which continuances are from term to term, a N. E. 805. Whatever may be said about defendant may waive the formal entries of con- the probation, the conviction and sentence tinuance, and consent that the case may re- | stood unaffected. main in court without such entries until asked | plaintiff in error to be brought before the

It was lawful for the for by either party."

court for execution of that sentence purThe abolition of stated terms of court (St. no differently in these circumstances with

suant to that conviction. The case stands 1897, c. 490 [G. L. c. 213, 8 4]; St. 1897, C. 431 [G. L. c. 218, § 38]) does not affect the respect to execution of sentence than a compertinency to the case at bar of the gen- appropriate time it may be brought forward

plaint or indictment placed on ile. At any eral principle here declared.

for execution of sentence. Commonwealth [2] The establishment of the probation

V. Dowdican's Bail, 115 Mass. 133, 136; system and the limitations upon its exercise are set forth in the statutes.

King v. Commonwealth, 246 Mass. 57, 140

The bounds imposed by the statute must be ob

N. E. 253; Marks v. Wentworth, 199 Mass.

44, 85 N. E. 81. served when the machinery provided by the

No error of law of which the plaintiff in probation system is invoked. It is provided by G. L. C. 279, § 1, that after suspension error can complain is disclosed on this rec

ord. of sentence a district court may order that

Judgment affirmed. the person convicted "be placed on probation for such time and on such terms and con. ditions as it shall fix." These words are in substance the same as those empowering the superior court to place upon probation a person convicted before it. G. L. C. 276, 8 SULLIVAN v. BOSTON ELEVATED RY. CO. 87. These words import definiteness and

(Supreme Judicial Court of Massachusetts. specification as to the time of the probation

Suffolk. Jan. 10, 1925.) ary period. There is reason for such definiteness and specification when a person has 1. Street railroads om 100(1)-Minor pedesbeen convicted and sentenced. The general

trian held negligent. safety of society may require more stringent Pedestrian 12 years of age held, under evisupervision of such a person than of one dence, not to have exercised care for his own merely charged with crime but not even con- safety as against perils of street car, which

was in plain view at time he ran from sidewalk victed. These words are different from the

to catch another car. words of said section 87 authorizing the pro. bation before conviction of those charged with 2. Street railroads Omal 17(7)- Evidence held crime. This difference of phraseology can

not to warrant submission of negligence in not be regarded as immaterial or wanting in

striking minor pedestrian, attempting to

board car. signification. [3] Failure to conform to the statute with

Evidence held not to warrant submission of respect to stating the period of probation defendant's negligence for failure of motorman does not affect the substantial rights of the to observe situation and peril of minor pedesplaintiff in error in his present plight. He trian, who ran from sidewalk to catch a car and

was struck by car on another track. is not entitled to be discharged from custody. It does not affect the validity of his sentence Report from Superior Court, Suffolk Counor his commitment in execution thereof. His ty; J. F. Brown, Judge. original sentence was valid. If he was dis

Action of tort by Francis Sullivan, p. p. a., satisfied with it, he had opportunity for ap- against the Boston Elevated Railway Compeal before the suspension of his sentence. After accepting the advantage extended to pany, to recover for personal injuries from

collision with defendant's car. After jury's him by the law solely for his benefit, he finding for plaintiff, verdict was directed for could no longer ask for revision of it or defendant, and case reported. Judgment for complain of its terms. Mariano v. Judge' of

defendant. District Court, 243 Mass. 90, 137 N. E. 369. The plaintiff in error has never served his S. C. Brackett, of Boston, for plaintiff. sentence. It was suspended indefinitely. H. F. Hathaway, of Boston, for defendant. There was no infraction of the statute in such extension. Gabis, Petitioner, 240 Mass. PIERCE, J. This is an action of tort for 465, 134 N. E. 267. He accepted without | personal injuries received by a minor pedesobjection the benefit thus afforded. He trian, 12 years of age, by reason of a coltook advantage of the probation. Simply lision with a car of the defendant while the because there was an informality with re- plaintiff was crossing Bowdoin street in the spect to an incidental aspect of the proba- Dorchester section of Boston. At the contion following that suspension, the convict clusion of all the evidence the plaintiff is not enabled to escape punishment. Com- waived the second and third counts of the monwealth v. McGovern, 183 Mass. 238, 66 declaration, and the defendant moved that

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

(146 N.E.) the court direct a verdict for the defend-, sidewalk, over to the white post and the car ant. The judge refused to grant the motion had come up and he saw that he could not and submitted the case to the jury, reserving make it and then he stopped still and the leave to direct a verdict for the defendant. car, the front part of the car, vestibule of the The jury found for the plaintiff. The judge car, was just coming opposite him and he directed a verdict for the defendant and relooked into the vestibule and he saw that the port the case to this court, in the follow- motorman was not looking at him at all, he ing terms:

was fixing something; he saw that he could "If the order directing a verdict for the de- not make the car, he could not get the mofendant was right, judgment is to be entered for torman's attention, and he looked around, the defendant on the verdict. If that order was turned right around to go to the back and he wrong, then judgment is to be entered for the took two or three steps and then he was hit plaintiff in the sum of eight hundred dollars."

by the soutbound] car." More specifically Bowdoin street runs practically northeast the plaintiff testified that "he walked until and southwest, and is 40 feet wide excluding he got to the edge of the sidewalk and then sidewalks. In the middle of this street were he started to trot in order to get his car, bedouble tracks of the defendant's railway, the cause he did not dare to trust himself to outbound track being nearer the northerly walk any longer for he was afraid to lose his side of the street, where the plaintiff's home car, so he started to run and he ran from the was located at No. 176. Bowdoin street is edge of the sidewalk out onto the street to nearly straight for a distance of 1,000 or catch that car; he did not see the outbound 1,200 feet, with a grade of 3 feet in the 100 car then when he started to run across the as it passes the plaintiff's house, the out. street, he had his attention on the other bound car going down hill and the in. car; he had his attention on getting the car bound car traveling up grade. The house inbound; he did not look for the outbound where the plaintiff lived is 250 feet east of car then and he did not see that outbound Geneva avenue and 275 feet west of Topliţe car until it struck him and he did not know street, which enters Bowdoin street on the that that outbound car was on the street south, but does not cross it. Shepard street until he was struck.” He further testified is adjacent to 176 Bowdoin street and en- that "he ran across the outbound track and ters but does not cross that street. Oppo- all the time he was running toward the white site Shepard street on the southerly side of post, his attention was on the inbound car; Bowdoin street is an old-fashioned house. the reason he did not see the outbound car To the east, on the southerly side of the was because his attention was directed to the street, is a garage and near the sidewalk in inbound car.” He further testified that he front of the garage is a white post, which is "did not hear anything in the way of any the first stop for an east-bound car after alarm, gong or anything of that kind; he leaving Geneva avenue. Opposite the white was listening." post, at Dever street, is another white post

No ce was offered by the plaintiff restop on the northerly side of Bowdoin street garding the speed of the outbound car before and 60 feet east of a point in the sidewalk it reached the place of the collision; while directly in front of 176 Bowdoin street. The the evidence of witnesses for the defendant, white post near the garage, the dwelling if believed, warranted a finding that the house opposite Shepard street, and a point in outbound car stopped at the white post at the sidewalk opposite the entrance to 176 Dever street, and after starting had traveled Bowdoin street, with lines connecting them, no more than 35 feet from a state of rest form an equilateral triangle with sides 80 when the front of the car came in contact

with the plaintiff's body, where it stopped The plaintiff came out of his house, desir- within 2 feet. ing to take the inbound car at the white [1, 2] Upon the foregoing evidence it is plain post near the garage, where it should stop. the plaintiff exercised no care for his safety The car was then at Geneva avenue; "he whatsoever as against the perils of the outlooked around and waved to his mother; the coming car. It is obvious the outcoming car car had already started going then; when was in plain view from the time the plainhe looked around again to see the car, he tiff ran from the sidewalk until he attemptsaw that it had started up and seemed to go ed to turn back and away from the path of faster, and then when he went to go across the inbound car, and in doing so crossed up the street the car had started and put on a on the track of the outbound car. Stevens little more speed, was up to about 110 feet v. Boston Elevated Railway, 250 Mass. of him when he started across the street, 145 N. E. 430; Fitzpatrick v. Boston Elevatand when he got a little way from the side-ed Railway, 249 Mass. 140, 144 N. E. 75. It walk the car was right near him, the car is equally obvious that there is no evidence was then at the three-family house right to warrant a finding that there was negliacross from him in a diagonal course from gence in the operation of the colliding car or his house, and then he looked and then the in the failure of the motorman of that car car had come up; he went to go over to the to observe the situation of the plaintiff and

feet in length.

his peril. It follows in accordance with the fusal to grant the motion, and upon excep: terms of the report that judgment is to be tions taken to the admission of certain evi. entered for the defendant on the verdict; dence hereinafter referred to. and it is

On the motion there was evidence that the So ordered.

alleged offense occurred in St. Lawrence's Square, in Lawrence, at a point opposite the end of Brook Street; that Lawrence's Square

is about one hundred ten feet wide and one COMMONWEALTH v. LEONE.

hundred twenty-five feet long; that at the (Supreme Judicial Court of Massachusetts. east side of the square Brook Street starts Essex. Jan. 10, 1925.)

running easterly ; that at the southerly

side Newbury Street starts running in 1. Municipal corporations Ow707—Evidence of a southerly direction, and East Haverhill

operating automobile so as to endanger pub- Street in a southwesterly direction; that lic held for jury.

Avon Street starts at the westerly side of In prosecution under G L. c. 90, $ 24, for the square and Berkeley Street on the operating motor vehicle so as to endanger the public, evidence held to warrant denial of di- northerly side; that the square is open, it rected verdict and to support conviction.

has no crosswalks, and there are no other

streets or means of entrance to it except 2. Municipal corporations Ow707—Evidence of those above mentioned; and that Brook

position and speed of automobile and car Street stops whether it enters the square. passed by it held relevant.

There was evidence that a woman, at 5 In prosecution under G. L. c. 90, $ 24, for p. m. on October 27, 1919, entered the square operating motor vehicle so as to endanger the from Brook Street and traveled westerly in public, evidence as to speed of automobile and electric car passed by it several hundred feet the square to a point about twenty-five feet from scene of accident, and as to their relative west of the curbstone at the end of Brook positions, was relevant on speed of automobile Street; that at this time two automobiles, and on question whether rate thereof was pro- one driven by the defendant and the other by hibited.

some person unknown, approached the square

coming from opposite directions; that the 3. Municipal corporations Om707_Square held a “way" within statute as to operation of

woman, after reaching the point above demotor vehicles.

scribed, stopped and subsequently moved

backward between twelve and fifteen feet; Open square 110 by 125 feet without crosswalks, but with five streets leading from it in that as she moved backward she looked at different directions, held a "way" within G. L. the automobile approaching her in a southc. 90, § 1, as to operating motor vehicles so as erly direction, but did not look at the auto endanger public.

tomobile of the defendant approaching her [Ed. Note.–For other definitions, see Words in a northerly direction; that the automoand Phrases, First and Second Series, Way ) bile coming from the north seemed to touch

the clothes of the woman, and the rear Exceptions from Superior Court, Essex mud guard of the defendant's automobile County; George H. W. Hayes, Judge. struck her, whirled her around and knock

ed her down. Antonio Leone was convicted under G. L,

There was no evidence of the speed of the c. 90, $ 24, for operating a motor vehicle so that lives and safety of public were endanger. car approaching from the north at the time ed, and he excepts. Exceptions overruled.

of the injury. There was evidence that the

car of the defendant was traveling “very W. G. Clark, Dist. Atty., of Gloucester, fast" at the moment of the contact, but and F. E. Raymond, Asst. Dist. Atty., of Ips- nothing to show its speed in miles per hour wich, for the Commonwealth.

immediately before the accident. There was W. C. & E. J. Ford, of Lawrence, for de evidence, admitted subject to the exception fendant.

of the defendant, that his automobile ap

proached the square from the south on NewPIERCE, J. This is an indictment underbury Street; that it ran at the rate of G. L. c. 90, $ 24, for operating, at a time from fifteen to twenty miles an hour as it and place specified, a motor vehicle so that passed on the left of an electric car, travel. the lives or safety of the public might be ing in the same direction at the rate of eight endangered. At the close of the evidence to nine miles an hour; and that it passed the defendant duly moved that the court in front of the electric car to the right of order the jury to return a verdict for the the street, when four to five hundred feet defendant on the indictment. The presiding from the place of the accident. On the part judge refused to grant the motion and the of the defendant there was evidence that the defendant duly excepted. The jury returned rate of speed of his automobile was from a verdict of guilty. The case is before this four to eight miles an hour as it approachcourt on the defendant's exception to the re ed the place of the accident; that the au

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

evidence of the witness as to the position CARROLL, J. An automobile owned by

(146 N.E.) tomobile was slowed down, the brakes were Action of tort by S. Annette Dennison applied, and the horn blown.

against Albert Swerdlove to recover for per[1,2] On the foregoing facts we cannot sonal injury and damage to automobile from say that the jury were not warranted in collision between plaintiff's automobile and finding that the rate of speed of the automo automobile owned by defendant and driven bile when it entered the square was such as by another. Verdict was directed for de. to endanger the lives and safety of the pub- fendant, and plaintiff excepts. Exceptions lic who might be in or come into the square sustained. when the automobile entered. Commonwealth ~ Best, 180 Mass. 493, 497, 62 N. E.

R. J. Lane, of Boston, for plaintiff. 748; Commonwealth v. Vandenhecke, 248

Thomas D. Smith, of Boston, for defend

ant Mass. 403, 143 N. E. 337; Commonwealth v. Pentz, 247 Mass. 500, 143 N. E. 322. The of the defendant's automobile on the street the defendant, and driven by one Craft, colrelative to that of the electric car, and the lided with the plaintiff's automobile. There testimony regarding the speed of the car

was evidence that the plaintiff was exercising and of the automobile when distant four proper care and Craft was negligent. A verhundred to five hundred feet from the place dict was directed for the defendant on the of the accident, had a legitimate, relevant ground that there was no evidence that the bearing upon the speed of the automobile defendant "was responsible for the acts or when it entered the square, and upon the defaults of said Craft." question whether such rate of speed as the (1) The defendant testified that Craft askjury found the automobile was then being ed if he could take the automobile to go driven was within the inhibition of the home and leave his luggage, "he would drive statute.

the car back." Craft testified that he was [3] We find nothing in the suggestion of returning to the defendant's house when the the defendant that St. Lawrence's Square was collision happened. The plaintiff testified not a way within the meaning of G, L. C. that in the course of conversation with the 90, $ 1.

defendant at the place of the accident, shortExceptions overruled.

ly after the occurrence, he asked her "how it happened,” and she replied, “Your man was driving so fast that he couldn't stop the car." She also testified that the defendant

"did not in any way remonstrate that Mr. DENNISON V. SWERDLOVE.

Craft was not his man"; that the defendant

said to her, “You are all right, I will adjust (Supreme Judicial Court of Massachusetts. the 'damage to your car, but will probably Suffolk. Jan. 9, 1925.)

have to pay for mine;" that "he would like 1. Evidence C213(2), 217 Dofondant's to have me give me shim] a postdated check promise to adjust damage to plaintiff's au- for the amount to enable him to borrow the tomobile held not to be offer of compromise, money to pay the damages on his car so that but admission of fault.

he could get it to use it to show my good Where plaintiff stated to defendant at place faith, provided he adjusted the damages on of collision that defendant's man was driving my car," and "he advised me to have my re50 fast he could not stop, and defendant did pair man make my bill larger, to cover the not remonstrate that driver was not his man, defendant's promise to adjust damages to plain damages to both cars." tiff's car held not to be offer of compromise,

The defendant denied that he offered to but admission of fault, and justified inference settle the plaintiff's damage. He testified he that driver in fact acted as defendant's agent. said to her that he would not settle her dam2. Master and servant (m332(1)-Automobile ages, because he did not think that Craft driver's agency held for jury.

was at fault. In action for collision between automobile

The defendant's promise to adjust the damof plaintiff and defendant, evidence of conver- ages to the plaintiff's automobile was not an sation between plaintiff and defendant as

to offer of compromise but an admission that method of settlement of damages to both he was at fault, and if the jury believed he automobiles, and request that plaintiff's claim gave his promise, they could infer from this should cover entire damages to both, and de- that Craft was in fact acting as his agent fendant's silence and failure to dissent when when the collision took place. Ellis v. Pierce, driver was spoken of as his man, was sufficient 172 Mass. 220, 51 N. E. 974; Eldridge v. to require submission to jury of question whether driver acted as defendant's agent when Barton, 232 Mass. 183, 186, 122 N. E. 272; collision happened.

Mielke v. Dobrydnio, 244 Mass. 89, 92, 138

N. E. 561. Exceptions from Superior Court, Suffolk [2] The evidence of the conversation conCounty; Philip J. O'Connell, Judge.

cerning the method of settlement of the damFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ages to both automobiles, and the defend CARROLL, J. This action of tort to reant's request that the plaintiff's claim should cover damages for the conscious suffering cover the entire damages to both the plain and death of John Wiseman, who was run tiff's and the defendant's property, as well into by an automobile truck owned by the as the defendant's silence and his failure to defendant and operated by his son, Michael dissent when Craft was spoken of as “your Rome, comes to this court on a report, the man," was some evidence for the jury that sole question being, Was there "sufficient the driver of the machine was acting as his evidence of agency of Michael Rome to jusagent when the accident happened. See Fos- tify submission to the jury of this action”? ter v. Rockwell, 104 Mass. 167, 172; Metcalf The action was tried with another by the v. Williams, 144 Mass. 452, 454, 455, 11 N. E. same plaintiff, against Michael Rome, for 700; Hopwood v. Pokrass, 219 Mass. 263, damages growing out of the same accident. 106 N. E. 997. The case should have been

[1] There was evidence that the name submitted to the jury.

"Rome” was on the truck; that at some time Exceptions sustained.

after the collision the defendant was present at the place of the accident and said "he owned the truck, that he wanted to take Michael home," and "would make good anything he (Michael] had done"; that he

"would give a thousand dollars to be allowed WISEMAN v, ROME.

to take him home, and make everything all

right"; that Michael "was his boy," and had (Supreme Judicial Court of Massachusetts. a right to drive the car; and that he, the deWorcester. Jan. 9, 1925.)

fendant, would assume all responsibility.

There was evidence that Michael was asked 1. Evidence ww213(2)—Statement by defend. “where he was bound for,” and answered, ant that he would make damages good held "he was going on a job,” and testimony tendnot offer of compromise, but admission of fault.

ing to show that Michael was drunk and was

put under arrest. The statements of the Statement by defendant after automobile collision that he owned truck and would make father that he assumed responsibility, that good anything his driver had done, and that he would “make good” and pay money, may he would give $1,000 to make everything all have been made with reference to securing right, was not an offer of compromise, but in the boy's release. This, however, was a quesnature of an admission, and hence could be tion for the jury. They could have found considered by jury.

that the defendant assumed responsibility

for the injury to the plaintiff's intestate, and 2. Master and servant Cw332(1)-Son's agen- from this it could be inferred that Michael cy to drive automobile held for jury.

was his agent and engaged in his business at Admission of owner of truck, present at the time of the collision and that it resulted place of accident, that he would make good from his fault. anything his son, as driver, bad done, that mission of responsibility it could have been

From the defendant's adson had right to drive car, and that he assumed responsibility, was sufficient to justify found that he admitted his liability for the submission to jury of question of son's agen- agent's 'acts, and that the acts of the agent cy to drive truck.

were authorized. This evidence was not an

offer of compromise, it was in the nature of Report from Superior Court, Worcester an admission, and for this reason could be County; Webster Thayer, Judge.

considered by the jury. Ellis v. Pierce, 172 Action of tort by James R. Wiseman, ad. 232 Mass. 183, 186, 122 N. E. 272; Mielke v.

Mass. 220, 51 N. E. 974; Eldridge v. Barton, ministrator, against Henry Rome, for damages for death of John Wiseman, struck by Dobrydnio, 244 Mass. 89, 92, 138 N. E. 561;

Dennison v. Swerdlove (Mass.) 146 N. E. 27. defendant's automobile truck, operated by his son.

[2] As there was evidence sufficient to warSubmitted on report. Judgment for plaintiff.

rant the court in submitting the case to the

jury on the question of agency, according to F. P. McKeon, of Worcester, for plaintiff. the terms of the report judgment is to be

J. F. McGrath and J. J. MacCarthy, both entered for the plaintiff in the sum of $1,500. of Worcester, for defendant.

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

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