appellant. Henry A. Moran, of Springfield, for appellee. PIERCE, J. This is an appeal from a decree of the superior court in accordance with the decision of the board member, and on review, of the Industrial Accident Board, which awarded compensation to the widow of Gaetano Pallotta under the provisions of the Workmen's Compensation Act. G. L. c. 152. be attributed to the two businesses conduct- HURLEY v. NEW YORK, N. H. & H. R. CO. (Supreme Judicial Court of Massachusetts. Plymouth. Jan. 30, 1925.) 1. Carriers 316(1), 344-Burden was on plaintiff to show defendant's negligence and that decedent exercised due care. Where accident to passenger happened prior to enactment of St. 1914, c. 553, burden was on plaintiff to show his intestate was in exercise of due care, that her carelessness did not contribute to accident, and that defendant was negligent. 2. Carriers 346 (3)-Evidence held to show injury to plaintiff after reaching place of safety resulted from her lack of due care in attempting again to board car. Evidence held to show decedent, in alighting from train, reached place of safety without injury, and was hurt because she attempted to board car from place where no one in charge of train would suppose her to be, and at time when careful person would have reason to expect that it would start. 3. Appeal and error 1175(5)-Where it was error to submit case to jury, judgment will be entered for defendant. Pallotta was a laborer, at intervals employed by Jeremiah Sullivan to shovel sand, at a sand pit or bank owned or controlled by the wife of Sullivan. Before Mrs. Sullivan acquired her interest in the land, Sullivan was engaged in the general trucking business in the city of Springfield, with one truck. After the interest in the sand pit was acquired, he bought another truck. He delivered sand from this pit to Fred T. Ley, to one Stevens, and some to the city of Springfield, Pallotta, at the last hiring, was engaged by Sullivan, on a Saturday, to help him out for a few hours Sunday morning to deliver about four loads of sand to the Springfield city yard. Sunday morning, the day of the accident, Pallotta came to the yard where Sullivan was fixing the gasoline engine, got a pail of water for him, and then, to keep warm, with one Bianchi broke the sand away from the bank, getting it ready to load into an automatic conveyer Action of tort by John H. Hurley, adminfo the truck. After Pallotta and Bianchi istrator, against the New York, New Haven had worked about 15 minutes the bank fell & Hartford Railroad Company. Verdict for and buried Pallotta in the sand. plaintiff, and defendant excepts. Exceptions Sullivan was insured by a Massachusetts sustained. Judgment for defendant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Where it was error to submit case to jury, judgment under G. L. c. 231, § 122, will be entered for defendant. Exceptions from Superior Court, Plymouth County; A. R. Weed, Judge. Coughlan Bros., of Abington, for plaintiff. ant. She also testified that she saw no lights in the station and that she was sure they alighted on the station side of the train; but on the following day, after refreshing her recollection from notes, she testified that it was on the side away from the station. There was testimony that on the side opposite the station there was a shallow depression whose sides went down in a gradual slope and which at its deepest part was not WAIT, J. [1] The accident happened on July 13, 1913, before the enactment of St. 1914, c. 553, which by its terms is made applicable only in cases which arose after May 14, 1914. The burden was, therefore, upon the plaintiff to show that his intestate was in the exercise of due care, that no careless-over a foot below the top of the ties. ness on her part contributed to the accident, A brother testified that since 1893 their faand that the servants of the defendant were negligent. [2] The evidence showed that Miss Hurley was a passenger. That as the train neared the Scituate station she was riding in the third or fourth car from the engine; that a brakeman from the platform at the rear of the car called out Scituate, and as the train stopped she went to the platform at the forward end of the car, found the gate open on the side on which she descended, and jumped to the ground from a high step at a point where there was no station platform; that as she reached the ground she made no outcry ther had owned a house in Scituate where his sisters stayed for different lengths of time, and whither they usually drove or motored. They used the Scituate station if they went to the house by train. This is all the material evidence on the issues of negligence and of due care. The defendant excepted to the refusal of the judge to direct a verdict for the defendant and to his refusal to instruct the jury: "2. There is no evidence of the negligence of the defendant. "3. The plaintiff's intestate, Henrietta M. Hurley, was not herself in the exercise of due care." or exclamation but stood for two or three minutes, and then putting one foot upon the The defendant was entitled to have a verstep, was about to put up the other when dict directed in its favor. There was no evithe train started and she fell back in a heap dence to justify a finding that Miss Hurley on the ground; that then for the first time was injured when she first got off the train. she spoke of pain in her foot or ankle. The Even assuming that there was negligence in friend who accompanied her on the night of allowing the gate on the wrong side of the the accident and who gave the foregoing tes-platform to be open; in failing to warn Miss timony, on cross-examination testified as fol lows: Hurley not to get off, or to warn her of uneven footing on the side away from the sta "Q. Now, did you see Miss Hurley get off tion; or in failing to light the station platbefore you? A. Yes. "Q. Did you see her fall when she got off? A. No. "Q. That wasn't the time that she hurt her ankle? A. No. "Q. There was nothing which indicated to you that she had hurt her ankle when she alighted from the train? A. No. "Q. That was the first thing that indicated to you that Miss Hurley had been hurt in any way? A. Well, after falling off the train, she spoke of either her foot or ankle. I don't know which, and spoke of pain. "Q. That was after you tried to get on? A. That was after we tried to get on; yes. "Q. It was when she fell back, after getting on, that she gave that exclamation of pain? A. Yes. "Q. How long was that after you had gotten off? A. I should say about two or three minutes." form (none of which do we mean to characterize as negligent)-it is clear that her injury was not caused by any or all of these. She reached a place of safety on the ground away from the train and without injury. She was hurt because she attempted to get again upon the car from a place where no one in charge of the train had occasion to suppose her to be, and at the time when any careful person would have reason to expect that it would start. There was clearly a failure to use due care on her part; a failure which contributed to her injury. [3] The judge was wrong in submitting the case to the jury. The exceptions are sustained and pursuant to G. L. c. 231, § 122, judgment is to be entered for the defendant. So ordered. (146 N.E.) DULLEA v. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 28, 1925.) 1. Carriers 303 (6)-Mere fact that passenger was injured while alighting by violence of crowd attempting to board car does not impose liability. Mere fact that crowd was present, and was boisterous and violent in attempt to board car at place where plaintiff alighted, and that she was injured by their conduct, did not impose liability on carrier. 2. Carriers 303 (6)-Rule stated as to duty to guard alighting passengers from violence of crowd getting on car. Where there was no evidence that defendant, from information or former experience, should have foreseen that crowd of violent and boisterous people would attempt to board car, no duty was imposed on it to take proper precautions to guard alighting passengers from violence and injury. 3. Carriers 303 (6)-Knowledge that large crowd would be present imposed no liability to alighting passenger injured by its violence, unless on showing of previous misconduct of crowds. Knowledge by street railway that crowd would be present at certain time and place would not render it liable for injuries to alighting passenger when crowd attempted to board car, unless there was showing of previous violent misconduct by crowd in attempting to board car. Exceptions from Superior Court, Suffolk County; W. A. Burns, Judge. Action of tort by Mary Dullea against the Boston Elevated Railway Company for personal injuries resulting from alleged negligence of defendant in failing to provide proper guards to restrain crowd boarding car from which plaintiff alighted. Verdict for plaintiff, and defendant excepts. Exceptions sustained. place of the accident." At the conclusion of the plaintiff's evidence the defendant's motion for a directed verdict was denied. The jury found for the plaintiff. The evidence shows that the plaintiff was a passenger; that about 30 minutes after 10 o'clock on the evening of January 18, 1921, as she was attempting to alight near the corner of Huntington avenue and West Newton street (Mechanics' Building being located on the westerly side of Huntington avenue, opposite West Newton street), when the conductor opened the door "there was a big crowd, and they were rushing and swearing and trying to get on the car; # ** the crowd pushed in on her and she was crowded off the car" as she was standing in the vestibule. "One 'great, big,' man who was the first to get in the car, struck against her. It appeared that a "boxing match" was held on the night in question, at Mechanics' Building. It was attended by 4,000 or 5,000 people; that the main bout would have been continued probably until 11 o'clock, but it ended with a foul about 10:30; that as soon as the match was over the crowd went to the street; that a "noisy, boisterous and violent" crowd of about 600 were waiting for the car, "all pushing and shoving, their hands going, * ** fighting to get on the car"; that as the plaintiff was getting off the car, the crowd pushed her off. The division superintendent of the defendant testified that extra cars were supplied that night because of the boxing match at Mechanics' Hall; that he knew probably "three or four days beforehand that a box ing match was to take place at Mechanics' He did not recall that he "detailed any one Building" on the night of the accident. there that particular night"; that so far as he remembered "those things occur three or four times a week." [1, 2] The fact that a large number of people was present, that they were boisterous and violent in their attempt to board the C. D. Driscoll and R. S. Driscoll, both of car, and that the passenger was injured by Boston, for plaintiff. this conduct, did not impose liability upon C. W. Mulcahy, of Boston, for defendant. the defendant. Ritchie v. Boston Elevated CARROLL, J. The plaintiff in her declaration alleges in substance that she was a passenger on one of the defendant's cars, in the exercise of due care, and while leaving the car near the corner of West Newton street and Huntington avenue, Boston, she was pushed and injured by a crowd of people who were attempting to board the car; that the defendant was negligent in failing to protect the plaintiff from the wrongful acts of those attempting to board the car by "properly providing some one to restrain the crowd, said defendant having full knowledge that at the time of the alleged accident there was likely to be a crowd at the time and Railway, 238 Mass. 473, 131 N. E. 67, and cases cited; Sack v. Director General of Railroads, 245 Mass. 114, 139 N. E. 819; Rogerse v. Boston Elevated Railway, 246 Mass. 478,' 141 N. E. 285. In Kuhlen v. Boston & Northern Street Railway, 193 Mass. 341, 79 N. E. 815, 7 L. R. A. (N. S.) 729, 118 Am. St. Rep. 516; Morse v. Newton Street Railway, 213 Mass. 595, 100 N. E. 1007. In Franz v. Holyoke Street Railway, 239 Mass. 565, 132 N. E. 270, the carrier was held liable for the passenger's injury because it should reasonably have anticipated that a crowd would be present and likely to act in a manner dangerous to the other passengers. But the record in the case at bar fails to disclose any For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes evidence that the defendant, or its servants or agents, from information or former experience, ought to have foreseen that on this night, at this time, a crowd of violent and boisterous people would attempt to board the car, and that having been informed, or having reason to expect this occurrence, the duty was imposed on the defendant to take proper precautions to guard the plaintiff and other passengers from violence and injury. Jackson v. Boston Elevated Railway, 217 Mass. 515, 105 N. E. 379, 51 L. R. A. (N. S.) 1152; Gascievicz v. Boston Elevated Railway, 222 Mass. 266, 110 N. E. 269. [3] The fact that the division superintendent of the defendant, when asked if he had detailed any additional men at this place on the night in question, replied that he did not recall, and in answer to the next question, "You did not see the crowd at all?" answered, "So far as I remember now, of course those things occur three or four times a week; I am usually there once or twice a week"-does not imply that the defendant knew or reasonably ought to have anticipated that a violent throng of men such as the plaintiff described would be present. Even if it were known that a crowd would be present at the time in question the defendant would not be liable because of this, as there was nothing to show any previous misconduct such as the plaintiff relied on to establish the defendant's negligence. The motion for a directed verdict should have been granted. Exceptions sustained. HART PACKING CO. v. GUILD. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 30, 1925.) 1. Landlord and tenant 169 (5)—Evidence of prior leaks in pipes held inadmissible. relating to effect of turning on or off self-closing faucet and to increasing pressure in city mains, in absence of evidence that leaky pipe was attributable to one or both causes, was inadmissible. Exceptions from Superior Court, Suffolk County; G. Sanderson, Judge. Action of tort by the Hart Packing Company against Courtenay Guild, doing business as Curtis Guild & Co., to recover for injuries to property caused by water coming from defendant's premises on goods of plaintiff, who occupied premises underneath. Verdict for plaintiff, and defendant excepts. Exceptions sustained. J. T. Pugh, of Boston, for plaintiff. The PIERCE, J. This is an action of tort to recover damages for injuries to certain personal property of the plaintiff, on September 30, 1922, in consequence of water coming from the premises of the defendant. plaintiff and defendant were tenants of a The plaintiff occupied common landlord. under a lease the entire half of the second floor at No. 144 High street, Boston, with the exception of a small room on the side. Under a similar lease, the defendant occupied on September 30, 1922, and had occupied since February, 1913, the whole of the third floor of the building numbered 142 to 146 High street, Boston. At the trial before a jury evidence was introduced that water, on September 30, 1922, dripped "pretty fast" from a matched board ceiling over an area five feet square and a quantity of cardboard boxes, saturated the stock, and damaged it. There was evidence that above the ceiling where the leakage occurred on the premises of the defendant, there was a toilet room, in which "there was a washbasin, a flush closet and a urinal." There was evidence that there was a main supply pipe for water which came into the room and went "right up through the build In action for damages to goods from water from upper floor, evidence of prior leaks of water pipe, not sufficiently connected with leak complained of, was inadmissible; questioning," and that from this pipe there were whether prior leaks were sufficiently connected being for trial judge, and not for jury. 2. Trial 138-Trial judge must decide question of fact necessary to determine admissibility of offered evidence. It is province of trial judge to decide all questions of fact necessary to determine admissibility of offered evidence, and such preliminary questions should not be submitted to jury, unless determination of preliminary facts is within exception to general rule. 3. Landlord and tenant 169 (5)-Evidence as to effect of turning on or off self-closing faucet and increase of pressure held inadmissible, in absence of evidence that leak was attributable thereto. In action for damages to goods from water leaking from upper floor of building, evidence branches "one to the urinal, one to the flush closet, and one to the washbasin"; that at the back of the urinal there was a marble slab parallel with the wall of the building; that "after some difficulty" a plumber located the leak behind the marble slab, "it couldn't be seen from the front," and there "found a small slit, just a small crack in the pipe, the urinal supply pipe, which was a lead pipe, probably five-eighths of an inch in diameter." There was no positive evidence of the age of the urinal supply pipe, nor of its being the original pipe. There were two bends in this pipe near the place of the slit, one in each side of the urinal, one going up and one running down to the washbasin. The faucet in the pipe had a self-closing spring; this snaps (146 N.E.) the water off much faster than a "compres- 1 sion cock," which turns by hand, if one lets go of it quick; such a faucet has been long in common use. When the faucet is turned off sharply, the pipe resists "in the weakest part of the pipes in the building," in this case "where the slit came." There was no evidence when the plumbing was installed in the building. There was evidence that a "good heavy lead pipe is good for 25 or 30 years" and "ought to go its full limit"; that at the time of the leak in the High street district there was a water gauge pressure of 85 pounds, and that this pressure was greater by 5 or 6 pounds than it had been, at a time not stated. There was no evidence of the ability of the pipe to sustain the water pressure of 85 pounds or to the effect that it was not sufficiently heavy to do so safely or that a pressure reducing valve was required, nor positive evidence that there was not any reducing tank there in use. The plumber cut out the place where the slit or crack had occurred, pulled the pipe together and soldered it, making a joint. On the undertaking of the plaintiff to prove "leaks in the same pipe from which this leak came," subject to the exception of the defendant, the judge allowed the plaintiff to introduce evidence that water leaked through to the ceiling at the same place at a time in the summer of 1921, and again at a time in the summer of 1922, and again at another less definite time. There was no evidence as to the cause of any one of the three leaks that occurred before September, 1922. [1, 2] On the evidence reported, the motion to strike out all the evidence relating to prior leaks should have been granted; and the question, whether the prior leaks were "sufficiently connected" with the leak of September 30, 1922, should have been determined by the judge and not submitted as a question of fact to the jury. It is the province of the judge who presides at a jury trial to decide all questions of fact which may be necessary to determine the question of the admissibility of offered evidence, and such preliminary question of fact should not be submitted to the jury, unless the determination of the preliminary fact falls within certain established exceptions to the general rule, of which the case at bar is not one. Gorton v. Hadsell, 9 Cush. 508; Commonwealth v. Reagan, 175 Mass. 335, 336, 56 N. E. 577, 78 Am. St. Rep. 496; Ames v. New York, New Haven & Hartford Railroad, 221 Mass. 304, 305, 108 N. E. 920. On all the evidence the motion for a directed verdict for the defendant should have been granted, and it is now ordered under G. L. c. 231, § 122. Exceptions sustained. NORCROSS v. HASKELL. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 30, 1925.) 1. Appeal and error 107-Appeal from order entering judgment on auditor's finding properly brings case for review. Where defendant under superior court rule 30 moved for judgment on auditor's finding, appeal from order granting judgment thereon properly brings case to Supreme Judicial Court for review. 2. Jury 25 (6)-Disposition of motion to be allowed to file late claim for jury trial rests in discretion. After return of auditor's finding and entry of judgment thereon, on defendant's motion, disposition of plaintiff's motion to be allowed to file late claim for jury trial rests within ju dicial discretion. 3. Reference 100(6)-Denial of hearing on auditor's report held erroneous. As motion for hearing on auditor's report was essential step in progress of case, judge was unauthorized to grant it without giving party against whom it was directed opportunity to be heard. 4. Reference 100 (6)-Party against whom judgment is rendered on auditor's finding may seasonably assert right to hearing at time motion for judgment is heard. Superior court rule 30 does not require that party against whom auditor has made findings must make alternative request for further hearing before court when motion for judgment has been filed; he being required only seasonably to assert his right to hearing, which right is seasonably asserted, if made when motion for judgment is heard. Appeal from Superior Court, Suffolk County; Wait, Judge. Action of contract by Eliza J. Norcross against Benjamin S. Haskell, executor in the commonwealth of Massachusetts under the will of Letitia M. Cross, late of New Hamp shire, to recover on a note of decedent made to plaintiff's order. Judgment entered for defendant on auditor's finding, and plaintiff appeals. Reversed. Curtin, Poole & Allen and Asa S. Allen, all of Boston, for appellant. [3] We think the evidence relating to the effect of turning on or off the self-closing | Tyler, all of Boston, for appellee. faucet and to the increase in pressure in city mains, in the absence of evidence, that the leak was attributable to one or both of these possible causes, was inadmissible. Stone & Jones, Eliot N. Jones, and A. B. RUGG, C. J. This action of contract was referred to an auditor. He filed a report in favor of the defendant. The defendant filed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |