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(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 re- looked into the vestibule and he saw that the ported the case to this court, in the follow-motorman was not looking at him at all, he ing terms:

"If the order directing a verdict for the defendant was right, judgment is to be entered for the defendant on the verdict. If that order was wrong, then judgment is to be entered for the plaintiff in the sum of eight hundred dollars." Bowdoin street runs practically northeast and southwest, and is 40 feet wide excluding sidewalks. In the middle of this street were double tracks of the defendant's railway, the outbound track being nearer the northerly side of the street, where the plaintiff's home was located at No. 176. Bowdoin street is nearly straight for a distance of 1,000 or 1,200 feet, with a grade of 3 feet in the 100 as it passes the plaintiff's house, the outbound car going down hill and the inbound car traveling up grade. The house where the plaintiff lived is 250 feet east of Geneva avenue and 275 feet west of Topliff | street, which enters Bowdoin street on the south, but does not cross it. Shepard street is adjacent to 176 Bowdoin street and enters but does not cross that street. Opposite Shepard street on the southerly side of Bowdoin street is an old-fashioned house. To the east, on the southerly side of the street, is a garage and near the sidewalk in front of the garage is a white post, which is the first stop for an east-bound car after leaving Geneva avenue. Opposite the white post, at Dever street, is another white post stop on the northerly side of Bowdoin street and 60 feet east of a point in the sidewalk directly in front of 176 Bowdoin street. The white post near the garage, the dwelling house opposite Shepard street, and a point in the sidewalk opposite the entrance to 176 Bowdoin street, with lines connecting them, form an equilateral triangle with sides 80 feet in length.

The plaintiff came out of his house, desiring to take the inbound car at the white post near the garage, where it should stop. The car was then at Geneva avenue; "he looked around and waved to his mother; the car had already started going then; when he looked around again to see the car, he saw that it had started up and seemed to go faster, and then when he went to go across the street the car had started and put on a little more speed, was up to about 110 feet of him when he started across the street, and when he got a little way from the sidewalk the car was right near him, the car was then at the three-family house right across from him in a diagonal course from his house, and then he looked and then the car had come up; he went to go over to the

was fixing something; he saw that he could not make the car, he could not get the motorman's attention, and he looked around, turned right around to go to the back and he took two or three steps and then he was hit by the [outbound] car." More specifically the plaintiff testified that "he walked until he got to the edge of the sidewalk and then he started to trot in order to get his car, because he did not dare to trust himself to walk any longer for he was afraid to lose his car, so he started to run and he ran from the edge of the sidewalk out onto the street to catch that car; he did not see the outbound car then when he started to run across the street, he had his attention on the other car; he had his attention on getting the car inbound; he did not look for the outbound car then and he did not see that outbound car until it struck him and he did not know that that outbound car was on the street until he was struck." He further testified that "he ran across the outbound track and all the time he was running toward the white post, his attention was on the inbound car; the reason he did not see the outbound car was because his attention was directed to the inbound car." He further testified that he "did not hear anything in the way of any alarm, gong or anything of that kind; he was listening."

No evidence was offered by the plaintiff regarding the speed of the outbound car before it reached the place of the collision; while the evidence of witnesses for the defendant, if believed, warranted a finding that the outbound car stopped at the white post at Dever street, and after starting had traveled no more than 35 feet from a state of rest when the front of the car came in contact with the plaintiff's body, where it stopped within 2 feet.

[1, 2] Upon the foregoing evidence it is plain the plaintiff exercised no care for his safety whatsoever as against the perils of the outcoming car. It is obvious the outcoming car was in plain view from the time the plaintiff ran from the sidewalk until he attempted to turn back and away from the path of the inbound car, and in doing so crossed upon the track of the outbound car. Stevens v. Boston Elevated Railway, 250 Mass. 145 N. E. 430; Fitzpatrick v. Boston Elevated Railway, 249 Mass. 140, 144 N. E. 75. It is equally obvious that there is no evidence to warrant a finding that there was negligence in the operation of the colliding car or in the failure of the motorman of that car to observe the situation of the plaintiff and

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

So ordered.

COMMONWEALTH v. LEONE. (Supreme Judicial Court of Massachusetts. Essex. Jan. 10, 1925.)

1. Municipal corporations 707-Evidence of operating automobile so as to endanger public held for jury.

In prosecution under G L. c. 90, § 24, for operating motor vehicle so as to endanger the public, evidence held to warrant denial of directed verdict and to support conviction.

2. Municipal corporations 707-Evidence of position and speed of automobile and car passed by it held relevant.

In prosecution under G. L. c. 90, § 24, for operating motor vehicle so as to endanger the public, evidence as to speed of automobile and electric car passed by it several hundred feet from scene of accident, and as to their relative positions, was relevant on speed of automobile and on question whether rate thereof was prohibited.

3. Municipal corporations 707-Square held a "way" within statute as to operation of motor vehicles.

Open square 110 by 125 feet without crosswalks, but with five streets leading from it in different directions, held a "way" within G. L. c. 90, § 1, as to operating motor vehicles so as to endanger public.

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

Exceptions from Superior Court, Essex County; George H. W. Hayes, Judge.

Antonio Leone was convicted under G. L. c. 90, § 24, for operating a motor vehicle so that lives and safety of public were endangered, and he excepts. Exceptions overruled.

W. G. Clark, Dist. Atty., of Gloucester, and F. E. Raymond, Asst. Dist. Atty., of Ipswich, for the Commonwealth.

On the motion there was evidence that the 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 hundred twenty-five feet long; that at the east side of the square Brook Street starts running easterly; that at the southerly side Newbury Street starts running in a southerly direction, and East Haverhill Street in a southwesterly direction; that Avon Street starts at the westerly side of the square and Berkeley Street on the northerly side; that the square is open, it has no crosswalks, and there are no other streets or means of entrance to it except those above mentioned; and that Brook Street stops whether it enters the square.

There was evidence that a woman, at 5 p. m. on October 27, 1919, entered the square from Brook Street and traveled westerly in the square to a point about twenty-five feet west of the curbstone at the end of Brook Street; that at this time two automobiles, one driven by the defendant and the other by some person unknown, approached the square coming from opposite directions; that the woman, after reaching the point above described, stopped and subsequently moved backward between twelve and fifteen feet; that as she moved backward she looked at the automobile approaching her in a southerly direction, but did not look at the automobile of the defendant approaching her in a northerly direction; that the automobile coming from the north seemed to touch the clothes of the woman, and the rear mud guard of the defendant's automobile struck her, whirled her around and knocked her down.

There was no evidence of the speed of the car approaching from the north at the time of the injury. There was evidence that the car of the defendant was traveling "very fast" at the moment of the contact, but nothing to show its speed in miles per hour immediately before the accident. There was

W. C. & E. J. Ford, of Lawrence, for de- evidence, admitted subject to the exception fendant.

PIERCE, J. This is an indictment under G. L. c. 90, § 24, for operating, at a time and place specified, a motor vehicle so that the lives or safety of the public might be endangered. At the close of the evidence the defendant duly moved that the court order the jury to return a verdict for the defendant on the indictment. The presiding judge refused to grant the motion and the defendant duly excepted. The jury returned a verdict of guilty. The case is before this court on the defendant's exception to the re

of the defendant, that his automobile approached the square from the south on Newbury Street; that it ran at the rate of from fifteen to twenty miles an hour as it passed on the left of an electric car, traveling in the same direction at the rate of eight to nine miles an hour; and that it passed in front of the electric car to the right of the street, when four to five hundred feet from the place of the accident. On the part of the defendant there was evidence that the rate of speed of his automobile was from four to eight miles an hour as it approached the place of the accident; that the au

(146 N.E.)

tomobile was slowed down, the brakes were applied, and the horn blown.

The

[1, 2] On the foregoing facts we cannot say that the jury were not warranted in finding that the rate of speed of the automobile when it entered the square was such as to endanger the lives and safety of the public who might be in or come into the square when the automobile entered. Commonwealth v Best, 180 Mass. 493, 497, 62 N. E. 748; Commonwealth v. Vandenhecke, 248 Mass. 403, 143 N. E. 337; Commonwealth v. Pentz, 247 Mass. 500, 143 N. E. 322. evidence of the witness as to the position of the defendant's automobile on the street relative to that of the electric car, and the testimony regarding the speed of the car and of the automobile when distant four hundred to five hundred feet from the place of the accident, had a legitimate, relevant bearing upon the speed of the automobile when it entered the square, and upon the question whether such rate of speed as the jury found the automobile was then being driven was within the inhibition of the statute.

[3] We find nothing in the suggestion of the defendant that St. Lawrence's Square was not a way within the meaning of G. L. c. 90, § 1.

Exceptions overruled.

DENNISON v. SWERDLOVE. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 9, 1925.)

1. Evidence 213(2), 217 Defendant's promise to adjust damage to plaintiff's automobile held not to be offer of compromise, but admission of fault.

Where plaintiff stated to defendant at place of collision that defendant's man was driving so fast he could not stop, and defendant did

Action of tort by S. Annette Dennison against Albert Swerdlove to recover for personal injury and damage to automobile from collision between plaintiff's automobile and automobile owned by defendant and driven by another. Verdict was directed for defendant, and plaintiff excepts. Exceptions sustained.

R. J. Lane, of Boston, for plaintiff.
Thomas D. Smith, of Boston, for defend-

ant.

CARROLL, J. An automobile owned by the defendant, and driven by one Craft, collided with the plaintiff's automobile. There was evidence that the plaintiff was exercising proper care and Craft was negligent. A verdict was directed for the defendant on the ground that there was no evidence that the defendant "was responsible for the acts or defaults of said Craft."

[1] The defendant testified that Craft asked if he could take the automobile to go home and leave his luggage, "he would drive the car back." Craft testified that he was returning to the defendant's house when the collision happened. The plaintiff testified that in the course of conversation with the defendant at the place of the accident, shortly 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. Craft was not his man"; that the defendant said to her, "You are all right, I will adjust the damage to your car, but will probably have to pay for mine;" that "he would like to have me give me [him] a postdated check for the amount to enable him to borrow the money to pay the damages on his car so that he could get it to use it-to show my good faith, provided he adjusted the damages on my car," and "he advised me to have my repair 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 dam

2. Master and servant 332(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 of plaintiff and defendant, evidence of conversation between plaintiff and defendant as to method of settlement of damages to both automobiles, and request that plaintiff's claim should cover entire damages to both, and defendant's silence and failure to dissent when driver was spoken of as his man, was sufficient to require submission to jury of question whether driver acted as defendant's agent when collision happened.

Exceptions from Superior Court, Suffolk County: Philip J. O'Connell, Judge.

The defendant's promise to adjust the damages to the plaintiff's automobile was not an offer of compromise but an admission that he was at fault, and if the jury believed he gave his promise, they could infer from this that Craft was in fact acting as his agent when the collision took place. Ellis v. Pierce, 172 Mass. 220, 51 N. E. 974; Eldridge v. Barton, 232 Mass. 183, 186, 122 N. E. 272; Mielke v. Dobrydnio, 244 Mass. 89, 92, 138 N. E. 561.

[2] The evidence of the conversation concerning the method of settlement of the dam

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

ages to both automobiles, and the defend-
ant's request that the plaintiff's claim should
cover the entire damages to both the plain-
tiff's and the defendant's property, as well
as the defendant's silence and his failure to
dissent when Craft was spoken of as "your
man," was some evidence for the jury that
the driver of the machine was acting as his
agent when the accident happened. See Fos-
ter v. Rockwell, 104 Mass. 167, 172; Metcalf
v. Williams, 144 Mass. 452, 454, 455, 11 N. E.
700; Hopwood v. Pokrass, 219 Mass. 263,
106 N. E. 997. The case should have been
submitted to the jury.
Exceptions sustained.

WISEMAN v. ROME.

CARROLL, J. This action of tort to recover damages for the conscious suffering and death of John Wiseman, who was run into by an automobile truck owned by the defendant and operated by his son, Michael Rome, comes to this court on a report, the sole question being, Was there "sufficient evidence of agency of Michael Rome to justify submission to the jury of this action"? The action was tried with another by the same plaintiff, against Michael Rome, for damages growing out of the same accident. [1] There was evidence that the name "Rome" was on the truck; that at some time 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 to take him home, and make everything all right"; that Michael "was his boy," and had a right to drive the car; and that he, the defendant, would assume all responsibility. There was evidence that Michael was asked "where he was bound for," and answered, "he was going on a job," and testimony tending to show that Michael was drunk and was put under arrest. The statements of the father that he assumed responsibility, that he would "make good" and pay money, may have been made with reference to securing the boy's release. This, however, was a question for the jury. They could have found that the defendant assumed responsibility for the injury to the plaintiff's intestate, and 2. Master and servant 332(I)-Son's agen- from this it could be inferred that Michael cy to drive automobile held for jury. Admission of owner of truck, present at place of accident, that he would make good anything his son, as driver, had done, that son had right to drive car, and that he assumed responsibility, was sufficient to justify submission to jury of question of son's agency to drive truck.

(Supreme Judicial Court of Massachusetts. Worcester. Jan. 9, 1925.)

1. Evidence 213(2)—Statement by defend ant that he would make damages good held not offer of compromise, but admission of fault.

Statement by defendant after automobile collision that he owned truck and would make good anything his driver had done, and that he would give $1,000 to make everything all right, was not an offer of compromise, but in nature of an admission, and hence could be considered by jury.

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Report from Superior Court, Worcester County; Webster Thayer, Judge.

Action of tort by James R. Wiseman, administrator, against Henry Rome, for damages for death of John Wiseman, struck by defendant's automobile truck, operated by his son. Submitted on report. Judgment for plaintiff.

F. P. McKeon, of Worcester, for plaintiff. J. F. McGrath and J. J. MacCarthy, both of Worcester, for defendant.

was his agent and engaged in his business at the time of the collision and that it resulted from his fault. From the defendant's admission of responsibility it could have been found that he admitted his liability for the agent's acts, and that the acts of the agent were authorized. This evidence was not an offer of compromise, it was in the nature of an admission, and for this reason could be considered by the jury. Ellis v. Pierce, 172 232 Mass. 183, 186, 122 N. E. 272; Mielke v. Mass. 220, 51 N. E. 974; Eldridge v. Barton, Dennison v. Swerdlove (Mass.) 146 N. E. 27. Dobrydnio, 244 Mass. 89, 92, 138 N. E. 561;

[2] As there was evidence sufficient to warrant the court in submitting the case to the jury on the question of agency, according to the terms of the report judgment is to be entered for the plaintiff in the sum of $1,500. So ordered.

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(Supreme Judicial Court of Massachusetts. Suffolk. Jan. 9, 1925.)

1. Assignments 24(1), 121-Right of action for warehouseman's failure properly to care for wool stored was assignable; assignee may sue in own name.

Right of action for warehouseman's failure to exercise agreed care of wool stored, and by reason of which it was damaged, was assignable, under G. L. c. 231, § 5, and assignee could maintain action in his own name, subject to defenses, had action been brought by assignor. 2. Assignments 24(1)-Claims and demands of assignors for warehouseman's negligence in storing wool passed to assignee.

In view of G. L. c. 105, § 47, giving assignee of nonnegotiable receipt right to require warehouseman to hold possession according to receipt, and section 3, giving party injured right to bring action in name of commonwealth on warehouseman's bond, under assignment of cause of action against warehouseman, assignee acquired all demands of assignors for breach of duty to store wool, and under section 5 could maintain action therefor.

3. Assignments 121-Act giving assignee right to sue in own name applies to all choses in action.

G. L. c. 231, § 5, giving assignee of nonnegotiable chose in action right to sue in own name, applies to all choses in action, and hence it was not essential to recovery by assignee of nonnegotiable warehouse receipts for warehouseman's negligence in storing wool that he should be owner when damage was done.

4. Assignments 3-Remedial act giving assignee of nonnegotiable chose in action right to sue in own name is to be fairly construed. G. L. c. 231, § 5, giving assignee of nonnegotiable chose in action right to sue in own name, is remedial, and is to be fairly construed. 5. Warehousemen 18-Not essential to suit by assignee of nonnegotiable receipt and causes of action for damages that obligee of warehouseman's bond should execute assign

ment.

Assignment of nonnegotiable warehouse receipts for wool and causes of action which assignor might have against warehouseman for breach of duty arising from storage thereof held sufficient to entitle assignee to prosecute action in name of commonwealth, under G. L. c. 231, § 5, for warehouseman's negligence; it not being essential that obligee of warehouseman's bond should execute assignment.

storage. Judgment for plaintiff, and defendant named excepts. Exceptions overruled.

A. Lincoln, Asst. Atty. Gen., for the Commonwealth.

J. J. McCarthy, of Boston, for defendant Market Warehouse Co.

CARROLL, J. The defendant Market Warehouse Company (hereinafter called the defendant), as a duly licensed public warehouseman, gave a bond, under G. L. c. 105, § 1, to the state treasurer for the faithful performance of its duties. The action is brought under section 3 of said chapter, which provides that whoever is injured by the failure of a licensed warehouseman to perform his duty, or by his violation of any provision of G. L. c. 105, may bring an action on the bond for his own benefit in the name of the commonwealth. The surety was defaulted.

The action was brought for the benefit of Jacob Karheim, hereinafter called the plaintiff. He was the agent in Boston of one Mautone and brother, who shipped 1200 bales of wool from Montevideo to Boston, to be sold in this market, consigning it and transferring title to the Guaranty Trust Company of New York, as security for advances. The National Shawmut Bank was the agent of the Guaranty Trust Company. Two hundred and twenty-seven bales of wool were deposited in the defendant's warehouse, in two deliveries; and two nonnegotiable receipts, one wool was received on storage for the Nafor each delivery, acknowledging that the tional Shawmut Bank, were given to the plaintiff, and by him to the bank. In May, 1921, the plaintiff purchased from the Guaranty Trust Company the entire Montevideo shipment, including the wool in the defendant's warehouse. It was found on June 8, 1921, that 74 bales of the wool in the defendant's possession were damaged because of the defendant's failure to exercise proper diligence in caring for the wool; that the wool was damaged before the plaintiff purchased it. In July, 1921, the Guaranty Trust Company assigned to the plaintiff the warehouse receipts, and in writing assigned "any and causes of action all claims, demands or which it might have against the defendant for violation of any obligation or duty arising from or relating to said bales of wool, the storage thereof, and any damage caused thereto by the said Market Warehouse Company." July 30 a similar instrument was

Exceptions from Superior Court, Suffolk executed by the National Shawmut Bank and County; McLaughlin, Judge.

Action of contract, under G. L. c. 105, § 3, by the Commonwealth of Massachusetts, for the benefit of Jacob A. Karheim, against the Market Warehouse Company and others, to recover for the named defendant's failure to exercise agreed care of wool deposited for

delivered to the plaintiff. Both instruments were executed and delivered before this action was brought.

[1, 2] The right of action because of the defendant's tort, in failing properly to care for the wool and by reason of which it was damaged, was assignable. By G. L. c. 231, §

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