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(146 N.E.) other respects when he did not know the pin, been installed, and that was at the end of had been removed but believed it was in the cylinder farthest from where appellee place. The third, in addition to the facts al- was standing. leged in the second, alleged that one of ap- There was also sufficient evidence to juspellant's servants who assisted appellee in tify the jury in finding that appellee did not doing the work was negligent in admitting know the iron pin was not in its place or a large amount of air in the air machine on had never been there; that under the circumwhich appellee was working. The fourth stances appellee was not required to inspect simply alleged negligence on the part of ap- that part of the machine and observe the pellee's assistant, the same as was alleged in absence of the pin; that he did not know or the third paragraph.

have any reason to believe that the pin was The evidence is sufficient to establish the out; and that the injury was caused by the following facts: Appellee was informed that negligence of the man turning too much air a certain machine operated by compressed in the cylinder. air, and used for bending iron, was leaking [1, 2] Appellant having rejected the Comair, and he was directed to repair this ma- pensation Act, contributory negligence and chine. The main part of this machine con- assumption of the ordinary risks of the work sisted of an iron cylinder about 16 inches in was not a defense in this case. The evidiameter and about 5 feet long in which dence was, to say the least, sufficient to susthere was a piston head with leathers at eachtain the verdict under the allegations of the end. Compressed air could be admitted 'at | third and fourth paragraphs of the comeach end of the cylinder so as to move the plaint. The verdict was therefore sustained piston either forward or backward. A pis- by the evidence, and was not contrary to ton rod extended through each end of the law. There was no error in refusing to incylinder and connected with a piston head struct the jury to return a verdict for apAt each end of the cylinder and resting on pellant. an iron table was an iron crosshead. A pis- Instructions Nos. 2, 3, and 6 of which comton rod connected each of these crossheads plaint is made related to contributory neg. to the piston head. The crossheads were ligence and assumption of risk on the part supposed to be fastened to the piston with of appellee and were correct in form and an iron pin about 34 of an inch in diameter properly given. No. 11 related to knowledge and about 6 inches long. The leather cups of the danger on the part of appellant, while were held in place by followup plates, and Nos. 15 and 16 related to the duty of apprevented the air from escaping and passing pellant to warn appellee of danger. We around the piston heads. Appellee was giv- have carefully examined these instructions. en to understand that these leathers were They were applicable to the evidence, and not properly working but were letting air were properly given. escape, and he was instructed to remedy this Judgment affirmed. defect. He took a helper with him, and after moving the piston head back and forth a few times with his hands he removed the head from one end of the cylinder, and was

PILLING V. HALL. trying to get the piston head out of the cylinder, when the leather stuck and held the (Supreme Judicial Court of Massachusetts.

Suffolk. Feb. 26, 1925.) piston head so tightly that it could not be removed. He then directed the man who Master and servant 219(1)-Risk of falling was helping him to let in the compressed into unguarded boiler pit held assumed. air slowly so as to push the piston toward Electrical contractor employed by building the end of the cylinder from which the head owner to do all electrical work in buildings had been removed. Appellee was working owned by latter held to have assumed risk of near the end of the cylinder when the pis- falling into open unguarded boiler pit which ton head was, by reason of the great force could have been discovered by reasonable inof the air admitted, violently forced out in spection, and employer owed bim no duty of

warning him. the direction of appellee, and struck and seriously injured him. The iron pin which

Report from Superior Court, Suffolk Counwas supposed to be in place and hold the

ty; Frederick Lawton, Judge. crosshead in place at the other end of the cylinder was out, and the force of the com

Action of tort by Alfred J. Pilling against pressed air was sufficiently powerful

Fred L. Hall to recover for personal injuries

to force and disconnect the crosshead from the sustained on defendant's premises at latter's piston rod and thus allowed the piston head invitation. Verdict was directed for defendto be forced out at the end of the cylinder ant, and case reported. Judgment for deand to strike and injure appellee. The air

fendant. cylinder was so constructed that a bending J. W. Lowrance and J. L. Hurley, both of machine could be attached to each end, al- Boston, for plaintiff. though but one bending machine had ever L. C. Doyle, of Boston, for defendant.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-44

CARROLL, J. Under an arrangement be- , livan v. New Bedford Gas & Edison Light tween the parties, the plaintiff, an electrical Co., 190 Mass. 288, 76 N. E. 1018; McCaffercontractor, performed all the electrical work ty v. Lewando's French Dyeing & Cleansing required by the defendant in the buildings Co., 194 Mass. 412, 80 N. E. 460, 120 Am. St. owned by him. When work of this kind was Rep. 562; Smith v. Lincoln, 198 Mass. 388, to be done, a call was sent to the plaintiff's 84 N. E. 498; Gainey v. Peabody, 213 Mass. place of business. September 19, 1921, a re- 229, 100 N. E. 336; Murray v. Nantasket quest to look after the electric call bells in Steamboat Co., supra. The facts appearing the defendant's apartment house was receiv- in Smith v. New England Cotton Yarn Co., ed, and the following afternoon, between 225 Mass. 287, 114 N. E. 353, make it inapthree and four o'clock, the plaintiff, in re- plicable to the case at bar. sponse to the call, entered the house through The plaintiff could have discovered all the the basement door and proceeded to find the conditions surrounding the place where he batteries. The janitor was not present, and was to do his work. He could have seen the the only light in the basement was that com- boiler pit by a proper inspection; it was not ing through the leaded panes of the outside hidden, nor in the nature of a trap. Withdoor. The plaintiff saw a door (marked "E" out considering the question of the plaintiff's on the plan) which he opened, and passing lack of care, he cannot recover. Judgment into the room known as the boiler room fell is to be entered on the verdict. into the unguarded boiler pit, three feet nine So ordered. inches in depth. He testified that as he went into the boiler room he had a flashlight and threw "the light in around the corner to

WELLINGTON V. DE CORDOVA. see where the shelf would be to hold the bat. teries”; that he took two or three steps and (Supreme Judicial Court of Massachusetts.

Suffolk, Feb. 27, 1925.) fell into the pit. On cross-examination he testified that after his accident the janitor Wills C 317–Refusal to frame issue for tripointed out the batteries to him and he had al by jury, designed to establish status of no difficulty in seeing them. The defendant, one claiming to be widow of deceased, held called by the plaintiff, testified that the bat not error. teries were on a “sort of a shell” on a shelf Though issue as to status of one claiming in the hallway, in a container about a foot to be widow of deceased is preliminary to or eighteen inches from the ceiling. A ver- question of probate of will, and may properly dict was returned for the defendant, by the be tried and decided first, refusal of probate direction of the trial judge, and the case re- signed to establish status of such person, is

court to frame issues for trial by jury, deported.

not error under G. L. c. 215, $ 16. In Murray v. Nantasket Beach Steamboat Co., 248 Mass. 587, 143 N. E. 623, the plain Appeal from Probate Court, Suffolk Countiff had been at work on a boat belonging to ty; J. R. McCoole, Judge. the defendant. On the day in question while

Proceedings by Arthur J. Wellington for gathering his tools, he approached a door of allowance of the will of Julian Dana De Corthe hose house and fell through a hatchway. dova, deceased, wherein Alice De Cordova It was held that he had every opportunity appeared, alleging she was widow of de to examine the premises and must be con- ceased, and requested that issues be framed sidered to have assumed the risks of his em.

for trial by jury to determine her status. ployment, as they were apparent, or he could From decree dismissing motion and refusius have observed them, if he had exercised his to frame such issues, she appeals. Decree right to examine the premises before enter- affirmed. ing upon his employment. The case at bar

W..C. Rice, of Boston, for appellant. is governed by the Murray Case. The plain

W. R. Buckminster, of Boston, for appel. tiff came upon the defendant's premises as

lee. an independent contractor, and the defendant was not bound to warn him of dangers RUGG, C. J. A petition was duly presentwhich were obvious or could have been disced to the probate court for the allowance of covered by reasonable inspection. Pettingill the will of Julian Dana De Cordova, late of v. Porter, 219 Mass. 347, 107 N. E. 269. The Brookline. Alice De Cordova appeared in defendant's duty was no greater than that that proceeding, alleging that she was the which he owed his own employees; he was widow of the deceased. Her status was de not obliged to change the construction of his pied. She presented a petition that several premises. The plaintiff agreed to work on issues be framed for trial by jury, designed the premises as they existed at the time, and to establish whether she is the widow of he assumed all the risks incidental thereto the deceased. Her appeal from the refusal of which were obvious or could have been dis- the judge of probate to frame issues brings covered by a reasonable inspection. Murphy the case here. v. Greeley, 146 Mass. 196, 15 N. E. 651; Sul It is manifest that the question whether

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(146 N. E.) Alice De Cordova is the widow of the dece- 1 highway, he must show his own freedoin from dent is preliminary to the question whether negligence directly contributing to that damage. the instrument offered for probate should be allowed as his last will. Although the two

Report from Superior Court, Norfolk issues might be tried together, it was entire- County; Patrick M. Keating, Judge. ly proper that the status of Alice De Cordova

Action of tort by Austin G. Brown against be tried and decided first. Goff v. Britton, Frederick A. Alter for damages to automo182 Mass. 293, 65 N. E. 379; Pattee v. Stet- bile from collision at street intersection. On son, 170 Mass. 93, 48 N. E. 1022.

report from superior court. Judgment for No error of law is disclosed on this record. defendant. Instances may be found in the books where order has been made for the trial to a jury

John A. Canavan and Samuel P. Sears, of issues more or less similar to those here

both of Boston, for plaintiff. requested. See, for example, Phillips v.

Coughlan Bros., of Abington, for defend

ant.
Chase, 203 Mass. 556, 89 N. E. 1049, 30 L.
R. A. (N. S.) 159, 17 Ann. Cas. 544, where
questions as to undue influence and coercion

RUGG, C. J. This is an action of tort to in an adoption were framed. In Lufkin v.

recover damages sustained by the plaintiff Lufkin, 182 Mass. 476, 65 N. E. 840, a question through the collision at intersecting streets like that here prayed for was tried to a jury. of an automobile owned and driven by him These cases are rare exceptions and do not with another automobile owned and driven

The automobile of the indicate a policy. The general practice of the by the defendant. Supreme Judicial Court' prior to the enact- defendant was not registered and he had no ment of St. 1919, c. 247, 87, now G. L. c. 215, license as an operator. The jury were in$ 16, was to frame issues for trial to a jury structed that the defendant at the time of only in cases involving the probate of wills. the collision was an outlaw and trespasser That practice is discussed fully and set out at on the highway, and that his automobile was length in Fuller v. Sylvia, 240 Mass. 49, 133 a nuisance, and that they need not consider N. E. 384. It is not necessary to traverse that whether the plaintiff was guilty of gross negground again. What there was said is applic- ligence or of willful misconduct. In answer able to the case at bar. The action of the to a special question, the jury found that judge of probate was in conformity to the want of due care on the part of the plainprinciples there stated. It was in harmony tiff contributed directly to his damage. with numerous more recent decisions. Cook v. Thereupon a verdict was directed for the Mosher, 243 Mass. 149, 137 N. E. 299; Clark

defendant. The correctness of this ruling 1. McNeil, 246 Mass. 250, 140 N. E. 922; is reported for our determination. Burroughs v. White, 246 Mass. 258, 140 N. [1, 2] The automobile of the defendant E. 910; Connell v. Sokoll, 247 Mass. 203, 142 must be assumed to have been a nuisance on N: E. 55; Smith v. Brewster, 247 Mass. 395, | the highway, since it was not registered in 142 N. E. 56; Old Colony Trust Co. v. Pepper, conformity to our statutes. Dudley v. North248 Mass. 263, 142 N. E. 817; Old Colony ampton Street Railway, 202 Mass. 443, 89 N. Trust Co. v. Spaulding, 250 Mass. 145 E. 25, 23 L. R. A. (N. S.) 561; Dean v. BosN. E. 927; Wilbar v. Diamond, 249 Mass. ton Elevated Railway, 217 Mass. 495, 105 N. 568, 144 N. E. 462 ; Beale v. Davis, 250 Mass. E. 616; Gondek v. Cudahy Packing Co., 233 146 N. E. 354.

Mass. 105, 110, 123 N. E. 398; Washburn v. Decree dismissing motion affirmed.

Union Freight Railway, 247 Mass. 414. 142 N. E. 79. That fact has important effects upon the rights of the defendant to recover for injuries done him by others. The plaintiff

as a traveler on the highway cannot recover BROWN V. ALTER.

of the defendant for damage caused by a nu

isance maintained on the highway without (Supreme Judicial Court of Massachusetts.

showing that his own want of care did not Norfolk. Feb. 27, 1925.)

directly contribute to that damage. This is 1. Municipal corporations Em705(4)—Unregis- the rule of our own cases. The question was tered automobile nuisance on highway.

clearly decided in Smith v. Smith, 2 Pick. In action for damages from automobile col- 621, 13 Am. Dec. 464. It has been followed lision, automobile unregistered, as required by in Parker v. Adams, 12 Metc. 415, 46 Am. statute, must be assumed nuisance on highway. Dec. 691, and Sherman v. Fall River Iron 2. Municipal corporations 705(10) - Con. Works, 2 Allen, 524, 526, 79 Am. Dec. 799. tributory negligence of automobile driver pre. Doubtless it has been accepted without quescludes recovery, though other car was unregis. tion as a settled principle in the trial of

many causes. Practical experience has esBefore automobile driver can recover dam- tablished it as a custom regulating conduct. ages from collision with another car which, be- It seems to us to be supported by the great cause unregistered, constituted a nuisance on/ weight of authority. Parker v. Union Wool

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tered.

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en Co., 42 Conn. 399, 402; Baltimore v. Mar- and upon her application the court framed riott, 9 Md. 160, 176, 66 Am. Dec. 326; Ir- the following issues to be submitted to a win v. Sprigg, 6 Gill (Md.) 200, 205, 46 Am. jury: Dec. 667; Crommelin v. Coxe, 30 Ala. 318,

"Was the said Charles N. Shaw at the time 329, 68 Am. Dec. 120; Butterfield v. Forrest of the execution of said alleged will of sound er, 11 East, 60; Congreve v. Smith, 18 N. Y. mind?” 79; Clifford v. Dam, 81 N. Y. 52, 57.

"Was the execution of said alleged will proThere is much to be said in favor of this cured through the fraud or undue influence of rule as an abstract principle. The conges- Lillian H. Angell and Isaac Harold Angell and tion upon highways has become so great that Robert K. Goodwin or either of them?" the general public safety seems to demand that there be no relaxation of the requires 9, 16. A stenographer was appointed under

[1, 2] The petitioner appealed. G. L. c. 215, ment of due care on the part of all travelers. section 18, to take the evidence, but no witDoubtless in many and perhaps in most as

nesses were called. The contestant's counsel pects of the law of nuisance, the element of submitted an offer of proof with many specihis due care has no relevancy to the right of fications to which counsel for the petitioner a plaintiff to recover compensation for his injuries or to invoke the aid of equity for replied by an offer consisting largely of a abatement of the source of his harm. See general denial. The proposed issues according Boston Ferrule Co. v. Hills, 159 Mass. 149, fact on which the establishment of the will

ly presented a controversy over matters of 34 N. E. 85, 20 L. R. A. 814. The case at bar ultimately depended. Fuller v. Sylvia, 240 does not call for an exposition of these prin- Mass. 49, 133 x. E. 384. It appeared that ciples. There was no error in the decisive rulings made the alleged will December 29, 1923, and

the testator who was born February 1, 1861, or refusals to rule by the trial judge.

died March 5, 1924. While he had actively Judgment for defendant.

conducted a very successful and profitable business in company with one Page under the firm name of Page & Shaw as makers

and venders of candy, his health after the ANGELL et al. v. LIGHTHIPE.

assets and good will of the partnership had

been transferred to the corporation of Page in re SHAW'S ESTATE.

& Shaw, Inc., began to be considerably im(Supreme Judicial Court of Massachusetts. paired. In December, 1923, he was suffering Suffolk. Feb. 28, 1925.)

from an incurable organic disease which af.

fected his mind. He was subject to hallu. 1. Wills Cu316(2)-Issue of testamentary capacity properly allowed.

cinations, and believed that people intended In will contest, issue of testator's capacity to take his life. The death of his wife Deto make will held under facts properly allowed cember 25, 1923, also affected his mental conin framing issues.

dition, and he became greatly agitated upon

being informed that she had taken posses. 2. Wills awa316(3)Granting issue of undue sion of bonds and securities approximating influence held proper.

In will contest, granting issue of undue in two hundred thousand dollars in value, which fluence of principal legatees held under facts he considered his own property. It was unto have been properly allowed in framing issues. der these conditions that he went to a bos.

pital for mental treatment, and while there 3. Wills 159Undue influence must be op- executed his will. The first issue was properative at time will was executed.

erly allowed. Whitney V. Twombly, 136 Undue influence is a species of and par- Mass. 145, 146, 147; Smith v. Brewster, 247 takes of nature of fraud, and must be operative Mass. 395, 142 N. E. 56. We pass to the setat time will was executed.

ond issue. The testator in 1910 became Appeal from Probate Court, Suffolk Coun- friendly with Lillian H, Forsaith, who was ty; W. M. Prest, Judge.

an employee of the partnership, and by mar.

riage in October, 1921, became the wife of In the matter of the estate of Charles N. Isaac Harold Angell. It could be found on Shaw, deceased. Petition by I. Harold An- the offer of expected proof, that through her gell and others for probate of will, contested influence he purchased land and buildings by Effie P. Lighthipe. Issues were framed and had the title conveyed to her, and that for jury, and petitioners appeal. Affirmed.

while occasionally visiting his wife, he made S. Hoar, of Boston, for appellants.

his home with Miss Forsaith and her parH. R. Bailey, of Boston, for appellee. ents. This gift was followed by the purchase

and conveyance to her of other parcels of BRALEY, J. The will of Charles N. Shaw land. She also received a substantial amount having been offered for probate by the peti- of stock of Page & Shaw, Inc., and all of the tioner, the respondent a first cousin and his donations were in addition to her compensasole heir at law appeared as a contestant tion as an employee. In the summer of 1919

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

the T

(146 N.E.) and of 1920 she lived with him in the county continued in one form or another to the date at his hired house. Acting under her influ- of the will, had gained, and retained control ence the testator in 1920 also assisted in the over the testator's mind, by which he was information of the Keswick Candy Company in duced to make a will cutting off Mrs. Lightwhich the contestant's husband Charles F. hipe, and giving to herself and husband the Lighthipe, an attorney at law, apparently benefit of the bulk of his fortune, and in the a stockholder, served as director, and a re- accomplishment of this purpose, Mr. Angell tail candy store was started which was large- who is named as executor, and Mr. Goodwin ly managed by Miss Forsaith, and although cooperated. Emery v. Emery, 222 Mass. 439, Mrs. Shaw strongly objected to the relations 111 N. E. 287; Neill v. Brackett, 234 Mass. previously described, her objections were un- 367, 370, 126 N. E. 93; Raynes v. Sharp, availing. But in 1921 Miss Forsaith, now 238 Mass. 20, 130 N. E. 199; Neill v. BracMrs. Angell, and Mr. Lighthipe disagreed kett, 241 Mass. 534, 135 N. E. 690. It canconcerning the management of the Keswick. not be said that there was any error of law Candy Company, and the testator who pre- in granting the second issue. old Colony viously had been very friendly with Mr. and Trust Co. v. Spaulding (Mass.) 145 N. E. 927. Mrs. Lighthipe became hostile, and influenc- Order affirmed. ed by Mr. and Mrs. Angell terminated Lighthipe's employment as his counsel, and re. tained Robert E. Goodwin, Esq., who had been employed by Mr. Angell in his own private business. A trip to California in 1923, WALL V. BRITTON STEVENS MOTORS CO. induced by the Angells who accompanied

(Supreme Judicial Court of Massachusetts. him, was taken by the testator who paid the

Suffolk. Feb. 28, 1925.) expenses. Meanwhile he had become excitable, forgetful, and unmindful of his finan- Sales Ow279—Contract for sale of motor truck cial obligations. But notwithstanding these

held not express warranty of quality or con

dition of truck. infirmities he bought early in 1923, at their indacement, a farm, the title being taken in seller guaranteed all parts against defective ma

Contract for sale of motor truck, whereby the name of Mrs. Angell, and on which he terial or workmanship and agreed to replace made costly improvements. The end how- free of charge any defective parts, held not an ever was evidently approaching, and the tes expressed warranty of quality of materials or tator, as has been said, went to a hospital in condition of truck, nor a promise that it could December, 1923, where he executed the will, be satisfactorily operated entitling purchaser to and while there he was constantly attended damages for inadequacy or unsatisfactory servby Mr. and Mrs. Angell, who prevented his ice of motor. friends from access to him. The closing sentence of the ninth article of the will specific

Exceptions from Superior Court, Suffolk ally declares:

County; Lawton, Judge. "I have intentionally omitted to make any

Action of contract by Patrick J. Wall gift to my cousin Effie P. Lighthipe, wife of against the Britton Stevens Motors Company. Charles F. Lighthipe, or to said Charles F. On defendant's exceptions to denial of its Lighthipe, it being my will that neither he or motion for directed verdict. Exceptions susshe shall have a share in my estate.”

tained. [3] It was drawn by Mr. Goodwin, who al

F. M. Carroll, of Boston, for plaintiff. 80 is an attesting witness, and the contest

J. H. Blanchard, of Boston, for defendant, ant's offer states that Mr. Goodwin and Mr. and Mrs. Angell without any just cause were

BRALEY, J. The declaration alleges that hostile to the contestant and her husband.. the defendant sold and delivered to the plainThe will itself with the exception of ten thou- tiff a truck equipped with a motor and ensand dollars, gives to Mrs. Angell and her gine so inadequate and defective that he has husband, absolutely or in trust for their joint suffered great trouble and expense in maklives, or the survivor of them, his entire ing repairs and lost the use of the truck property. It is true that undue influence during the time it has been laid up for rewhich is a species of fraud or partakes of pairs. The jury on the evidence of the plainthe nature of fraud, must be operative at the tiff and his witnesses would have been wartime the will is executed, yet the judge could ranted in finding that on May 7, 1921, he enassume that the foregoing statements of tered into a contract in writing for the purcounsel would be substantiated by evidence. chase of a new “five-ton Macar truck," which Bacon v. Bacon, 181 Mass. 18, 62 N. E. 990, was deliver May 18, 1921, and used in his 92 Am. St. Rep. 397; Whitcomb v. Whitcomb, business as a mover of "bales of cotton and 205 Mass. 310, 314, 91 N. E. 210, 18 Ann. Cas. wool.” But after using it he told the de410; Cook v. Mosher, 243 Mass. 149, 137 N. fendant's president “that the truck was not E. 299. If so viewed, Mrs. Angell by reason running good. It was blowing out gaskets of her personal relations with him, which I and causing

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

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