FOSTER iNO, UCSB LIBRARY STATUTORY TOBTS IN MASSACHUSETTS. STATUTORY TORTS IN MASSACHUSETTS. STATUTORY TORTS MASSACHUSETTS. BY WATERMAN L. WILLIAMS, OF THE SUFFOLK BAR. BOSTON: LITTLE, BROWN, AND COMPANY. 1899. Copyright, 1899, BY LITTLE, BROWN, AND COMPANY. All rights reserved. JOHN WILSON AND SON, CAMBRIDGE, U.S.A. CONTENTS. Page TABLE OF CASES . xiii TABLE OF STATUTES xlvii PART I. THE LIABILITY OF MUNICIPAL CORPORATIONS. 1. The source of the liability 2 2. The extent of the liability 4 3. The construction of the statute imposing it 5 4. The liability for death and personal injury independent . 6 5. The doctrine of contributory negligence 6 6. The plaintiff's physical condition 9 7. The plaintiff's knowledge of the existence of the defect . 10 8. The plaintiff's unlawful acts 11 9. Volenti non fit injuria 12 10. The plaintiff's control over his horse 13 11. The plaintiff must be a traveller 15 12. The plaintiff's motive for travelling 17 13. The mode of coming upon the defect 17 14. Who comes within the statute 17 15. He must show some bodily injury 18 16. The defect must be the proximate cause of that injury . 19 17. The defect must also be its sole cause 20 18. What constitutes a defect in the highway 22 19. The cause of the defect immaterial 24 20. The defect must be in the travelled part 25 21. Snow and ice as a defect 27 22. An illegal use of the highway as a defect 29 23. A failure to light the highway as a defect 29 CONTENTS. Page 24. Insecure projections as defects 30 25. Objects that cause horses to take fright as defects . . 32 26. The duty to erect railings 33 27. The test of the necessity of a railing 34 28. Railings erected to close a highway or to guard an exca- vation 36 29. The kind of railing required 37 30. Pleading where defect relied on is a want of a railing . 38 31. The plaintiff must show the legal establishment of the way 38 32. Highways established by statute mode 39 33. Highways established by prescription 41 34. Highways established by dedication 41 35. The effect of evidence of repairs 43 36. The liability with reference to private ways 43 37. The plaintiff must show that the defect was not remedied through a lack of due diligence on part of the town . 44 38. What evidence is competent for that purpose .... 45 39. The use of the word "persons" in the statute .... 46 40. The extent of the duty to repair the highways ... 47 41. This duty not affected by the location within the high- way of roads operated by other corporations .... 49 42. This duty cannot be avoided by delegation 50 43. The plaintiff must show that the town had notice, or might with due diligence have had notice, of the defect 51 44. Notice to whom 52 45. Actual notice of the defect 52 46. Constructive notice of the defect 53 47. The object of requiring the plaintiff to give notice of the accident 56 48. In what cases notice of the accident must be given . . 57 49. The sufficiency of such a notice 58 50. The statement therein of the time of the accident ... 59 51. The statement therein of the place of the accident . . 59 52. The statement therein of the cause of the accident . . 60 53. The right of action is complete as soon as such a notice is given 61 54. When an inaccuracy in such a notice is not fatnl ... 62 55. The limitation of the amount that may be recovered . 63 CONTENTS. Vll Page 56. The notice of the accident must be wholly in writing . 64 57. By whom it may be signed ....... ... 64 58. Its service upon the town . ........ . . 65 59. Incapacity to give it within the required time .... 66 60. The giving of it where the injured person has died with- out having given it ............. 67 61. The effect of a tender made under section 22 .... 68 Evidence as to whether or not there was a defect in the highway. 62. The act of other persons ........... 69 63. The existence of similar conditions elsewhere .... 70 64. The state of the highway at other times ...... 70 65. Admissions made by the town ......... 71 Evidence as to whether or not the defect might have been remedied. 66. The existence of similar conditions at other times . . 72 67. The expense of repairing the highway ...... 73 Evidence as to whether or not the town had notice of the defect. 68. The notoriety of the defect .......... 74 PART II. THE LIABILITY OF OWNERS OR KEEPERS OF DOGS. 69. The nature of the liability ........... 76 70. The effect of the statute imposing it. Scienter ... 76 71. Proximate cause .............. 77 72. Due care ................. 78 73. Applicatiou of the statute to injuries received outside the State ................ 80 74. The liability of owners or keepers is several only . . 81 75. What constitutes a keeper . . . . ....... 82 76. The acts of the dog . . . .......... 82 77. The intent of the dog ............ 83 78. The character of the dog ........... 83 79. Who may sue under the statute ......... 84 80. The elements of damage ........... 85 81. Doubling the damages ............ 86 VI 11 CONTENTS. PAET III. THE LIABILITY OF COMMON CARRIERS OF PASSENGERS. I. Steam Railroads, (a) Pub. Sts., ch. 112, s. 212. Page 82. The liability for causing death purely statutory . . 88 83. And is essentially penal in its nature 89 84. The statute applies where the death was not instan- taneous as well as where the deceased was instantly killed 90 85. The negligence of the corporation distinct from the gross negligence of its servants 91 86. The negligence of the corporation 91 87. The gross negligence of its servants 93 88. The meaning of " operating a railroad " 93 89. The meaning of " while engaged in its business " . . 94 90. When the relation of passenger and carrier arises . . 95 91. The effect of the payment of fare upon the relation . 97 92. The termination of the relation by the act of the pas- senger 98 93. The termination of the relation in the usual course of events 99 94. The question of the due care of the passenger . . . 100 95. A person not a passenger must be shown to have been in the exercise of due care 101 96. The meaning of " in employment of such corporation" as applied to such a person 102 97. It must appear that administration has been taken out in this Commonwealth 102 98. And that a beneficiary exists 103 99. Trespassers 104 100. Negligence on the part of the defendant must be shown 105 101. The effect of the amendment of 1883 106 I. Steam Railroads, (b) Pub. Sts., ch. 112, s. 213. 102. The distinction between proceeding under s. 212 and s. 213 108 CONTENTS. IX Page 103. What the plaintiff must allege in his pleadings . . . 110 104. He must show that the accident happened at a cross- ing over such a way as is described in s. 163 . . . 110 105. The omission to give the required signals 112 106. The evidence of the omission of the signals .... 112 107. The plaintiff must show that such omission con- tributed to the injury 114 108. Gross negligence of the injured person a matter of de- fence only 115 II. Proprietors of Steamboats, Stage-coaches, etc. 109. The scope of the statute imposing liability upon them 117 III. Street Railways. 110. The statute simply creates a new remedy 118 111. The construction of the statute 119 112. Who is a passenger within the statute 120 113. Trespassers 121 PAKT IV. THE LIABILITY OF EMPLOYERS. 114. The construction of the act imposing the liability . . 122 115. The general effect of the act 123 116. The common law liabilities of employers unaffected by the act 124 117. Declaring under the act. Counts 125 118. The defence of common employment 126 119. The creative operation of the act 126 120. Application of the act to municipal corporations . . 127 121. Waiver by the employee of the rights given by the act 128 122. Assumption of risk. Defects in ways, works, or machin- ery 129 123. Exceptions to the doctrine of assumption of risk . . 131 124. Volent i non fit injuria 133 125. Assumption of risk. Negligence of superintendent . 134 X CONTENTS. PBRO 126. Actions under the act in the Federal courts .-. . . 135 127. Who may sue under the act. What he must show . 136 128. The requirement as to due care 136 129. Some principles of the law of due care applied under the act 137 130. The provisions of s. 1, cl. 1, extend the liability of em- ployers 140 131. The relation of the defect in the ways, etc., to the in- jury 141 132. What defects come within the clause 142 133. The presence of extraneous substances as a defect . . 143 134. The failure to supply safety contrivances as a defect . 143 135. The negligent use of safe appliances as a defect . . . 144 136. The unsuitableness of safe appliances as a defect . . 144 137. A dangerous method of carrying on business as a defect 145 138. Variance between declaration and proof as to charac- ter of defect 146 139. The meaning of the phrase " in the condition " . . . 146 140. Paths necessarily used as a part of the ways . . . . 146 141. Explosives as a part of the ways or works 147 142. Partially completed and temporary structures as part of the ways or works 147 143. The plaintiff must show that the ways, etc., were under the control of the employer and were used by his au- thority 149 144. The general application of this rule 150 145. The application of this rule to foreign cars . . . . 151 146. The effect of the words " which arose from ". . . . 152 147. Or had not been discovered or remedied 153 148. Remedied 153 149. The duty of the employer to furnish and maintain safe appliances 154 150. The duty of the employer relative to inspection . . . 155 151. How clause one extends the liability of employers . . 156 152. A person intrusted 157 153. The provisions of s. 1, cl. 2, further extend the liability of employers 158 154. What is negligence of the superintendent 159 CONTENTS. Xi Page i 155. The negligence of the superintendent need not be the sole cause of the injury 160 156. Who is a superintendent 160 157. He must be a person intrusted with superintendence . 161 158. He must be exercising superintendence 163 159. Sole or principal duty 164 160. Superintendence as a sole duty 165 161. Superintendence as a principal duty 166 162. The limits of the operation of clause two 169 163. The general effect of clause three 171 164. The scope of clause three 172 165. For whose negligence it makes the employer responsible 173 166. Charge or control 174 167. The entire charge or control need not be in one person 176 168. The person in charge or control of a train need not be npon it 176 169. The clause applies only to a "signal ... or train " as a whole 177 170. What constitutes a train 178 171. The construction of the word "railroad" 179 172. The locomotive or train must be actually " upon a rail- road" when the accident happens 180 173. Section one of the act as originally passed does not make the death of an employee a substantive cause of action 181 174. Position of an employee suing under the act .... 181 175. The rights given by the amendment of 1 892 .... 184 176. The effect of that amendment 185 177. The subject-matter and object of section two of the act 185 178. Due care on the part of the deceased 186 1 79. The plaintiff must establish the fact that the death was instantaneous or without conscious suffering . . . 187 180. What constitutes death without conscious suffering . 188 181. Wherein the section makes a distinction between the negligence of the employer and that of his employees 1 89 182. In whom the right of action is vested 190 183. A next of kin must establish the fact of dependence . 190 184. What constitutes dependence 191 185. The meaning of the final provision of section two . . 192 186. The subject-matter of section three 194 XI 1 CONTENTS. Page 187. The requirement of notice of the accident 194 188. The construction of such notice 195 189. The statement therein of the time of the accident . . 196 190. The statement therein of the place of the accident . . 196 191. The statement therein of the cause of the accident . 196 192. The service of the notice 197 193. The allegation of notice in the declaration .... 198 194. The signing of the notice by the attorney 198 195. The giving of the notice where death is instantaneous 198 196. The provisions as to notice do not apply to common law cases 199 197. When the insufficiency of the notice becomes immaterial 200 198. The effect of section four of the act 201 199. The contractor may also be the "person entrusted" . 202 200. Section five of the act creates, not a condition, but a defence 203 PAET V. THE LIABILITY OF OTHER PERSONS AND CORPORATIONS. I. Telegraph Companies 204 II. Gas and Electric Light Corporations 206 III. Persons and Corporations in General 207 APPENDIX A. Public Statutes, ch. 52, ss. 17-22 209 Acts, 1887, ch. 270, as amended 212 APPENDIX B. The development of the statute imposing liability upon mu- nicipal corporations 217 The development of the statute imposing liability upon com- mon carriers ... .... 221 INDEX . 227 TABLE OF CASES. Page Adams v. Carlisle (21 Pick. 146) 6 v. Chicopee (147 Mass. 440) 27 Gregory v. (14 Gray, 242) 49 v. Natick (13 Allen, 429) 33, 34, 36 Snow v. (1 Cash. 443) 20,22,24,26 Adasken v. Gilbert (165 Mass. 443) 148, 167 ^Etna Mills, Rosebackf. (158 Mass. 379) ..... 161,167 Aldrich v. Pelham (1 Gray, 510) 69, 70 Alger v. Lowell (3 Alleu, 402) 9, 21, 34, 3d Allen v. Smith Iron Co. (160 Mass. 557) 145,155 Allerton y. Boston & Maine Railroad (146 Mass. 241) . 100,110 Alley, Dolan v. (153 Mass. 380) 198 Irwin v. (158 Mass. 249) 138 Allyn, Lynch v. (160 Mass. 248) 132, 134, 197 Amesbury, Welsh v. (170 Mass. 437) 52,53 Amherst, Lyman v. (107 Mass. 339) 37, 38 Pratt v. (140 Mass. 167) 22, 23, 24, 36 Andover, Jones v. (9 Pick. 146) 40 Jones v. (10 Allen, 18) 11,12 Palmer v. (2 Cush. 600) 7, 22 Arey v. Newton (148 Mass. 598) 22,26 Arlington, Bemisv. (114 Mass. 507) 20,32 Ashley v. Hart (147 Mass. 573) 157 Aston v. Newton (134 Mass. 507) 26,39,41,60 Atkins v. Merrick Thread Co. (142 Mass. 431) 156 Attleborough, Hayden v. (7 Gray, 338) .... 27, 34, 39, 43 Rochefort v. (154 Mass. 140) 54 XIV TABLE OF CASES. Page Attleborough, Stone v. (140 Mass. 328) 33 Austin v. Boston & Maine Railroad (164 Mass. 282) . . 130, 131 Babson v. Rockport (101 Mass. 93) 15, 20 Bacon v. Boston (3 Cash. 174) 20, 70 v. Charlton (7 Cash. 581 ) 68 Baddeley v. Earl Granville (19 Q. B. D. 423) 132 Badger, Graham v. (164 Mass. 42) 182 Bagley v. New York, etc. Railroad (165 Mass. 160) .... Ill Bailey v. Boston (116 Mass. 423) 49 v. Everett (132 Mass. 441) 60 Baker, Smith v. ([1891] A. C. 325) 133, 145 Ballard, VVeblin v. (17 Q. B. D. 122) 182 Barbers Roxbury (11 Allen, 318) 22,29 Barclay v. Boston (167 Mass. 596) 66 Barnard, Reynolds v. (168 Mass. 226) 148, 149, 166 Barnes v. Chicopee (138 Mass. 67) 34,35 Barnstable, Hinckley v. (109 Mass. 126) 6 Barrett v. Maiden and Melrose Railroad (3 Allen, 101) . . . 82 Barton v. Springfield (110 Mass. 131) 10 Bayley v. Eastern Railroad (125 Mass. 62) . . . . . . .112 Beauregarde v. Webb Granite, etc. Co. (160 Mass. 201) . . 1 25 Beique v. Hosmer (169 Mass. 541) 130,148 Bemis v. Arlington (114 Mass. 507) 20,32 Bent, Whittakerw. (167 Mass. 588) 142,154,168 Berkshire Railroad Co., Carey v. (1 Cash. 475) 89 Berrenberg v. Boston (137 Mass. 231) 71 Beverly, Liffint;. (145 Mass. 549) 62 Bigelowu. Randolph (14 Gray, 541) 3 v. Rutland (4 Cash. 247) 10 Billings v. Worcester (102 Mass. 329) 25, 27, 45, 53 Birge, Flumley v. (124 Mass. 57) 78, 79 Blackstone v. County Commissioners (108 Mass. 68) . . . . 38 Kelly v. (147 Mass. 448) 10 Blair v. Pelham (118 Mass. 420) 69 Blake v. Lowell (143 Mass. 296) 51, 52 Blessiugton v. Boston (153 Mass. 409) 51 Bliss v. Deerfield (13 Pick. 102) 39, 40 v. South Hadley (145 Mass. 91) 1G Blodgett v. Boston (8 Allen, 237) 5, 15, 17 TABLE OF CASES. XV Page Blood v. Tyngsborough (103 Mass. 509) ........ 6 Ely v. Haverhill (110 Mass. 520) 6 Boclwell v. North Andover (110 Mass. 511 n.) 45 Boston, Bacon v. (3 Cush. 174) 20, 70 Bailey v. (116 Mass. 423) 49 Barclay v. (167 Mass. 596) 66 Berrenberg v. (137 Mass. 231) .71 Blessington v. (153 Mass. 409) 51 Blodgett v. (8 Allen, 237) 5,15,17 Bowes v. (155 Mass. 344) 6,32,61 Bowman v. (5 Cush. 1) 40 Burtv. (122 Mass. 223) 23 Canterbury v. (141 Mass. 215) 58 Commonwealth v. (97 Mass. 555) 204 Crafts v. (109 Mass. 519) 9 Cromarty v. (127 Mass. 329) 22, 24 Cronini>. (135 Mass. 110) 59 Crosby v. (118 Mass. 71) 52 Damon v. (149 Mass. 147) 33 Donaldson v. (16 Gray, 508) 52, 53, 71 Foster v. (127 Mass. 290) 52 Gerald v. (108 Mass. 580) 37 Gould v. (120 Mass. 300) 39,41 Grahams. (156 Mass. 75) 16 Hamilton v. (14 Allen, 475) 16,18 Hanscom v. (141 Mass. 242) 52, 53 Harriman v. (114 Mass. 241) 53 Hemphill v. (8 Cush. 195) 42 Hennessy v. (161 Mass. 502) 139,170,171,182 Higgins v. (148 Mass. 484) 14 Hilton v. (171 Mass. 478) 8 Hutchins v. (12 Allen, 571 n.) 27 Jones v. (104 Mass. 75) 30,31 Kimball v. (1 Allen, 417) 18 Larkin v. (128 Mass. 521) 58,59 Mahoney v. (171 Mass. 427) 128 May v. (150 Mass. 517) 66 McAuley . (113 Mass. 503) 28 McDougal v. (134 Mass. 149) 61 Xvi TABLE OF CASES. Page Boston, McGaffigan v. (149 Mass. 289) 23, 53 McGowan v. (170 Mass. 384) 27 McKennay. (131 Mass. 143) 39,42 Morse v. (109 Mass. 446) 28 Nason v. (14 Allen, 508) 27 Neal v. (160 Mass. 518) 71 Post v. (141 Mass. 189) 54, 73 Powers v. (154 Mass. 60) 23 Prentisst). (112 Mass. 43) 49,51 Richardson v. (156 Mass. 145) 33 Saunders v. (167 Mass. 595) 66 Scanlan v. (140 Mass. 84) 4 Steelev. (128 Mass. 583) 44 Veale v (135 Mass. 187) 39,41 White v. (122 Mass. 491) 36 Wilson v. (117 Mass. 509) 39,43,47 Woods v. (121 Mass. 337) 6 Boston & Albany Railroad, Caron v. (164 Mass. 523) 132, 137, 146, 174, 175, 178, 187 Cassadyu. (164 Mass. 168) 130 Commonwealth v. (121 Mass. 36) 103 Daley v. (147 Mass. 101) 94 Devine v. (159 Mass. 348) 175, 176, 177 Dickie v. (131 Mass. 516) 57 Dowd v. (162 Mass. 185) 167 Doyle v. (145 Mass. 386) 115 Elkinsu. (115 Mass. 190) 114 Fairman v. (169 Mass. 170) 178 Fitzgerald v. (156 Mass. 293) 169,170 Fuller v. (133 Mass. 491) 107 Goodes v. (162 Mass. 287) 107 Grangers (146 Mass. 276) 116 Hanks v. (147 Mass. 495) 112 Hodnett v. (156 Mass. 86) ....... 188,191,192 Hubbard v. (159 Mass. 320) 113 Hubbard v. (162 Mass. 132) 93,101 Jones v. (157 Mass. 51) 199 June v. (153 Mass. 79) 96,110 Lyman v. (70 Fed. Rep. 409) 89 TABLE OF CASES. XVli Page Boston & Albany Railroad, Lynch v. (159 Mass. 536) . 137, 138 Mack v. (164 Mass. 393) 57 Maher v. (158 Mass. 36) 139,187,188,192 Harden v. (159 Mass. 393) 112 Murphy v. (167 Mass. 64) 141 Perkins v. (90 Fed. Rep. 321) 90 Reed v. (164 Mass. 129) 182 Sprow v. (163 Mass. 330) Ill Sullivan v. (156 Mass. 378) 104 Tilton v. (169 Mass. 253) 101 Boston Cordage Co., McGee v. (139 Mass. 445) 141 Boston Electric Light Co., Flynn j>. (171 Mass. 395) ... 168 Hector r. (161 Mass 558) 205, 207 Illingsworth v. (161 Mass. 583) 205 Willey v. (168 Mass. 40) 146, 154, 188 Boston Manufacturing Co., Tenanty v. (170 Mass. 323) . . 130 Boston & Lowell Railroad, Commonwealth v. (126 Mass. 61) 94, 101 Commonwealth v. (134 Mass. 211) 89,100 Lowell v. (23 Pick. 24) 24 Boston & Maine Railroad, Allerton v. (146 Mass. 241) 100, 110 Austin v. (164 Mass. 282) 130,131 Bradley v. (2 Cush. 539) 109 Clark v. (164 Mass. 434) 101 Coakley v. (159 Mass. 32) Ill Commonwealth v. (129 Mass. 500) 99 Commonwealth v. (133 Mass. 383) 91, 93, 107, 108, 109, 112 Felt v. (161 Mass. 311) 136 Johanson v. (153 Mass. 57) Ill, 114 Manley v. (159 Mass. 493) 116 McCreary v. (153 Mass. 300) 104,111 McKimble v. (139 Mass. 542) 98, 100 McKimble v. (141 Mass. 463) 99 Mears v. (163 Mass. 150) 139, 187, 188 Menard v. (150 Mass. 386) 113,114 Shear. (154 Mass. 31) 139,186 Shepard v. (158 Mass. 174) .... 139 St. Jean v. (170 Mass. 213) 140 Thompson v. (153 Mass. 391) 139 Walsh v. (171 Mass. 52) 110,113,115 6 XV111 TABLE OP CASES. Page Boston & Maine Railroad, Whittaker v. (7 Gray, 98) . . . Ill Wright v. (129 Mass. 440) 110 Boston & Providence Railroad, Carter v. (139 Mass. 525) . . 47 Boston, R. B. & L. Railroad, Inness v. (168 Mass 433) ... 96 Boston Tow-Boat Co., Coughlin v. (151 Mass. 92) .... 124 Johnson v. (135 Mass. 209) 141 Boston Water Power Co., Taylor r. (12 Gray, 415) . . . 39,41 Boston & Worcester Railroad, Commonwealth v. (11 Cush. 512) 104, 107 Commonwealth v. (101 Mass. 201) 92,93 Farwell v. (4 Met. 49) 134, 171 Bosworth, Brick v. (162 Mass. 334) 196,197 v. Swansey (10 Met. 363) 11 Boulester v. Parsons (161 Mass. 182) 78,79 Bourget v. Cambridge (156 Mass. 391) 17 v. Cambridge (159 Mass. 388) 53 Bowers v. Connecticut River Railroad (162 Mass. 312) 149, 152, 157 v. Suffolk Manufacturing Co. (4 Cush. 332) 42 Bowes v. Boston (155 Mass. 344) 6,32,61 Bowman v. Boston (5 Cush. 1) 40 Boxford, Stevens v. (10 Allen 25) 6 Brackenridge v. Fitchburg (145 Mass. 160) 8 Bradford, Merrill v. (110 Mass. 505) 69,70 Bradley v. Boston & Maine Railroad (2 Cush. 539) .... 109 Consolidated, etc. Machine Co. v. (171 Mass. 127) . . . 203 Brady v. Lowell (3 Cush. 121) 5 v. Ludlow Manufacturing Co. (154 Mass. 468) . . 125,142 v. Old Colony Railroad (162 Mass. 408) 101 Brewer v. Crosby (11 Gray, 29) 84 Brick v. Bosworth (162 Mass. 334) 196, 197 Bridgewater, Thompson v. (1 Pick. 188) 6, 7, 21 Tisdale v. (167 Mass. 248) . . . 34,35 Britton v. Cummington (107 Mass. 347) 6,14,16 Brockton, Little v. (123 Mass. 511) 6,21 Paine v. (138 Mass. 564) 44 Brockton Street Railway, Commonwealth v. (143 Mass. 501) 95 Broderick v. Higginson (169 Mass. 482) 84 Brookline, Lyons v. (119 Mass. 491) 15.20 Brooks v. Petersham (16 Gray, 181) 7,71 TABLE OF CASES. XIX Page Brooks v. Somerville (106 Mass. 271) . 23,51,52 Brouillette v. Conn. River Railroad (162 Mass. 198) ... 132 Brown v. Lawrence (120 Mass. 1) 43 Browne v. New York, etc. Railroad (158 Mass. 247) ... 186 Brownell, O'Keefe v. (156 Mass. 131) 126,144,192 Buckley v. Old Colony Eailroad (161 Mass. 26) 99 Buddington v. Shearer (20 Pick. 477) 81, 84, 86 Burford, Jones v. (1 Times Law Rep. 137) 151 Burns v. Stuart (168 Mass. 19) 84 v. Washburn (160 Mass. 457) 148, 169 Burt v. Boston (122 Mass. 223) 23 Cambridge, Bourget v. (156 Mass. 391) 17 Bourget v. (159 Mass. 388) 53 Coughlan v. (166 Mass. 268) 127, 179, 197 Gay v. (128 Mass. 387) 4, 5, 56 Hayes P. (136 Mass. 402) 46,73 Lyon v. (136 Mass. 419) 30 Lyons v. (132 Mass. 534) 66,67 McCabe v. (134 Mass. 484) 59, 66 McNulty v. (130 Mass. 275) 58, 60 Scannal v. (163 Mass. 91) 34,35 Cambridge Railroad Co., Gunn v. (144 Mass. 430) . . . . 119 Canning v. Williamstown ( 1 Cush. 451) 19 Canterbury i'. Boston (141 Mass. 215) 58 Carberry v. Sharon (166 Mass. 32) 62,65 Carey v. Berkshire Railroad Co. (1 Cush. 475) 89 v. Hubbardston (172 Mass. 106) 26 Carlisle, Adams v. (21 Pick. 146) 6 Caron v. Boston & Albany Railroad (164 Mass. 523) 132, 137, 146, 174, 175, 178, 187 Carrigan v. Washburn & Moen Mfg. Co. (170 Mass. 79) . . 132 Carroll v. Willcutt (163 Mass. 221) 143,160,171 Carter v. Boston & Providence Railroad (139 Mass. 525) . . 47 Cashman v. Chase (156 Mass. 342) 163,164,167 Cassady r. Boston & Albany Railroad (164 Mass. 168) . . 130 Cavagnaro v. Clark (171 Mass. 359) 163,166,168 Charlestown, Cook v. (98 Mass. 80) 32 Wilson v. (8 Allen, 137) 6,10,11,13 XX TABLE OF CASES. Page Charlton, Bacon r. (7 Cush. 581) 68 Davis v. (140 Mass. 422) 60 Chase, Cashman v. (156 Mass. 342) 163, 164, 167 v. Lowell (149 Mass. 85) 32 v. Lowell (151 Mass. 422) 53,74 Chelsea, Pettingell v. (161 Mass. 368) 128,182 Shepherd v. (4 Allen, 113) 20,29 Chemical Paper Co., McLean r. (165 Mass. 5) 186 Chicopee, Adams v. (147 Mass. 440) 27 Barnes r. (138 Mass. 67) 34,35 Dowdr. (116 Mass. 93) 8,23 Spellman v. (131 Mass. 443) 27, 58 Chisholm v. Old Colony Railroad (159 Mass. 3) 93 Clapp, Mitchell v. (12 Cush. 278) 76 Clare v. New York & New England Railroad (167 Mass. 39) 141 v. New York& New England Railroad (172 Mass. 211) 90, 107, 124, 125 Clark v. Boston & Maine Railroad (164 Mass. 434) .... 101 Cavagnaror. (171 Mass. 359) 163,166,168 v. Commonwealth (4 Pick. 125) 25 v. Merchants', etc. Transportation Co. (151 Mass. 352) . 124 v. New York, etc. Railroad (160 Mass. 39) . 106, 127, 184, 190 v. Waltham (128 Mass. 567) 44 Clarksburg, Horrigan v. (150 Mass. 218) 8,20 Clinton, Conroy v. (158 Mass. 318) 126, 127, 157 Lowe v. (133 Mass. 526) 59 Lower. (136 Mass. 24) 26 Coakley v. Boston & Maine Railroad (159 Mass. 32) . . . Ill Coan t. Marlborough (164 Mass. 206) 127 Coburn, Commonwealth v. (132 Mass. 555) 117 Cochrane Chemical Co., Dane r. (164 Mass. 453) . 161, 162, 170, 202 Coffee v. New York, etc. Railroad (155 Mass. 21) ... 149, 152 Coggswell P. Lexington (4 Cush. 307) 27,34 Colerain, Shepardson v. (13 Met. 55) 20 Collingill v. Haverhill (128 Mass. 218) 82 Collins v. Dorchester (6 Cush. 396) 69, 72 v. Greenfield (1 72 Mass. 78) 128 Columbia Spinning Co., French v. (169 Mass. 531) .... 144 Commonwealth v. Boston (97 Mass. 555) 204 TABLE OF CASES. Xxi Page Commonwealth v. Boston & Albany Railroad (121 Mass. 36) . 103 v. Boston & Lowell Railroad (126 Mass. 61) . . . .94, 101 v. Boston & Lowell Railroad (134 Mass. 211) . . .89, 100 v. Boston & Maine Railroad (133 Mass. 383) 91, 93, 107, 108, 109, 112 v. Boston & Maine Railroad (129 Mass. 500) .... 99 v. Boston & Worcester Railroad (101 Mass. 201) . . 92, 93 p. Boston & Worcester Railroad (11 Cush. 512) . 104, 107 v. Brockton Street Railway (143 Mass. 501) 95 Clark v. (4 Pick 125) 25 v. Coburn (132 Mass. 555) 117 v. Coupe (128 Mass. 63) 41 v. East Boston Ferry Co. (13 Allen, 589) 103, 117 v. Eastern Railroad (5 Gray, 473) 103 v. Fitchburg Railroad (120 Mass. 372) ... 91, 93, 107, 109 v. Fitchburg Railroad (10 Allen, 189) 105 v. Hart (11 Cush. 130) 63 v. Hartnett (3 Gray, 450) 123 v. Metropolitan Railroad (107 Mass. 236) 90 v. Sanford(12 Gray, 174) 102 v. Vermont & Mass. Railroad (108 Mass. 7) . . . 90,97,98 v. Wilmington (105 Mass. 599) 33 Connecticut River Mfg. Co., Prendible v. (160 Mass. 131) . 149, 167 Connecticut River Paper Co., Fitzgerald . (155 Mass. 155) 13, 133 Connecticut River Railroad, Bowers v. (162 Mass. 312) 149, 152, 157 Brouillette v. (162 Mass. 198) 132 Dillon v. (154 Mass. 478) 104 Houlihan v. (164 Mass. 555) 139,191 Lawless v. (136 Mass. 1) 140 Connelly v. Hamilton Woolen Co. (1G3 Mass. 156) .... 130 Coimers v. Lowell (158 Mass. 336) 62 Connolly r.Waltham (156 Mass. 368) 127,160,203 Conroy v. Clinton (158 Mass. 318) 126,127,157 Consolidated, etc. Machine Co. e>. Bradley (171 Mass. 127) . 203 Conway, Smith v. (121 Mass. 216) 11 Cook v. Charlestown (98 Mass. 80) 32 v. Montague (115 Mass. 571) 32 Copley v. New Haven & Northampton Co. (136 Mass. 6) . 114, 116 Coughlan v. Cambridge (166 Mass. 268) ..... 127, 179, 197 XX11 TABLE OF CASES. Page Coughlin v. Boston To w-Boat Co. (151 Mass. 92) 124 Coughtry v. Globe Woolen Co. (56 N. Y. 124) . . . . 201, 202 Couuty Commissioners, Blackstone v. (108 Mass. 68) ... 38 Coupe, Commonwealth v. (128 Mass. 63) 41 Crafts v. Boston (109 Mass. 519) 9 Creamer v. West End Railway (156 Mass. 320) . . . 120,121 Cromarty v. Boston (127 Mass. 329) 22,24 Crombie, Lane v. (12 Pick. 177) 7 Cronin v. Boston (135 Mass. 110) 59 Crosby v. Boston (118 Mass. 71) 52 Brewer v. ( 1 1 Gray 29) 84 Crowley v. Cutting (165 Mass. 436) 167,170 Cummington, Britton v. (107 Mass. 347) 6, 14, 16 Cunningham v. Lynn & Boston Street Railway (170 Mass. 298) 130, 167 Cushing, Fisher v. (134 Mass. 374) 44,47 Cutting, Crowley v. (165 Mass. 436) 167, 170 Dacey v. New York, etc. Railroad (168 Mass. 479) .... 138 v. Old Colony Railroad (153 Mass. 112) . 106,127,178,190 Daily v. Worcester (131 Mass. 452) 35 Daley v. Boston & Albany Railroad (147 Mass. 101) ... 94 Daltonv. Salem (131 Mass. 551) 60 v. Salem (136 Mass. 278) 58 v. Salem (139 Mass. 91) 64 Daly v. New Jersey Steel & Iron Co. (155 Mass. 1) . 190, 191, 194, 199 Damon v. Boston (149 Mass. 147) 33 v. Scituate (119 Mass. 66) 11 Dane v. Cochrane Chemical Co. (164 Mass. 453) 161, 162, 170, 202 Daniels v. Lowell (139 Mass. 56) 71 Davis v. Charlton (140 Mass. 422) 60 v. Dudley (4 Allen, 557) '. . . 14 v. Leominster (1 Allen, 182) 4,47,49 v. Longmeadow (169 Mass. 551) 19 r. New York & New England Railroad (143 Mass. 301) . 80 v. New York, N. H. & H. Railroad (159 Mass. 532) 134, 138, 139, 167, 170, 176 Day v. Milford (5 Allen, 98) 30 TABLE OF CASES. XXlll Page Day, Zeiglerv. (123 Mass. 152) 158 Dean v. Smith (169 Mass. 569) 171 Dean Steam Pump Co., Geloneck v. (165 Mass. 202) 132, 144, 149, 167 Debbins v. Old Colony Railroad (154 Mass. 402) 116 Dedham, Kingsbury v. (13 Allen, 186) 32 Deerfield, Bliss v. (13 Pick. 102) 39,40 Oilman v. (15 Gray, 577) 6,10,11,13 Denison v. Lincoln (131 Mass. 236) 78, 83 Dennis, Sears v. (105 Mass. 310) 21 Devine v. Boston & Albany Railroad (159 Mass. 348) 175, 176, 177 Dickerman v. Old Colony Railroad (157 Mass. 52) .... 199 Dickie v. Boston & Albany Railroad (131 Mass. 516) ... 57 Dietrich v. Northampton (138 Mass. 14) 18 Dillon v. Connecticut River Railroad (154 Mass. 478) . . . 104 Dobbins v. West End Street Railway (168 Mass. 556) ... 57 Doherty v. Waltham (4 Gray, 596) 37 Dolan v. Alley (153 Mass. 380) 198 Dolphin v. Plumley (167 Mass. 167) 147 Donahoe v. Old Colony Railroad (153 Mass. 356) . 176, 177, 196 Donahue v. Washburn & Moen Mfg. Co. (169 Mass. 574) . . 130 Donaldson v. Boston (16 Gray, 508) 52,53,71 Donnelly v. Fall River (132 Mass. 299) 58, 59 Donovan, Regan v. (159 Mass. 1) 151 Toomey v. (158 Mass. 232) 124, 202 Dorchester, Collins v. (6 Cush. 396) 69,72 Vinal v. (7 Gray, 421) 29,50 Dore, Mahoney v. (155 Mass. 513) 134 Doughty V. Firbank (10 Q. B. D. 355) 179 Douglas, Roberts v. (140 Mass. 129) 59,60 Young v. (157 Mass. 383) 60 Dowel v. Boston & Albany Railroad (162 Mass. 185) . . . 167 v. Chicopee (116 Mass. 93) 8,23 Doyle v. Boston & Albany Railroad (145 Mass. 386) . . . 115 v. Fitchburg Railroad (162 Mass. 66) 90, 97, 102 Drake v. Lowell (13 Met. 292) 30 Drew, Holmes v. (151 Mass. 378) 44,57 Driscoll v. Fall River (163 Mass. 105) 96 Drommje v. Hogan (153 Mass. 29) 200, 201 XXIV TABLE OP CASES. Page Drury v. Worcester (21 Pick. 44) 39, 40 Dudley, Davis v. (4 Allen, 557) 14 v. Weston (1 Met. 477) 72 Duffy v. Upton (113 Mass. 544) 182 Dunstable, Kidder v. (7 Gray, 104) 20 Kidder v. (11 Gray, 342) 11,69,70 Durgin v. Lowell (3 Allen, 398) 44 Dyer v. Fitchburg Railroad (170 Mass. 148) .... 139,186 Earl Granville, Baddeley v. (19 Q. B. D. 423) 132 East Boston Ferry Co., Commonwealth v. (13 Allen, 589) 103, 117 Eastern Railroad, Bay ley v. (125 Mass. 62) 112 Commonwealth v. (5 Gray, 473) 103 Merrill v. (139 Mass. 238) 93, 97 Merrill v. (139 Mass. 252) 100 Norton v. (113 Mass. 366) 110 Pollock v. (124 Mass. 158) 110 Prescott v. (113 Mass. 370 n.) 110 Easthampton, Fortin v. (142 Mass. 486) 62, 64 Fortiii v. (145 Mass. 196) 53 Easton, Keith v. (2 Allen, 552) 26, 32 Washburn v 32 Eaton v. Woburn (127 Mass. 270) 18 Edwards v. Worcester (172 Mass. 104) 9,72 Elkins v. Boston & Albany Railroad (115 Mass. 190) . . .114 Ellsbury v. New York, etc. Railroad (172 Mass. 130) .... 130 Elmer v. Locke (135 Mass. 575) 141 Elston, Fleming?;. (171 Mass. 187) 171 Enfield, Richards v. (13 Gray, 344) 20 Engel v. New York, etc. Railroad (160 Mass 260) . 150, 151, 153 Essex Electric Street Railway, Gay v. (159 Mass. 242) . 119, 121 E-.erett, Bailey v. (132 Mass. 441) 60 Fairman v. Boston & Albany Railroad (169 Mass. 170) . . .178 Fallen v. West End Railway (171 Mass. 249) 180 Fall River, Donnelly v. (132 Mass. 299) 58,59 Driscoll v. (163 Mass. 105) 196 Powers?). (168 Mass. 60) 132,139 Taggartv. (170 Mass. 325) 127 TABLE OF CASES. XXV Page Farwell v. Boston & Worcester Railroad (4 Met. 49) . . 134, 171 Favour, Sherman r. (1 Allen, 191) 77,82,83,84 Felt v. Boston & Maine Railroad (161 Mass. 311) 136 Finch, Howe v. (17 Q. B. D. 187) 148 Firbank, Doughty v. (10 Q. B. D. 355) 179 Fisher v. Gushing (134 Mass. 374) 44,47 Fisk v. Fitchburg Railroad (158 Mass. 238) 130, 155 Fitcliburg, Brackenridge v. (145 Mass. 160) 8 Stockwell v. (110 Mass. 305) 33,41 Weare v. (110 Mass. 334) 6,10 Fitchburg Railroad, Commonwealth c. (10 Allen, 189) . . . 105 Commonwealth v. (120 Mass. 372) . . . .91, 93, 107, 109 Doyle/;. (162 Mass. 66) 90,97,102 Dyer v. (170 Mass. 148) 139,186 Fisk v. (158 Mass. 238) 130,155 Ford r. (110 Mass. 240) 141 Geyette v. (162 Mass. 549) 137, 138, 139 Holden v. (129 Mass. 268) 140,154 Littlejohn v. (148 Mass. 478) 89,97,105,106 Livermore v. (163 Mass. 132) 101,109,112 Lothropr. (150 Mass. 423) 133,186 Maguire v. (146 Mass. 379) 101 Murray v. (165 Mass. 448) 101 Peaslee v. (152 Mass. 155) 106 Sullivan v. (161 Mass. 125) 130 Thyng v. (156 Mass. 13) . . 138, 145, 156, 172, 173, 178, 180 Tuttle v. (152 Mass. 42) 114 Webster v. (161 Mass. 298) 95,96,97 Fitzgerald v. Boston & Albany Railroad (156 Mass. 293) . 169, 170 v. Connecticut River Paper Co. (155 Mass. 155) . . 13, 133 Flagg D. Hudson (142 Mass. 280) 19, 21 Flaherty v. Norwood Engineering Co. (172 Mass. 134) . . . 137 Flanders v. Norwood (141 Mass. 17) 25,45 Fleming v. Elston (171 Mass. 187) 171 v. Springfield ( 1 54 Mass. 520) 54 Floyd i: Sugden (134 Mass. 563) 158 Flynn v. Boston Electric Light Co. (171 Mass. 395) .... 168 Fogg v. Nahant (98 Mass. 578) 14 Foley v. Pettee Machine Works (149 Mass. 294) 195 XXVI TABLE OP CASES. Page Ford v. Fitchburg Railroad (110 Mass. 240) 141 Fortin v. Easihampton (142 Mass. 486) 62, 64 v. Easthampton (145 Mass. 196) 53 Foss r. Old Colony Railroad (170 Mass. 168) 140 Foster v. Boston (127 Mass. 290) 52 Fowler v. Gardner (169 Mass. 505) 50 Framingham, Wheeler v. (12 Cush. 287) 72 Freetown, Spooner v. (139 Mass. 235) 60, 72 French v. Columbia Spinning Co. (169 Mass. 531) .... 144 Frost v. Waltham (12 Allen, 85) 10 Fuller v. Boston & Albany Railroad (133 Mass. 491) . . . . 107 v. Hyde Park (162 Mass. 51) 62 Malcolm v. (152 Mass. 160) .... 134, 159, 161, 167, 170 Gagnon v. Seaconnet Mills (165 Mass 221) 170 Galbraithv. West End Rail way (165 Mass. 572) 120 Galvin u. Parker (154 Mass. 346) 77,81 Gardner, Fowler v. (169 Mass. 505) 50 v. New England Telephone, etc. Co. (170 Mass. 156) . . 167 Noyes v. (147 Mass. 505) 4, 53 Smithy. (11 Gray, 418) 11 Welch v. (133 Mass. 529) . 59,67 v. Weymouth (155 Mass. 595) 62 Gay v. Cambridge (128 Mass. 387) 4,5,56 v. Essex Electric Street Railway (159 Mass. 242) . 119, 121 Gelonecki;. Dean Steam Pump Co. (165 Mass. 202) 132, 144, 149, 167 George v. Haverhill (110 Mass. 506) 10,70,71 Gerald v. Boston (108 Mass. 580) 37 Geyette v. Fitchburg Railroad (162 Mass. 549) . . 137, 138, 139 Ghenn v. Proviucetown (105 Mass. 313) 23 Gibbs v. Great Western Railway (12 Q. B. D. 208) .... 126 Gibson v. Jenney ( 1 5 Mass. 205) .172 Gilbert, Adasken v. (165 Mass. 443) 148, 167 v. Roxbury (100 Mass. 185) 27 Oilman v. Deerfield (15 Gray, 577) 6,10,11,13 Gleason v. New York, etc. Railroad (159 Mass. 68) . . 130,155 Globe Woolen Co., Coughtry v. (56 N. Y. 124) .... 201,202 Gloucester, Murphy v. (105 Mass. 470) 34, 35 Gloucester Street Railway, Morey v. (171 Mass. 164) . . .119 TABLE OF CASES. XXV11 Page Goodes v. Boston & Albany Railroad (162 Mass. 287) . . . 107 Goodridge v. Washington Mills Co. (160 Mass. 234) .... 130 Gouin v. Wampanoag Mills (172 Mass. 222) 171 Gould i'. Boston (120 Mass. 300) 39,41 Grace, Welch v. (167 Mass. 590) 147,189 Graham v. Badger (164 Mass. 42) 182 v. Boston (156 Mass. 75) 16 Granger v. Boston & Albany Railroad (146 Mass. 276) . . .116 Great Barrington, Harris . (169 Mass. 271) 14, 23 Great Western Railway, Gibbs v. (12 Q. B. D. 208) .... 126 Green v. Smith (169 Mass. 485) 164, 187, 188 Greenfield, Collins v. (172 Mass. 78) 128 Purple v. (138 Mass. 1) 24,34,53 Gregory v. Adams (14 Gray, 242) . 49 Griffin "v. Overman Wheel Co. (61 Fed. Rep. 568) . . 135, 137 Griffiths v. The Earl of Dudley (9 Q. B. D. 357) 129 Grogan v. Worcester (140 Mass. 227) 60 Groveland, Whitman v. (131 Mass. 553) . . 39, 48, 56, 60, 61 Guild, McCarthy v. (12 Met. 291) 84 v. Shedd (150 Mass. 255) 43 Gulline v. Lowell (144 Mass. 491) 16 Gunn v. Cambridge Railroad Co. (144 Mass. 430 n.) . . . . 119 v. New York, etc. Railroad (171 Mass. 417) 145 Gustafsen v. Washburn & Moen Mfg. Co. (153 Mass. 468) . 139, 192, 194, 199 Hamilton v. Boston (14 Allen, 475) 16,18 Hamilton Mfg. Co., Moody v. (159 Mass. 70) 134 Hamilton Woolen Co., Connelly v. (163 Mass. 156) .... 130 Hampshire, Lyman v. (138 Mass. 74) 58, 59, 66, 196 Lyman v. (140 Mass. 311) 9 Hand, McKay v. (168 Mass. 270) 148 Hanks v. Boston & Albany Railroad (147 Mass. 495) ... 112 Ilanscom v. Boston (141 Mass. 242) 52, 53 Harriman . Boston (114 Mass. 241) 53 Harris v. Great Barrington (169 Mass. 271) 14,23 v. Newbury (128 Mass. 321) 58 v. Quincy (171 Mass. 472) 63 v. Stevens (31 Vt. 79) 96 XXV1H TABLE OF CASES. Page Hart, Ashley v. (147 Mass. 573) 157 Commonwealth v. (11 Gush. 130) 63 Willetts v. ([1892] 2 Q. B. 92) 147 Hartnett, Commonwealth v. (3 Gray, 450) 123 Harwood v. Lowell (4 Gush. 310) 6, 19 v. Oakham (152 Mass. 421) 27 Hathaway, Ledwidge v. (170 Mass. 348) 200 v. Tirikham (148 Mass. 85) 78,83 Hatt v. Nay (144 Mass. 186) 135 Haverhill, Ely v. (110 Mass. 520) 6 Collingill r. (128 Mass. 218) 82 George v. (110 Mass. 506) 10, 70, 71 Raymond v. (168 Mass. 382) 19 Savory v. (132 Mass. 324) 61 Hawks v. Northampton (116 Mass. 420) 49 Hayden v. Attleborough (7 Gray, 338) .... 27, 34, 39, 43 i'. Stone (112 Mass. 346) . . 39,42 Hayes v. Cambridge (136 Mass. 402) 46,73 v. Hyde Park (153 Mass. 514) 20, 22 Hector v. Boston Electric Light Co. (161 Mass 558) . 205, 207 Heland v. Lowell (3 Allen, 407) 11 Hemphill v. Boston (8 Cush. 195) 42 Hennessy v. Boston (161 Mass. 502) .... 139, 170, 171, 182 Heske t\ Samuelson (12 Q. B. D. 30) 144 Hicks v. New York, etc. Railroad (164 Mass. 424) ... 89, 93 Higgins v. Boston (148 Mass. 484) 14 v. North Andover (168 Mass. 251) 65 Higginson, Broderick v. (169 Mass. 482) 84 Hill v. Seekonk (119 Mass. 85) 6 Hilton t;. Boston (171 Mass. 478) 8 Hinckley r. Barnstable (109 Mass. 126) 6 v. Somerset (145 Mass. 326) 52, 74 Hingham Cordage Co., Kenney v. (168 Mass. 278) .... 130 Hixon v. Lowell (13 Gray, 59) 31 Hobbs r. Lowell (19 Pick. 405) 39,42 Hodgson, Raymond v. (161 Mass. 184) 78,79 Hodnett v. Boston & Albany Railroad (156 Mass. 86) 188, 191, 192 Hoey v. Natick (153 Mass. 528) 46 Hogan, Drommie v. (153 Mass. 29) 200, 201 TABLE OF CASES. XXIX Page Holden v. Fitchburg Railroad (129 Mass. 268) . . . 140, 154 Holland v. Lynn & Boston Railroad (144 Mass. 425) . 117,119 Holmes v. Drew (151 Mass. 578) 44, 57 Holyoke, Leonard v. (138 Mass. 78) 66 Tuttle v. (6 Gray, 447) 19 Warner v. (112 Mass. 362) 26,35 Horrigan v. Clarksburg (150 Mass. 218) 8,20 Horton v. Ipswich (12 Cush. 488) 6,45 Hosmer, Beique v. (169 Mass. 541) 130, 148 Houlihan v. Connecticut River Railroad (164 Mass. 555) 139, 191 Howard v. Mendon (117 Mass. 585) 36 v. North Bridgewater (16 Pick. 189) 26 Howet'. Finch (17 Q. B. D. 187) 148 v. Lowell (101 Mass. 99) 52 Hubbard v. Boston & Albany Railroad (159 Mass. 320) . . 113 v. Boston & Albany Railroad (162 Mass. 132) . . . 93, 101 Hubbardston, Carey v. (172 Mass. 106) 26 Stone v. (100 Mass. 49) 14,28 Hudson, Flagg v. (142 Mass. 280) 19,21 v. Marlborough (154 Mass. 218) 35 Hughes v. Lawrence (160 Mass. 474) 59 Hunt v. Salem (121 Mass. 294) 6,16 Hutchins v. Boston (12 Allen, 571 n.) 27 Hyde Park, Fuller v. (162 Mass. 51) 62 Hayes v. (153 Mass. 514) 20, 22 Illingsworth v. Boston Electric Light Co. (161 Mass. 583) . 205 India Mfg. Co., Sullivan v. (113 Mass. 396) 156 Inness v. Boston, etc. Railroad (168 Mass. 433) 96 Ipswich, Horton v. (12 Cush. 488) 6,45 Marshall v. (110 Mass. 522) 27,34 Invin i;. Alley (158 Mass. 249) 138 Jenks v. TVilbraham (11 Gray, 142) 19 Jenney, Gibson v. (15 Mass. 205) 172 Jennings >:. Tisbury (5 Gray, 73) 39, 41 Johanson v. Boston & Maine Railroad (153 Mass. 57) . Ill, 114 Johnson v. Boston Tow-Boat Co. (135 Mass. 209) .... 141 v. Lowell (12 Allen, 572 n ) 27 XXX TABLE OF CASES. Papre Jones v. Andover (9 Pick. 146) 40 v. Andover (10 Allen, 18) 11,12 v. Boston (104 Mass. 75) 30,31 i: Boston & Albany Railroad (157 Mass. 51) .... 199 v. Burford (1 Times Law Rep. 137) 151 r. Waltham (4 Cush. 299) 25, 47, 49, 50 Joy, Stevenson v. (152 Mass. 45) 44 1 57 June v. Boston & Albany Railroad (153 Mass.' 79) . . . 96, 110 Keith v. Easton (2 Allen, 552) 26, 32 Kellogg, Scullane v. (169 Mass. 544) 171 Kelly v. Blackstone (147 Mass. 448) 10 Kenady v. Lawrence (128 Mass. 318) 56, 58, 64 Kennedy, McCann v. (167 Mass. 23) .... 142, 154, 169, 170 Keuney v. Ilingham Cordage Co. (168 Mass. 278) .... 130 Kidder v. Dunstable (7 Gray, 104) 20 v. Dunstable (11 Gray, 342) ... 11,69,70 Kimball v. Boston (1 Allen, 417) 18 Kiugsbury v. Dedham (13 Allen, 186) 32 Knight, Murray v. (156 Mass. 518) 125 Ladd v. New Bedford Railroad (119 Mass. 412) 155 Searles v. (123 Mass. 580) 85 Lally, Sullivan v. (166 Mass. 265) 170 Lamoureux v. New York, etc. Railroad (169 Mass. 338) 108, 113, 115 Lane v. Crombie (12 Pick. 177) 7 Lang, White v. (128 Mass. 598) 78 Larkin v. Boston (128 Mass. 521) 58, 59 Lawless v. Connecticut River Railroad (136 Mass. 1) ... 140 Lawrence, Brown v. (120 Mass. 1) 43 Hughes v. (160 Mass. 474) 59 Kenady v. (128 Mass. 318) 56, 58, 64 v. New Bedford (160 Mass. 227) 49,50 Noonan v. (130 Mass. 161) 60 Tuttle v. (119 Mass. 276) 11 Williams v. (113 Mass. 506 n.) 28 Led widge v. Hathaway (170 Mass. 348) 200 Leffingwell v. Warren (2 Black, 599) 136 TABLE OF CASES. XXxi Page LeForest v. Tolman (117 Mass. 109) 76,80 Lehman v. Van Nostrand (165 Mass. 233) 130 Leicester, Mower v. (9 Mass. 247) 2 Leominster, Davis v. (1 Allen, 182) 4, 47, 49 Leonard v. Holyoke (138 Mass. 78) 66 Leslie, Roswell v. (133 Mass. 589) 85 Lexington, Coggswell v. (4 Gush. 307) 27, 34 Leyden, Williams v. (119 Mass. 237) 21 Liffin v. Beverly (145 Mass. 549) 62 Lincoln, Denison v. (131 Mass. 236) 78,83 Little u. Brockton (123 Mass. 511) 6,21 Littlejohn v. Fitchburg Railroad (148 Mass. 478) . 89, 97, 105, 106 Livermore v. Fitchburg Railroad (163 Mass. 132) . 101, 109, 112 Locke, Elmer v. (135 Mass. 575) 141 Loftus v. North Adams (160 Mass. 161) 9 Logan v. New Bedford (157 Mass. 534) 34 Longtneadow, Davis v. (169 Mass. 551) 19 Look, O'Brien v. (171 Mass. 36) 167,168 Lothrop r. Fitchburg Railroad (150 Mass. 423) . . . .133,186 Lowe v. Clinton (133 Mass. 526) 59 v. Clinton (136 Mass. 24) 26 Lowell, Alger v (3 Allen, 402) 9,21,34,38 Blake v. (143 Mass. 296) 51, 52 v. Boston & Lowell Railroad (23 Pick. 24) 24 Brady v. (3 Cush. 121) 5 Chase v. (149 Mass. 85) 32 Chase v. (151 Mass. 422) 53, 74 Conners v. (158 Mass. 336) 62 Daniels v. (139 Mass. 56) 71 Drake r. (13 Met. 292) 30 Durgin v. (3 Allen, 398) 44 Gulliue v. (144 Mass. 491) 16 Harwood v. (4 Cush. 310) 6,19 Heland v. (3 Allen, 407) 11 Hixon v. (13 Gray, 59) 31 Hobbs v. (19 Pick. 405) 39,42 Howe r. (101 Mass. 99) 52 Johnson v. (12 Allen, 572 n.) . 27 Raymond r. (6 Cush. 524) 24, 70 XXX11 TABLE OF CASES. Page Lowell, Rowell v. (7 Gray, 100) . . . . . . . . . . 20, 22 Shear. (132 Mass. 187) 58,59,64,196 Sheren v. (104 Mass. 24) . . , 71 v. Short (4 Cush. 275) 24 Smith v. (139 Mass. 336) 44 v. Spaulding (4 Cush. 277) 24 Tighe v. (119 Mass. 472) 15 Whitney v. (151 Mass. 212) 53, G5 Winn v. (1 Allen, 177) 10 LudlowMfg. Co., Brady v. (154 Mass. 468) .... 125,142 Eogers v. (144 Mass. 198) 140, 158 Lund i>. Tygnsboro (11 Cush. 563) 19,21 Luther . Worcester (97 Mass. 268) 28 Lyman v. Amherst (107 Mass. 339) 37,38 v. Boston & Albany Railroad (70 Fed. Rep. 409) ... 89 v. Hampshire (138 Mass. 74) 58, 59, 66, 196 v. Hampshire (140 Mass. 311) 9 Lynch v. Allyn (160 Mass. 248) 132, 134, 197 v. Boston & Albany Railroad (159 Mass. 536) . . 137, 138 Lynn, Miles v. (130 Mass. 398) 60 Osgood v. (130 Mass. 335) 75 Sargent v. (138 Mass. 599) . . . 59 West v. (110 Mass. 514) 6,31 Lynn & Boston Railway, Cunningham v. (170 Mass. 298) 130, 167 Holland v. (144 Mass. 425) 117,119 Lyon v. Cambridge (136 Mass. 419) 30 Lyons v. Brookline (119 Mass. 491) 15,20 v. Cambridge (132 Mass. 534) 66, 67 Mack v. Boston & Albany Railroad (164 Mass. 393) .... 57 Macomber v. Taunton (100 Mass. 255) 24, 30 Madden v. Springfield (131 Mass. 441) 56,60 Maguire v. Fitchburg Railroad (146 Mass. 379) 101 Maher v. Boston & Albany Railroad (158 Mass. 36) 139, 187, 188, 192 Mahoneyy. Boston (171 Mass. 427) 128 v. Dore (155 Mass. 513) 134 p. New York, etc. Railroad (160 Mass. 573) 139, 163, 170, 182 Malcolm v. Fuller (152 Mass. 160) . . . 134, 159, 161, 167, 170 TABLE OF CASES. XXX111 Page Maiden & Melrose Railroad, Barrett v. (3 Allen, 101). . . . 82 Mauley v. Boston & Maine Railroad (159 Mass. 493) ... 116 Mapes-Reeve Construction Co., Tremblay v. (169 Mass. 284) . 171 Marble v. Worcester (4 Gray 395) 19 Marden v. Boston & Albany Railroad (159 Mass. 393) . . . 112 Marlborough, Coan v. (164 Mass. 206) 127 Hudson v. (154 Mass. 218) 35 Marshall v. Ipswich (110 Mass. 522) 27,34 Marvin v. New Bedford (158 Mass. 464) 69,70 Matteson v. Strong (159 Mass. 407) 78,79 May v. Boston (150 Mass. 517) 66 v. Princeton (11 Met. 442) 8 r. Whittier Machine Co. (154 Mass. 29) 125 McAuley v. Boston (113 Mass. 503) 28 McCabe v. Cambridge (134 Mass. 484) 59,66 McCann v. Kennedy (167 Mass. 23) .... 142, 154,169, 170 v. Waltham (163 Mass. 344) 128 McCarthy v. Guild (12 Met. 291) 84 McCauley o. Norcross (155 Mass. 584) 160 v. Springfield Street Railway (169 Masa. 301) .... 130 McCreary v. Boston & Maine Railroad (153 Mass. 300) . 104, 111 McDongall v. Boston (134 Mass. 149) 61 v. Salem (110 Mass. 21) 15 McGaffigau v. Boston (149 Mass. 289) 23,53 McGee v. Boston Cordage Co. (139 Mass. 445) 141 McGowan v. Boston (170 Mass. 384) 27 McGriffin v. Palmer's Shipbuilding Co. (10 Q. B. D. 5) . 143, 146 McGuiuness v. Worcester (160 Mass. 272) 7 Mclsaac v. Northampton Electric, etc. Co. (172 Mass. 89) . 130 McKay v. Hand (168 Mass. 270) 148 McKenna v. Boston (131 Mass. 143) 39,42 McKimble v. Boston & Maine Railroad (139 Mass. 542) . 98, 100 v. Boston & Maine Railroad (141 Mass. 463) 99 McLean v. Chemical Paper Co. (165 Mass. 5) 186 McXulty v. Cambridge (130 Mass. 275) 58,60 Md'heer. Scully (163 Mass. 216) 131,153,160,171 Mears v. Boston & Maine Railroad (163 Mass. 150) . 139, 187, 188 Mechanics' Mills, Ryalls r. (150 Mass. 190) . 123,124,195,199 Mellorr. Merchants' Mfg. Co. (150 Mass. 362) . . . 123,133 c XXXIV TABLE OF CASES. Page Menard v. Boston & Maine Railroad (150 Mass. 386) . 113,114 Meiidon, Howard v. (117 Mass. 585) 36 Merchants' Mfg. Co., Mellor v. (150 Mass. 362) . . . 123,133 Merchants', etc. Transportation Co., Clark v. (151 Mass. 352) 124 Merrick Thread Co., Atkins v. (142 Mass. 431) 156 Merrill v. Bradford (110 Mass. 505) 69,70 v. Eastern Railroad (139 Mass. 238) 93, 97 v. Eastern Railroad (139 Mass. 252) 100 v. Wilbraham (11 Gray, 154) 51 Methodist Religious Society, Mulchey v. (125 Mass. 487) . . 201 Metropolitan Railroad, Commonwealth v. (107 Mass. 236) . 90 Woodman v. (149 Mass. 335) 51 Miles v. Lynn (130 Mass. 398) 60 Milford, Day v. (5 Allen, 98) 30 Mitchell v. Clapp (12 Cush.-278) 76 v. Worcester (129 Mass. 525) 66, 67 Montague, Cook v. (115 Mass. 571) 32 Moody v. Hamilton Mfg. Co. (159 Mass. 70) 134 Moranr. Palmer (162 Mass. 196) 26 Morey v. Gloucester Street Railway (171 Mass. 164) . . . 119 Morse v. Boston (109 Mass. 446) 28 v. Stocker (1 Allen, 150) 43 Vegiuan v. (160 Mass. 143) 195 Mower v. Leicester (9 Mass. 247) 2 Mulcahey v. Washburn Car Wheel Co. (145 Mass. 281) . . 188 Mulchey v. Methodist Religious Society (125 Mass. 487) . . 201 Mullen v. Springfield Street Railway (164 Mass. 450) ... 120 Munn v. Reed (4 Allen, 431) 78,79,80 Murdock v. Warwick (4 Gray, 178) 8 Murphy v. Boston & Albany Railroad (167 Mass. 64) . . . 141 v. Gloucester (105 Mass. 470) 34, 35 v. Worcester (159 Mass. 546) 45 Murray v. Fitchburg Railroad (165 Mass. 448) 101 v. Knight (156 Mass. 518) 125 Myers v. Springfield (112 Mass. 489) 37 Nahant, Fogg v. (98 Mass. 578) 14 Nash v. South Hadley (145 Mass. 105) 65,67 Nason r. Boston (14 Allen, 508) 27 TABLE OF CASES. XXXV Page Natick, Adams v. (13 Allen, 429) . 33, 34, 36 Hoeyu. (153 Mass. 528) 46 Nay, Hatt v. (144 Mass. 186) 135 Neal v. Boston (160 Mass. 518) 71 O'Connor v. (153 Mass. 281) 143,167 Needham, Weeks v. (156 Mass. 289) 72, 73 New Bedford, Lawrence v. (160 Mass. 227) . ..... 49,50 Logan v. (157 Mass. 534) 34 Marvin v. (158 Mass. 464) 69, 70 Norton v. (166 Mass. 48) 127 Piercer. (129 Mass. 534) 29 New Bedford Railroad, Laddv. (119 Mass. 412) 155 Newbury, Harris v. (128 Mass. 321) 57 Newburyport, Sawyer v. (157 Mass. 430) 7 New England Railroad, Phelpsr. (172 Mass. 98) 101 New England Telephone, etc. Co., Gardner r. (170 Mass. 156) 167 New Haven & Northampton Co., Copley v. (136 Mass. 6) 114, 116 New Jersey Steel & Iron Co., Daly v. (155 Mass. 1) 190, 191, 194, 199 Newton, Arey v. (148 Mass. 598) 22, 26 Aston v. (134 Mass. 507) 26,39,41,60 v. Worcester (169 Mass. 516) 29 New York & N. E. Railroad, Browne . (158 Mass. 247) . . 186 Clare v. (167 Mass. 39) 141 Clare r. (172 Mass. 211) 90,107,124,125 Davis v. (143 Mass. 301) 80 Gleason v. (159 Mass. 68) 130, 155 Mahoney ?;. (160 Mass. 573) 139, 163, 170, 182 Ramsdell v. (151 Mass. 245) . . 136, 181, 182, 184, 192, 194 New York, N. H. & H. Railroad, Bagley v. (165 Mass. 160) . Ill Coffee v. (155 Mass. 21) 149, 152 Dacey v. (168 Mass. 479) 138 Davis v. (159 Mass. 532) .... 134, 138, 139, 167, 170, 176 Ellsbury v. (172 Mass. 130) 130 Gunn v. (171 Mass. 417) 145 Hicks v. (164 Mass. 424) 89, 93 Lamoureux v. (169 Mass. 338) 108,113,115 Nihillv. (167 Mass. 52) 139 Shear. . 198 XXXVI TABLE OF CASES. Page New York, N. H. & IT. Railroad, Stewart r. (170 Mass. 430) . Ill Sullivan v. (154 Mass. 524) 110,116 Tumaltyv. (170 Mass. 164) 101 Wallace v. (165 Mass. 236) 101 Young v. (171 Mass. 33) 95, 97 New York, P. & B. Railroad, Clark v. (160 Mass. 39) 106, 127, 184, 190 Engel v. (160 Mass. 260) 150,151,153 Nihill v. New York, etc. Railroad (167 Mass. 52) 139 Noonan v. Lawrence (130 Mass. 161) 60 Norcross, McCauley v. (155 Mass. 584) 160 Norman Paper Co., Thompson v. (169 Mass. 416) . . 130,142 North Adams, Loftus v. (160 Mass. 161) 9 Northampton, Dietrich v. (138 Mass. 14) 18 Haw ksv. (116 Mass. 420) 49 Northampton Electric, etc. Co., Mclsaac v. (172 Mass. 89) . 130 North Audover, Bodwell v. (1 10 Mass. 511 n.) 45 Higgins v. (168 Mass. 251) 65 Northbridge, Titus v. (97 Mass. 258) 13 North Bridgewater, Howard v. (16 Pick. 189) 26 Northfield, Reed v. (13 Pick. 94) 10, 53 Sawyer v. (7 Cush. 490) 47 Norton v. Eastern Railroad (113 Mass. 366) 110 t?. New Bedford (166 Mass. 48) 127 Tisdale v. (8 Met. 388) 19 Norwood, Flanders v. (141 Mass. 17) 25, 45 v. Somerville (159 Mass. 105) 10, 36 Norwood Engineering Co., Flaherty v. (172 Mass. 134) ... 137 Noyes v. Gardner (147 Mass. 505) 4, 53 Oakham, Harwood v. (152 Mass. 421) 27 O'Brien v. Look (171 Mass. 36) 167, 168 v. Rideout (161 Mass. 170) 167,170 v. Staples Coal Co. (165 Mass. 435) 130 O'Connor v. Neal (153 Mass. 281) 143,167 v. Whittall (169 Mass. 563) 130, 143 O'Donnellw. Pollock (170 Mass. 441)' 81,82 O'Keefe v. Brownell (156 Mass. 131) 126,144,192 Old Colony Railroad, Brady v. (162 Mass. 408) 101 TABLE OF CASES. XXX Vli Page Old Colony Railroad, Buckley v. (161 Mass. 26) ..... 99 Chisholm v. (159 Mass. 3) 93 Dacey v. (153 Mass. 112) 106,127,178,190 Debbins v. (154 Mass. 402) 116 Dickerman v. (157 Mass. 52) 199 Donahoe v. (153 Mass. 356) 176, 177, 196 Foss v. (170 Mass. 168) 140 Perry v. (164 Mass. 296) 171,180 Steffe v. (156 Mass. 262) 139, 174, 175, 198 Sullivan v. (153 Mass. 118) 139 Trask v. (156 Mass. 298) 150, 151 Tyler r. (157 Mass. 336) . 101 Tyndale v. (156 Mass. 503) 138, 139 O'Leary, O'Neilr. (164 Mass. 387) 165,167 Olson ;. Worcester (142 Mass. 536) 54, 74 O'Maley v. South Boston Gas Light Co. (158 Mass. 135) 126, 129, 130, 131, 143, 155 O'Neil v. O'Leary (164 Mass. 387) 165, 167 Orange, Puffer v. (122 Mass. 389) 33,35 Osgood v. Lynn (130 Mass. 335) 75 Overman Wheel Co., Griffin v. (61 Fed. Rep. 568) . . 135, 137 Paine v. Brockton (138 Mass. 564) 44 Palmer v. Andover (2 Cush. 600) 7, 22 Moran t;. (162 Mass. 196) 26 Sanders v. (154 Mass. 475) 46,73 Palmer's Shipbuilding Co., McGriffin v. (10 Q. B. D. 5) 143, 146 Parker, Galvin v. (154 Mass. 346) 77, 81 p. Springfield (147 Mass. 391) 10 Parsons, Boulester ?. (161 Mass. 182) 78,79 Pearson Cordage Co., Ross v. (164 Mass. 257) .... 143, 155 Peaslee v. Fitchburg Railroad (152 Mass. 155) 106 Pelham, Aldrich v. (1 Gray, 510) 69, 70 Blair u. (118 Mass. 420) 69 Perkins v. Boston & Albany Railroad (90 Fed. Rep. 321) . . 90 Perry r. Old Colony Railroad (164 Mass. 296) . . . . 171, 180 Petersham, Brooks v. (16 Gray, 181) 7,71 Pettee Machine Works, Foley v. (149 Mass. 294) 195 Pettingell i-. Chelsea (161 Mass. 368) 128,182 XXXV111 TABLE OP CASES. Page Phelps v. New England Railroad (172 Mass. 98) 101 Pierce v. New Bedford (1*29 Mass. 534) 29 Popplewell v. (10 Cush. 509) 77 Pinkham v. Topsfield (104 Mass. 78) 27 Plumley v. Birge (124 Mass. 57) 78,79 Dolphin?;. (167 Mass. 167) 147 Pollard v. Woburn (104 Mass. 84) 6,49 Pollock, O'Donnellt'. (170 Mass. 441) 81,82 v. Eastern Railroad (124 Mass. 158) 110 Pomeroy v. Westfield (154 Mass. 462) 13, 21 Popplewell v. Pierce (10 Cush. 509) 77 Porter, Stoughton v. (13 Allen, 191) 24 Post v. Boston (141 Mass. 189) 54,73 Powers v. Boston (154 Mass. 60) 23 v. Fall River (168 Mass. 60) 132,139 Pratt v. Amherst (140 Mass. 167) 22,23,24,36 v. Weymouth (147 Mass. 245) 20, 30, 32 Prendible v. Connecticut River Mfg. Co. (160 Mass. 131) 149, 167 Prentissv. Boston (112 Mass. 43) 49,51 Prescott v. Eastern Railroad (113 Mass. 370 n.) ., ... 110 Pressey v. Wirth (3 Allen, 191) 77,86 Princeton, May v. (11 Met. 442) 8 Provincetown, Ghenn v. (105 Mass. 313) 23 Snow v. (120 Mass. 580) 6 Puffer v. Orange (122 Mass. 389) 33,35 Purple U.Greenfield (138 Mass. 1) 24,34,53 Quartermain, Thomas v. (18 Q. B. D. 685) 133 Quincy, Harris v. (171 Mass. 472) 63 Ramsdell v. New York, etc. Railroad (151 Mass. 245) . 136, 181, 182, 184, 192, 194 Randolph, Bigelow v. (14 Gray, 541) . . . 3 Rooney v. (128 Mass. 580) 45, 46, 73 Raymond B. Haverhill (168 Mass. 382) 19 v. Hodgson (161 Mass. 184) 78, 79 v. Lowell (6 Cush. 524) 24, 70 Reed v. Boston & Albany Railroad (164 Mass. 129) ... 182 TABLE OF CASES. XXXIX Page Reed, Munnv. (4 Allen, 431) 78, 79, 80 v. Northfield (13 Pick. 94) 10,53 Regan r. Donovan (159 Mass. 1) 151 Reynolds v. Barnard (168 Mass. 226) 148, 149, 166 Richards v. Enfield (13 Gray, 344) 20 Richardson r. Boston (156 Mass. 145) 33 Rideout, O'Brien v. (161 Mass. 170) 167,170 Riou v. Rockport Granite Co. (171 Mass. 162) . . . 167,168 Roach v. Somerville (131 Mass. 189) 64 Roberts v. Douglas (140 Mass. 129) 59,60 Rochefort v. Attleborough (154 Mass. 140) 54 Rockport, Babson v. (101 Mass. 93) 15, 20 Rockport Granite Co., Riou v. (171 Mass. 162) . . . 167,168 Rogers v. Ludlow Mfg. Co. (144 Mass. 198) .... 140, 158 Rood, Whitcomb v. (20 Vt. 49) 207 Roouey v. Randolph (128 Mass. 580) 45,46,73 Roseback v. JEtna. Mills (158 Mass. 379) 161,167 Ross v. Pearson Cordage Co. (164 Mass. 257) .... 143, 155 Roswell v. Leslie (133 Mass. 589) 85 Rouse v. Somerville (130 Mass. 361) 4 Rowell v. Lowell (7 Gray, 100) 20, 22 Roxbury, Barber v. (11 Allen, 318) 22,29 Gilbert v. (100 Mass. 185) 27 Russell, Tinker v. (14 Pick. 279) 51 Rutland, Bigelow v. (4 Cush. 247) 10 Ryalls v. Mechanics' Mills (150 Mass. 190) . . 123, 124, 195, 199 Salem, Dalton v. (131 Mass. 551) 60 Dalton v. (136 Mass. 278) 58 Dalton v. (139 Mass. 91) 64 Hunt v. (121 Mass. 294) 6,16 McDougall v. (110 Mass. 21) 15 Shallow r. (136 Mass. 136) 59 Sparhawk v. (1 Allen, 30) 30, 33, 34 Stamen v. (145 Mass. 476) 51 Stickney v. (3 Allen, 374) 16,17,38 Samuelson, Heske v. (12 Q. B. D. 30) 144 Sanders v. Palmer (154 Mass. 475) 46,73 Sanford, Commonwealth v. (12 Gray, 174) 102 xl TABLE OF CASES. Page Sargent v. Lynn (138 Mass. 599) 59 Saunders v. Boston (167 Mass. 595) 66 Savory v. Haverhill (132 Mass. 324) 61 Sawyer v. Newburyport (157 Mass. 430) 7 v. Northfield (7 Cush. 490) 47 Scaulan v. Boston (140 Mass. 84) 4 Scannal v. Cambridge (163 Mass. 91) 34,35 Schoonmaker v. Wilbraham (110 Mass. 134) 6,69 Scituate, Damon v. (119 Mass. 66) 11 Scullane v. Kellogg (169 Mass. 544) 171 Scully, McPhee i: (163 Mass. 216) .... 131,153,160,171 Seaconnet Mills, Gagnon v. (165 Mass. 221) 170 Searles v. Ladd (123 Mass. 580) 85 Sears v. Dennis (105 Mass. 310) 21 Seekonk, Hill v. (119 Mass. 85) 6 Shallow v. Salem (136 Mass. 136) 59 Sharon, Carberry v. (166 Mass. 32) 62, 65 Shea*;. Boston & Maine Railroad (154 Mass. 31) . . . 139,186 v. Lowell (132 Mass. 187) 58,59,64,196 v. New York, etc. Railroad 1 98 v. Wellington (163 Mass. 364) 147,163,169 Shearer, Buddington v. (20 Pick. 477) 81,84,86 Shedd, Guild?;. (150 Mass. 255) 43 Shepard v. Boston & Maine Railroad (158 Mass. 174) ... 139 Shepardson v. Colerain (13 Met. 55) 20 Shepherds Chelsea (4 Allen, 113) 20,29 Sheren v. Lowell (104 Mass. 24) 71 Sherman i?. Favour (1 Allen, 191) 77,82,83,84 Short, Lowell v. (4 Cash. 275) 24 Smith v. Baker ([1891] A. C. 325) 133,145 v. Conway (121 Mass. 216) 11 Dean v. (169 Mass. 569) 171 v. Gardner (11 Gray, 418) 11 Green v. (169 Mass. 485) 164,187,188 v. Lowell (139 Mass. 336) 44 v. Smith (2 Pick. 621) 7 v. Wakefield (105 Mass. 473) 25,40 v. Wendell (7 Cush. 498) 26 Smith Iron Co., Allen v. (160 Mass. 557) 145,155 TABLE OF CASES. xll Page Snow v. Adams (1 Cush. 443) . 20, 22, 24, 26 v. Pro vincetown (120 Mass. 580) 6 Somerset, Hinckley v. (145 Mass. .326) 52,74 Somerville, Brooks v. (106 Mass. 271) 23,51,52 Norwood v. (159 Mass. 105) 10,36 Roach v. (131 Mass. 189) 64 Rouse v. (130 Mass. 361) 4 South Boston Gas Light Co., O'Maley v. (158 Mass. 135) 126, 129, 130, 131, 143, 155 South Boston Iron Co., Spicer r. (138 Mass. 426) 155 Southbridge, Whitford v. (119 Mass. 564) 20,44 South Hadley, Bliss v. (145 Mass. 91) 16 Nash v. (145 Mass. 105) 65,67 Sparhawk v. Salem (1 Allen, 30) 30,33,34 Spauldiug, Lowell v. (4 Cush. 277) . . . . 24 Spellman u. Chicopee (131 Mass. 443) 27, 58 Spicer v. South Boston Iron Co. (138 Mass. 426) 155 Spooner v. Freetown (139 Mass. 235) 60,72 Springfield, Barton v. (110 Mass. 131) 10 Fleming v. (154 Mass. 520) 54 Madden v. (131 Mass. 441) 56,60 Myers v. (112 Mass. 489) 37 Parker v. (147 Mass. 391) 10 Stautonv. (12 Allen, 566) 27 Springfield Street Railway, McCauley v. (169 Mass. 301) . . 130 Mullen v. (164 Mass. 450) 120 Sprow v. Boston & Albany Railroad (163 Mass. 330) . . . Ill Stanton v. Salem (145 Mass. 476) 51 u.Springfield (12 Allen, 566) 27 Staples Coal Co., O'Brien . (165 Mass. 435) 130 Steele v. Boston (128 Mass. 583) 44 Steffe v. Old Colony Railroad (156 Mass. 262) 139, 174, 175, 198 Stevens v. BoxfOrd (10 Allen, 25) 6 Harris v. (31 Vt. 79) 96 Stevenson v. Joy (152 Mass. 45) 44,57 Stewart v. New York, etc. Railroad (170 Mass. 430) . . . . Ill Stickncy v. Salem (3 Allen, 374) 16,17,38 St. Jean v. Boston & Maine Railroad (170 Mass. 213) . . . 140 Stocker, Morse v. (1 Allen, 150) 43 Xlii TABLE OP CASES. Page Stockwell v. Fitch burg (110 Mass. 305) 33,41 Stoddard v. Wiuchester (154 Mass. 149) 54 Stone 0. Attleborough (140 Mass. 328) 33 Hayden v. (112 Mass. 346) 39,42 v. Hubbardston (100 Mass. 49) 14,28 Stoughton v. Porter (13 Allen, 191) 24 Strong, Matteson v. (159 Mass. 497) 78,79 Stuart, Burns v. (168 Mass. 19) 84 Suffolk Mfg. Co., Bowers 0. (4 Cash. 332) 42 Sugden, Floyd v. (134 Mass. 563) 158 Sullivan r. Boston & Albany Railroad (156 Mass. 378) . . . 104 v. Fitchburg Railroad (161 Mass. 125) 130 v. India Mfg. Co. (113 Mass. 396) 156 v. Lally (166 Mass. 265) 170 t>. New Yorlt, etc. Railroad (154 Mass. 524). . . 110, 116 v. Old Colony Railroad (153 Mass. 118) 139 Swansey, Bosworth v. (10 Met. 363) 11 Taggartr. Fall River (170 Mass. 325) 127 Talbotr. Taunton (140 Mass. 552) 22 Tarrant v. Webb (18 C. B. 797) 158 Taunton, Macomber v. (100 Mass. 255) 24,30 Talbot . (140 Mass. 552) 22 Taylor 0. Boston Water Power Co. (12 Gray, 415) . . . 39,41 v. Woburn (130 Mass. 494) 42,43,60,65,67 Tern pleton, Wright v. (132 Mass. 49) 14 Tenantyr. Boston Mfg. Co. (170 Mass. 323) 130 The Earl of Dudley, Griffiths r. (9 Q. B. D. 357) 129 Thomas v. Quartermain (18 Q. B. D. 685) 133 Whittemore v. (153 Mass. 347 ) 82 Thompson v. Boston & Main/3 Railroad (153 Mass. 391) . . 139 v. Bridgewater (7 Pick. 188) 6, 7, 21 . Norman Paper Co. (169 Mass. 416) 130, 142 Thyng v. Fitchburg Railroad (156 Mass. 13) 138, 145, 156, 172, 173, 178, 180 Tighe v. Lowell (119 Mass. 472) 15 Tilton i>. Boston & Albany Railroad (169 Mass. 253) ... 101 Tinker v. Russell (14 Pick. 279) 51 Tinkham, Hathaway v. (148 Mass. 85) 78, 83 TABLE OP CASES. xliii Page Tisbury, Jennings v. (5 Gray, 73) . 39,41 Tisdale v. Bridgewater (167 Mass. 248) 34,35 v. Norton (8 Met. 388) 19 Titus v. Northbridge (97 Mass. 258) 13 Tolman, Le Forest v. (117 Mass. 109) 76,80 Toomey v. Donovan (158 Mass. 232) 124,202 Topsfield, Pinkham v. (104 Mass. 78) 27 Trask v. Old Colony Railroad (156 Mass. 298) . . . .150, 151 Tremblay v. Mapes-Reeve Construction Co. (169 Mass. 284) . 171 Trimble v. Whitier Machine Works (172 Mass. 150) ... 145 Tumalty v. New York, etc. Railroad (170 Mass. 164) ... 101 Tuttle v. Fitchburg Railroad (152 Mass. 42) 114 v. Holyoke (6 Gray, 447) 19 . Lawrence (119 Mass. 276) 11 Tyler v. Old Colony Railroad (157 Mass. 336) 101 Tyndale r. Old Colony Railroad (156 Mass. 503) .... 138, 139 Tyngsborough, Blood v. (103 Mass. 509) 6 Lundv. (11 Cush. 563) 19,21 Upton, Duffy v. (113 Mass. 544) 182 Van Nostrand, Lehman v. (165 Mass. 233) 130 Veale v. Boston (135 Mass. 187) 39, 41 Veginan v. Morse (160 Mass. 143) 195 Veno t>. Waltham (158 Mass. 279) 62 Vermont & Mass. Railroad, Commonwealth v. (108 Mass. 7) 90, 97, 98 Vinal v. Dorchester (7 Gray, 421) 29, 50 Wakefield, Smith v. (105 Mass. 473) 25, 40 Wallace v. New York, etc. Railroad (165 Mass. 236) ... 101 Walsh v. Boston & Maine Railroad (171 Mass. 52) . 110, 113, 115 Waltham, Clark v. (128 Mass. 567) 44 Connollys (156 Mass. 368) 127,160,203 Dohertyr. (4 Gray, 596) 37 Frost v. (12 Allen, 85) 10 Jones v. (4 Cush. 299) 25,47,49,50 McCann v. (163 Mass. 344) 128 Veno v. (158 Mass. '279) 62 Wormwood v. (144 Mass. 184) 66 xliv TABLE OF CASES. Page Wampanoag Mills, Gouin t;. (172 Mass. 222) 171 Warner v. Holyoke (112 Mass. 362) 26,35 Warren, Leffingwell v. (2 Black, 599) 136 Warwick, Murdock v. (4 Gray, 178) 8 Washburn, Burns v. (160 Mass. 457) 148,169 v. Eastern 32 Washburn & Moen Mfg. Co., Carrigan v. (170 Mass. 79) . . 132 Donahue v. (169 Mass. 574) 130 Gustaf sen v. (153 Mass. 468) 139,192,194,199 Washburn Car Wheel Co., Mulcahey v. (145 Mass. 281) . . 188 Washington Mills Co., Goodridge v. (160 Mass. 234) . . . 130 Waterville, Wood v. (4 Mass. 422) 18 Weare v. Fitchburg (110 Mass. 334) 6,10 Webb, Tarrant v. (18 C. B. 797) 158 Webb Granite, etc. Co., Beauregarde v. (160 Mass. 201) . . 125 Weblinv. Ballard (17 Q. B. D. 122) 182 Webster v. Fitchburg Railroad (161 Mass. 298) . . . 95,96,97 Weeks v. Needham (156 Mass. 289) 72,73 Welch v. Gardner (133 Mass. 529) 59, 67 v. Grace (167 Mass. 590) 147, 189 Wellington, Shear. (163 Mass. 364) 147,163,169 Welsh v. Amesbury (170 Mass. 437) 52, 53 Wendell, Smith v. (7 Cush. 498) 26 West r. Lynn (110 Mass. 514) 6,31 West End Railway, Creamer v. (156 Mass. 320) . . . 120,121 Dobbins v. (168 Mass. 556) 57 Fallen v. (171 Mass. 249) 180 Galbraith v. (165 Mass. 572) 120 Westfield, Pomeroy v. (154 Mass. 462) 13,21 Weston, Dudley t--. (1 Met. 477) 72 Weymouth, Gardner v. (155 Mass. 595) 62 Pratt v.'(U7 Mass. 245) 20,30,32 Wheeler v. Framingham (12 Cush. 287) 72 Whitcomb v. Rood (20 Vt. 49) 207 Whiter Boston (122 Mass. 491) 36 v. Lang (128 Mass. 598) 78 Whitford v. Southbridge (119 Mass. 564) 20,44 Whitier Machine Works, Trimble v. (172 Mass. 150) . . . 145 Whitman v. Groveland (131 Mass. 553) ... 39, 48, 56, 60, 61 TABLE OF CASES. XlV Page Whitney v. Lowell (151 Mass. 212) . . 53, 65 Whittaker v. Bent (167 Mass. 588) 142, 154, 168 v. Boston & Maine Kailroad (7 Gray, 98) Ill Whittall, O'Connor v. (169 Mass. 563) 130,143 Whittemore v. Thomas (153 Mass. 347) 82 Whittier Machine Co., May v. (154 Mass. 29) 125 Wilbraham, Jenksr. (11 Gray, 142) 19 Merrill v. (11 Gray, 154) 51 Schoonmakerr. (110 Mass. 134) 6,69 Willcutt, Carroll v. (163 Mass. 221) 143, 160, 171 Willetts v. Hart ([1892] 2 Q. B. 92) 147 Willey v. Boston Electric Light Co. (168 Mass. 40) . 146, 154, 188 Williams v. Lawrence (113 Mass. 506 n.) 28 u.Leyden (119 Mass. 237) 21 Williamstown, Canning v. ( 1 Cash. 451) 19 Wilmington, Commonwealth v. (105 Mass. 599) 33 Wilson v. Boston (117 Mass. 509) 39,43,47 v. Charlestown (8 Allen, 137) 6, 10, 11, 13 Winchester, Stoddard t-. (154 Mass. 149) 54 Winn v. Lowell (1 Allen, 177) 10 Wirth, Pressey v. (3 Allen, 191) 77,86 Woburu, Eaton v. (127 Mass. 270) 18 Pollard v. (104 Mass. 84) 6,49 Taylor v. (130 Mass. 494) 42,43,60,65,67 Wood v. Waterville (4 Mass. 422) 18 Woodcock v. Worcester (138 Mass. 268) 71 Woodman v. Metropolitan Kailroad (149 Mass. 335) .... 51 Woods v. Boston (121 Mass. 337) 6 Worcester, Billings v. (102 Mass. 329) 25, 27, 45, 53 Daily v. (131 Mass. 432) 35 Drury v. (21 Pick. 44) . . . 39, 40 Edwards v. (172 Mass. 104) 9,72 Grogan v. (140 Mass. 227) 60 Luther v. (97 Mass. 268) 28 Marble v. (4 Gray, 395) 19 McGuinness v. (160 Mass. 272) 7 Mitchell v. (129 Mass. 525) 66, 67 Murphy v. (159 Mass. 546) 45 Newton v. (169 Mass. 516) 29 TABLE OF CASES. Page Worcester, Olson v. (142 Mass. 536) 54,74 Woodcock v. (138 Mass. 268) 71 Wormwood v. Waltham (144 Mass. 184) 66 Wright v. Boston & Maine Railroad (129 Mass. 440) ... 110 v. Templetcm (132 Mass. 49) 14 Young v. Douglas (157 Mass. 383) 60 v. New York, etc. Railroad (171 Mass. 33) .... 95, 97 v. Yarmouth (9 Gray, 386) 50, 204 Zeiglerr. Day (123 Mass. 152) 158 TABLE OF STATUTES. Public Statutes, chapter 52, section 17 1 chapter 52, section 18 2 chapter 52, section 19 54 chapter 52, section 20 62 chapter 52,' section 21 63 chapter 52, section 22 67 chapter 73, section 6 116 chapter 102, section 93 76 chapter 109, section 12 204 chapter 112, section 163 107 D. chapter 112, section 212 87 chapter 112, section 213 107 chapter 161, section 7 75 n. Acts, 1883, chapter 221 205 n. 1883, chapter 243 88 1886, chapter 140 118 1887, chapter 270, title 122 1887, chapter 270, section 1 136 1887, chapter 270, section 1, clause 1 140 1887, chapter 270, section 1, clause 2 158 1887, chapter 270, section 1, clause 3 171 1887, chapter 270, section 2 185 1887, chapter 270, section 3 I 92 1837, chapter 270, section 4 200 1887, chapter 270, section 5 202 1888, chapter 155 193 1890, chapter 173, section 1 107 n. xlviii TABLE OF STATUTES. Page Acts, 1892, chapter 260, section 1 183 1892, chapter 260, section 2 192 1893, chapter 359, section 1 152, n. 3 1894, chapter 389 55 1894, chapter 499 158 1894, chapter 508, section 6 129, n. 2 1896, chapter 540 28 1897, chapter 416 206 1897, chapter 491, section 1 179 1897, chapter 491, section 2 176 1898, chapter 565 207 STATUTORY TORTS IN MASSACHUSETTS. PART I. THE LIABILITY OF MUNICIPAL CORPORATIONS. PUBLIC STATUTES, CHAPTER 52, SECTION 17. If the life of a person is lost by reason of a defect or want of repair of a highway, town way, causeway, or bridge, or for want of suitable rails on such way or bridge, the county, town, or person by law obliged to repair the same shall be liable in damages not exceeding one thousand dollars, to be assessed with reference to the degree of culpability of the count}', town, or person liable, and recovered in an action of tort, commenced within one year from the injury causing the death, by the executor or administrator of the deceased person, for the use of the widow and children of the deceased in equal moieties, or, if there are no children, to the use of the widow, or, if no widow, to the use of the next of kin : provided, that the county, town, or person had previous reasonable notice of the defect or want of repair of such way or bridge. 2 STATUTORY TORTS IN MASSACHUSETTS. SECTION 18. If a person receives or suffers bodily injury, or damage in his property, through a defect or want of repair or of sufficient railing in or upon a highway, town way, causeway, or bridge, which might have been remedied, or which damage or injury might have been prevented by reasonable care and diligence on the part of the county, town, place, or persons by law obliged to repair the same, he may recover, in the manner hereinafter provided, of the said county, town, place, or persons, the amount of damage sus- tained thereby, if such county, town, place, or per- sons had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence on their part; but no such damage shall be recovered by a person whose carriage and the load thereon exceed the weight of six tons. 1. Source of the Liability. It was adjudged by the full court, in a case decided near the beginning of the present century, that towns l were not liable at common law to a private action for injuries caused by reason of a defect or want of repair in their highways. 2 Whatever liability 1 For the sake of convenience the word " town " only is us*ed throughout these sections in referring to municipal corporations, whether in the particular case such corporation was a " county, town, or place." 2 Mower v. Inhabitants of Leicester, 9 Mass. 247 (1812). The term " highway " is used in these sections as the general name for all those classes of public ways that come within the terms of the statute. THE LIABILITY OF MUNICIPAL CORPORATIONS. 3 rests upon them in such cases is, therefore, purely statutory. 1 At a very early period the legislature began the policy, which has since been consistently followed, of imposing upon towns the duty of keeping the public ways within their borders in such a state of repair as to make them reasonably safe and conven- ient for travellers at all seasons. 2 The liability to respond in damages for injuries caused by de- fects in a highway grew out of this statutory duty having created the duty, the legislature foresaw also the necessity of making some provision to en- force its performance, and as an effective means toward this end it adopted the expedient, provided for in the above sections, of making the towns directly responsible to the person injured by reason of a failure to keep the highways in proper repair, or to his legal representatives in case of the death 1 " This rule of law, however, is of limited application. It is applied, iu case of towns, only to the neglect or omission of a- town to perform those duties which are imposed on all towns, with- out their corporate assent, and exclusively for public purposes ; and not to the neglect of those obligations which a town incurs, when a special duty is imposed on it, with its consent, express or implied, or a special authority is conferred on it, at its request. In the lat- ter cases, a town is subject to the same liabilities, for the neglect of those special duties, to which private corporations would be, if the same duties were imposed or the same authority were conferred on them including their liability for the wrongful neglect as well as the wrongful acts of their officers and agents." Per Mr. Justice Metcalf in Bigelow v. Randolph, 14 Gray, 541, 543 (1860). 2 The provisions upon this subject at present in force are con- tained in Pub. Sts., ch. 52, a. I. 4 STATUTORY TORTS IN MASSACHUSETTS. of a person so injured, in all cases where other special provision was not made. 1 2. Extent of the Liability. Since it is created entirely by statute and is based upon a duty im- posed by statute, the general limitations of the liability may be, at least roughly, defined. On the one hand, it cannot be broadened by any agreement of the town, or of its officers, beyond the terms of the statute itself. Thus, a town cannot, by con- tracting to repair a portion of a highway that it is not bound by law to keep in repair, be made liable to a person who is injured by reason of a defect in such portion of the way. 2 And, on the other hand, the liability cannot be narrowed by implication : only some special statu- tory provision can have such an effect. Thus, although the defect that caused the injury is within the location of a railroad, the town is still liable, 3 in the absence of some special statutory provision that relieves it from the obligation to keep such portion of its highway in repair. 4 It follows, therefore, that the statutory duty to repair furnishes, not alone the basis, but as well the measure, of this liability. It is, then, in a 1 For the history of the development of the statutes creating this liability, see Appendix B. See also Scanlan v. Boston, 140 Mass. 84 (1885). 2 Rouse v. Somerville, 130 Mass. 361 (1881). And see also Gay v. Cambridge, 128 Mass. 387 (1880). 3 Davis i;. Leominster, 1 Allen, 182 (1861) ; Noyes v. Gardner, 147 Mass. 505, 508 (1888). * Scanlan v. Boston, 140 Mass. 84 (1885). THE LIABILITY OP MUNICIPAL CORPORATIONS. 5 word, not greater, nor less, but simply commen- surate with the duty to keep the highways in re- pair : the duty to keep them in such repair that they may be " reasonably safe and convenient for travellers at all seasons of the year." * 3. Construction of the Statute. The provi- sions of these sections of the statute are, in nature and effect, a species of penal legislation impos- ing a penalty upon municipal corporations for the neglect of a public duty. It is considered by the court, therefore, that the legislature intended to put no greater burden upon them than the plain meaning of the language used indicates. In other words, the statute is construed strictly in favor of the defendant. It follows that all the conditions which the terms of the act impose must be strictly fulfilled before an action can be maintained. Thus where the statute requires notice of the accident to be given within a certain number of days, a plaintiff who gives it after the time fixed has elapsed cannot maintain his action, even though the town should waive a strict compliance with the provision. 2 And again, where the statute gives an action to a person injured by a defect that has existed for twenty-four hours, a person injured by a defect that has existed for a less time cannot maintain an action. 8 1 See opinion of Chief Justice Bigelow in Blodgett v. Boston, 8 Alien, 237, 238 (1864). 2 Gay v. Cambridge, 128 Mass. 387 (1880). 8 Brady v. Lowell, 3 Cash. 121 (1849). 6 STATUTORY TORTS IN MASSACHUSETTS. Moreover a plaintiff cannot sue for any other cause of action than that expressly set out in the act, viz., for death, or for injury to person or property. The statute cannot, therefore, he ex- tended by construction so as to give an action to a husband for the loss of services of his wife who was injured by a defect in the highway, or for the medical or other expenses incurred in her cure. 1 4. Action for Death and Personal Injury Inde- pendent. The right of action given by section seventeen of the statute is entirely independent of the right of action given by section eighteen. An action under each section may, therefore, proceed at the same time, on independent grounds, and for different purposes. 2 5. Doctrine of Contributory Negligence. The common-law doctrine of contributory negligence applies also to actions based upon this statute. 3 1 Harwood v. Lowell, 4 Cush. 310 (1849). 2 Bowes v. Boston, 155 Mass. 344, 349 (1892). 8 Little v. Brockton, 123 Mass. 511 (1878). Woods v. Boston, 121 Mass. 337 (1876). Hunt v. Salem, 121 Mass. 294 (1876). Snow r. Provincetown, 120 Mass. 580 (1876). Hill v. Seekonk, 119 Mass. 85 (1875). Weare v. Fitchburg, 110 Mass. 334, 339 (1872). West v. Lynn, 110 Mass. 514,519 (1872). Schoonmakcr v. Wilbraham, 110 Mass. 134 (1872). Hinckley v. Barnstable, 109 Mass. 126 (1872). Britton v. Cummington, 107 Mass. 347 (1871). Pollard v. Woburn, 104 Mass. 84, 87 (1870). Blood v. Tyngs- borough, 103 Mass. 509 (1870). Oilman v. Deerfield, 15 Gray, 577 (1860). Stevens v. Boxford, 10 Allen, 25 (1865). Wilson v. Charlestown, 8 Allen, 137 (1864). Horton v. Ipswich, 12 Cush. 488 (1853). Ely v. Haverhill, 110 Mass. 520 (1872). Adams v. Carlisle, 21 Pick. 146 (1838). Thompson v. Bridgewater, 7 Pick. 188 (1828). THE LIABILITY OF MUNICIPAL CORPORATIONS. 7 If therefore the plaintiff was negligent and such negligence contributed in any degree to his injury, he is not entitled to recover, even though the high- way was out of repair and that want of repair also contributed to the injury. And in accordance with the rule as to the burden of proof that is followed by the Massachusetts court, 1 the plaintiff must, in order to recover, satisfy the jury that he was at the time of the accident in the exercise of due care. 2 The standard of care is the same under the statute as at common law, the conduct of the ordinarily intelligent and prudent man under like circumstances. 3 This does not require the traveller to give all his attention to the highway over which he is passing, and to look far ahead for defects or obstructions : he has a right to presume that such things do not exist. 4 But he must use ordinary 1 See Lane v. Crombie, 12 Pick. 177 (1831). 2 Sawyer r. Newburyport, 157 Mass. 430 (1892). At the time of the accident means both before and after its commencement. A plaintiff cannot in the exercise of due care " abandon herself to needless alarm or give up all proper control of the horse, in con- sequence of the peril to which she was exposed by the negligence of the defendants in omitting to keep their road in suitable repair. She was still bound to use such care as a person of ordinary pru- dence and discretion would exercise if placed in similar circum- stances and exposed to a like danger, making due allowance for the alarm into which she and her companion were thrown by the occurrence of the accident." Chief Justice Bigelow in Brooks c. Petersham, 16 Gray, 181, 184 (1860). 3 Smith v. Smith, 2 Pick. 621 (1824). Lane v. Crombie, 12 Pick. 177 (1831), as treated in Palmer v. Andover, 2 Cush. 600, 605 (1849). McGuinness t-. Worcester, 160 Mass. 272 (1894). * Thompson v. Bridgewater, 7 Pick. 188 (1828). 8 STATUTORY TORTS IN MASSACHUSETTS. prudence both in the manner of his going and as to the condition of his equipment. Thus if he is injured while driving, it is incumbent upon him to show not alone that he was driving with due care and skill, but also that he was " using a proper horse and vehicle, with a strong and suitable har- ness : " a defect in any of these details due to negligence, 1 which contributes in any degree to his injury, will, of course, as effectually bar a re- covery under these sections as carelessness in his management of the team. 2 The standard of care that is applied to adults, does not, however, apply also to a child. An infant is bound to show simply that he exercised that degree of care and attention which may fairly and reasonably be expected from a child of his age and capacity. 3 The plaintiff must, since the statute of 1851, c. 233, prove as an affirmative proposition the exercise of due care on his part. 4 If, therefore, there is no direct evidence of his due care at the time of the injury, and the circumstances of the accident are not sufficiently disclosed to warrant an inference upon the subject, the plaintiff cannot 1 As to the effect of a defect in vehicle or harness due to pure accident, that contributes to the accident, see 17, post. 2 Murdock v. Warwick, 4 Gray, 178, 180 (1855). Brackenridge v. Fitchburg, 145 Mass. 160 (1887). Horrigan v. Clarksburg, 150 Mass. 218 (1889). 8 Dowd v. Chicopee, 116 Mass. 93, 96 (1874). 4 Hilton v. Boston, 171 Mass. 478 (1898). For the rule before the St. 1851, see May v. Princeton, 11 Met. 442 (1846). THE LIABILITY OP MUNICIPAL CORPORATIONS. 9 recover. 1 But a jury is at liberty to infer that he was travelling with the care ordinarily used under the circumstances, if the evidence shows fully the manner in which the accident happened, and there is no evidence to show negligence on his part at the time of the injury. 2 6. Plaintiff's Physical Condition. If it ap- pears that the plaintiff was intoxicated at the time of the accident, that is an important circum- stance to be considered by the jury upon the question whether or not due care was exercised. The fact of intoxication alone will not debar a plaintiff from maintaining an action under these sections ; it simply makes proper the exaction of a greater degree of care from him as he passes over the highway. 3 He will therefore be entitled to recover, 3 unless it appears that the degree of care which his condition demanded was not used, and that such neglect contributed to his injury. 4 So also the condition of the plaintiff's eyesight may have an important bearing upon this question of due care. If it appears in evidence that his eyesight was poor and weak, the town is entitled to have the jury instructed that he should exercise a greater degree of care in walking upon the 1 Crafts v. Boston, 109 Mass. 519, 521 (1872). 2 Lyman v. Hampshire, 140 Mass. 311,314 (1885). 8 Alger v. Lowell, 3 Allen, 402, 496, poiut 2 (1862). 4 Loftus v. North Adams, 160 Mass. 161 (1893). As to the evidence in such cases, see Edwards v. Worcester, 172 Mass. 104 (1898). 10 STATUTORY TORTS IN MASSACHUSETTS. streets and in avoiding obstructions, than is re- quired of a person with good sight. 1 7. Plaintiff's Knowledge of the Existence of the Defect. It is the general rule that the mere fact that the plaintiff lived near, and knew of, the defect in the highway by which he was injured, is not of itself conclusive of his right to recover against the town under these sections of the stat- ute. This circumstance is to be treated simply as evidence, though doubtless evidence of great weight, tending to show a lack of due care on his part. 2 But this general rule will not be applied if it appears that the plaintiff, knowing that the way was in a very dangerous condition and having it in his power to avoid the danger by going around the defective spot, voluntarily chose to go ahead and to take the chances of being injured. 3 This exception to the rule has been put upon the ground that a plaintiff who pursues such a course is utterly reckless, exercising not the least possible degree 1 Winn v. Lowell, 1 Allen, 177 (1861). For additional cases discussing particular phases of the question of due care on the plaintiff's part, see Bigelow v. Rutland, 4 Cush. 247 (1849). Parker v. Springfield, 147 Mass. 391 (1888). Kelly v. Blackstone, 147 Mass. 448 (1888). 2 Frost v. Waltham, 12 Allen, 85 (1866). Reed v. Northfield, 13 Pick. 94 (1832). Barton v. Springfield, 110 Mass. 131 (1872). Weare v. Fitchburg, 110 Mass. 334 (1872). George v. Haverhill, 110 Mass. 506 (1872). Kelly v. Blackstone, 147 Mass. 448 (1888). Norwood v. Somerville, 159 Mass. 105 (1893). 8 Wilson v. Charlestown, 8 Allen, 137 (1864). Oilman v. Deer- field, 15 Gray, 577 (1860), as explained in Kelly v. Blackstone, 147 Mass. 448 (1888). THE LIABILITY OP MUNICIPAL CORPORATIONS. 11 of care in order to protect himself. 1 When this is the state of the evidence, a ruling of the presid- ing judge that the plaintiff is not entitled to re- cover will be sustained. 2 8. Plaintiff's Violation of Statute Law or City Ordinance ; Pleading. The fact that the plaintiff was at the time of his injury acting in violation of some statute or of some city ordinance, is not alone, as a matter of law, conclusive against his right to recover compensation for the damage from the town. It is simply competent evidence to be submitted to the jury upon the issue of due care ; which leaves it still to be established that such violation of law contributed to the injury. It is, therefore, the settled rule that if the plaintiff's own unlawful act concurs in producing an accident upon the highway, he cannot maintain an action under this act. 3 1 See Oilman v. Deerfield, cited above. And see 9. 2 Wilson v. Charlestown, 8 Allen, 137 (1864). 8 For cases involving a violation of a city ordinance, see Heland v. Lowell, 3 Allen, 407 (1862). Tuttle v. Lawrence, 119 Mass. 276 (1876). The rule is applied in these cases even though it does not appear that the plaintiff had any actual knowledge of the ordinance. Heland v. Lowell, ttbi supra. For cases discussing a violation of the law of the road, Pub. Sts. ch. 93, see Smith v. Con way, 121 Mass. 216 (1878). Damon v. Scituate, 119 Mass. 66 (1875). Kidder v. Dunstable, 11 Gray, 342 (1858). Smith v. Gardner, 11 Gray, 418 (1858). Violations of the statute for the observance of the Lord's day, Pub. Sts. ch. 98, s. 3 (repealed, St. 1887, ch. 391, s. 4), are discussed in Jones v. Andover, 10 Allen, 18 (1865). Bosworth v. Swansey, 10 Met. 363 (1845). In these latter cases, the violation of the statute was held to be 12 STATUTORY TOETS IN MASSACHUSETTS. In this class of cases, evidence of the plaintiff's unlawful act is admissible under an answer con- taining a general denial. " The averment in the declaration of the use of due care, and the denial of it in the answer, properly and distinctly put in issue the legality of the conduct of the party as contributing to the accident or injury which forms the groundwork of the action." l 9. Volenti non fit injuria. The doctrine ex- pressed by this maxim has only a limited appli- cation to actions under these sections of the statute. To make it applicable to such actions, it is not enough to show that the plaintiff was, at the time of the accident, intentionally exposing himself to the possibility of injury by travelling upon a highway which he knew to be defective. 2 It must also be taken into account that travel upon the public ways is a matter not merely of right, but usually also of necessity. What was the con- straint or exigency by which the plaintiff was led to undertake the trip ? Was it such as to affect his appreciation of the nature and degree of the danger arising from the existence of the defect, or to lead him to assume a risk that he would not take under ordinary circumstances ? These con- siderations must largely affect the question whether necessarily a contributing cause to the accident, on the ground that it would not have happened but for the plaintiff's act of travelling on the Lord's day. 1 Jones v. Andover, 1 a Allen, 18, 20 (1865). 2 See 7, ante. THE LIABILITY OP MUNICIPAL CORPORATIONS. 13 the assumption of the risk was voluntary, and whether he was justified in exposing himself to a greater danger than he could prudently incur under ordinary circumstances. 1 But nevertheless, if a plaintiff, when the exigency of the case does not require it, voluntarily chooses to travel over a highway which he knows to be defective, understanding the danger of such a course, he will be held to have assumed the risk, and will be debarred from maintaining an action for damages against the town. 2 10. Plaintiff's Control over his Horse. If the plaintiff is injured while driving along the high- way, whether or not he had control of his horse at the time when he came upon the defect, may constitute an important element in deciding the case. The general rule upon this point is laid down in Titus v. Northbridge 3 in the following language : " When a horse, by reason of fright, disease or viciousness, becomes actually uncontrollable, so that his driver cannot stop him, or direct his course, or exercise or regain control over his move- ments, and in this condition comes upon a defect in the highway, or upon a place which is defective for want of a railing, by which an injury is occa- sioned, the town is not liable for the injury, unless 1 Pomeroy v. "Westfield, 154 Mass. 462 (1891). And see also Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155 (1891). 2 Wilson v. Charlestown, 8 Allen, 137 (1864). Oilman v. Deerfield, 15 Gray, 577 (1860). 8 97 Mass. 258, 265 (1867). 14 STATUTORY TORTS IN MASSACHUSETTS. it appears that it would have occurred if the horse had not been so uncontrollable. But a horse is not to be considered uncontrollable that merely shies or starts, or is momentarily not controlled by his driver." * Therefore, if it appears that the loss of control over the animal was only momentary, and would have been instantly regained had not the wagon come into contact with the defect, the gen- eral rule will not be applied, but the plaintiff will still be entitled to recover. 2 In cases of this kind it is for the jury to say whether, upon all the evidence, there was any loss of control of the horse, and, if there was, whether or not it was merely momentary. 3 And the burden is, of course, upon the plaintiff to satisfy the jury that the horse did not pass beyond his control save 1 Foggr. Nahant, 98 Mass. 578 (1868); s. c. 106 Mass. 278 (1871). Davis v. Dudley, 4 Allen, 557 (1862). Wright v. Temple- ton, 132 Mass. 49, 51 (1882). Higgins v. Boston, 148 Mass. 484, 486 (1889), accord. " The fact that a horse starts or shies at an object in the highway (whether such object is or is not a defect in the way) and is thus brought in contact with a defect, arising either from want of proper repair in the surface of the highway or of sufficient railing at the side of it, is not conclusive against the right of the driver to recover damages against the town for an injury thereby resulting to him ; for the most gentle, intelligent and well-broken horses will sometimes, in spite of all precautions and efforts of their driver, and yet without in any just sense escaping from his control, swerve out of their direct course to avoid a defect, or what seems to them to be a danger, in the road." Per Mr. Justice Gray in Stone v. Hubbardston, 100 Mass. 49, 54 (1868). 2 Britton v. Cummington, 107 Mass. 347 (1871). 8 Harris v. Great Barrington, 169 Mass. 271,275 (1897). THE LIABILITY OF MUNICIPAL CORPORATIONS. 15 for an instant, and that his control would have been immediately regained but for coming in con- tact with the defect. 1 11. The Plaintiff must be a Traveller. Towns are not bound to keep their highways safe and con- venient for all purposes, but only for the purpose of travel. It is incumbent upon the plaintiff, therefore, to show that he was, at the time of his injury, using the highway for the purpose for which the town was obliged to keep it in repair: in the language of the statute, he must show that he was at that time a "traveller." And conse- quently an injury resulting while the plaintiff is making an improper or unauthorized use of the highway imposes no liability upon the town. Thus a person who is using the highway solely as a play- ground, 2 or solely for the convenience of his busi- ness, 3 cannot recover compensation under this statute. The test to be applied in order to determine whether or not the plaintiff was a traveller at the time when he was injured, so far as any test can be laid down, is, whether the acts of the plaintiff at the time of the accident were naturally incident to travel, and were consistent with an intention on his part to continue upon and over the highway for the usual and proper purposes of travel. Thus, a 1 Babson v. Rockport, 101 Mass. 93 (1869). 2 Tighe v. Lowell, 119 Mass. 472 (1876). Lyons v. Brookline, 119 Mass. 491 (1876). Blodgett v. Boston, 8 Allen, 237 (1864). 8 McDougall v. Salem, 110 Mass. 21 (1872). 16 STATUTOEY TORTS IN MASSACHUSETTS. person who is walking along the highway simply for the purpose of exercise, is deemed to be a traveller. 1 And the mere doing of an act in play, as stopping to clasp a post by the side of the path, 2 or playing tag while going along the street, 3 will not deprive the injured person of the character of a traveller. Nor will the mere stopping for a few minutes to watch other boys at play have such an effect ; 4 nor, again, alighting from one's carriage and picking berries for a short time by the side of the road. 5 It is obvious in each of these cases that the acts of the plaintiff could reasonably be re- garded as the natural and ordinary incidents of travel upon the highway, which interrupted his progress only incidentally and for a reasonable time. Whether or not the plaintiff was a traveller is a question of fact for the jury to determine upon all the evidence, 6 unless the character of the plaintiff's acts at the time of his injury make it perfectly clear that he had then ceased to use the highway for the proper purposes of travel, in which 1 Hamilton v. Boston, 14 Allen, 475 (1867). But it has been held that a person injured by the breaking of a defective railing against which he was leaning while engaged in conversation, could not recover under this statute. Stickney v. Salem, 3 Allen, 374 (1862). 2 Gulline v. Lowell, 144 Mass. 491 (1887). 3 Graham v. Boston, 156 Mass. 75 (1892). * Bliss . South Hadley, 145 Mass. 91 (1887). 6 Britton v. Cummington, 107 Mass. 347 (1871). 6 Hunt v. Salem, 121 Mass. 294 (1876). THE LIABILITY OP MUNICIPAL CORPORATIONS. 17 case it becomes the duty of the court to take the cause from the jury. 1 12. Motive for Travelling. If a plaintiff was using a highway for the purpose of travel, it seems that his motive or object for travelling is not material in determining whether he is entitled to recover damages for an injury occasioned by a defect therein. For " the highway is to be kept safe and convenient for all persons having occa- sion to pass over it, while engaged in any of the pursuits or duties of life " whether of business, convenience, or pleasure. 2 13. Mode of coming upon the Defect. If it be not negligent, the manner in which a person comes into contact with a defect in the highway is im- material. Thus where the plaintiff, while pass- ing along the street, saw a loose telephone wire hanging in such a way as to endanger passers by, and stooping to pick it up in order to throw it out of the way, received a severe electrical shock, it was held that the fact that the injury was a result of his intentional act would not defeat his recovery under this statute. 3 " IP A PERSON RECEIVES OR SUFFERS BODILY INJURY. " 14. Who comes -within the Statute. The word " person " as here used is of broad significance, and includes every one, without regard to age or condi- 1 Stickney v. Salem, 3 Allen, 374 (1862). 2 See Blodgett v. Boston, 8 Allen, 237, 240 (1864). ' Bourget v. Cambridge, 156 Mass. 391 (1892). 2 18 STATUTORY TORTS IN MASSACHUSETTS. tion, who may have occasion to pass over the high- way. 1 An unborn infant, between four and five months advanced in foetal life, which was a part of the mother at the time of the accident, does not however come within this rule. 2 It has not been decided whether or not the fact that the relation of master and servant existed between the town and the injured person would debar him from recovering damages under these sections of the statute. 3 It has been held, how- ever, that a police officer was not a servant of the town in any such sense as to prevent him from re- covering compensation for an injury occasioned by a defect in the highway while engaged in the per- formance of the duties of his office. 4 15. Bodily injury. A plaintiff cannot main- tain an action against a town under this statute for the risk and peril alone, the mere mental suffer- ing, that he incurred by reason of an accident due to a defect in the highway. He must show some injury to the person. But if he has suffered a bodily injury, however small, and it was attended by mental suffering, that suffering is a part of the injury to the person within the meaning of the 1 See Hamilton v. Boston, 14 Allen, 475, 483 (1867). 2 Dietrich v. Northampton, 138 Mass. 14 (1884). 3 See Eaton v. Woburn, 127 Mass. 270 (1878). In Wood v. Waterville, 4 Mass. 422 (1808), it was held that a surveyor of high- ways could recover damages from the town for an injury received through a defect of the way within his own district, unless the defect arose from his own neglect. 4 Kimball v. Boston, 1 Allen, 417 (1861). THE LIABILITY OF MUNICIPAL CORPORATIONS. 19 statute, and is to be considered in estimating the damages. 1 " THROUGH A DEFECT OR WAKT OF REPAIR." 16. The Defect must be the Proximate Cause of the injury. The rule is strictly followed that towns are liable in damages only for the direct and immediate consequences occasioned by defects in the highway. 2 An injury suffered in consequence of efforts, made by the traveller with reasonable care, to extricate himself from a position into which he is brought by reason of a defect in the highway, is a direct result of such defect within the meaning of this rule. 3 It necessarily follows from the rule, of course, that if the defect is merely the remote cause of an injury, there can be no recovery under this statute. Thus, if a plaintiff, coming to a defective place in the highway, turns out of the road in order to go around the defec- tive spot and is injured while outside the limits of the highway, he cannot recover damages from the town, although the accident would not have hap- pened but for the defect within the way. 4 Nor will it alter the result if the injury in such a case 1 Canning v. Williamstown, 1 Cush. 451 (1848). 2 Harwood v. Lowell, 4 Cush. 310 (1849). Marble v. Worcester, 4 Gray, 395 (1855). Jenks v. Wilbraham, 11 Gray, 142 (1858). Raymond v. Haverhill, 168 Mass. 382 (1897). Davis v. Long- meailow, 169 Mass. 551 (1897). 3 Lund v. Tyngsboro, 11 Cush. 563 (1853). Flagg v. Hudson, 142 Mass. 280 (1886). Tuttle v. Holyoke, 6 Gray, 447 (1856). Davis u. Longmeadow, 169 Mass 551 (1897). * Tisdale W.Norton, 8 Met. 388 (1844). 20 STATUTORY TORTS IN MASSACHUSETTS. occurs within the location of the highway, though outside the part wrought for travel. 1 17. The Defect must be the Sole Cause of the Injury. It is the general rule that the defect in the highway must be, not only the proximate, but as well the sole, cause of the accident. 2 If, there- fore, the wrongful or negligent act of the plaintiff himself, 3 or of a third person, 4 is a concurrent cause of the injury, the plaintiff cannot recover. Cases of this class are, of course, to be distinguished from those where the wrongful or negligent act of a third person creates, or concurs in creating, the defect that occasions the injury, since the rule is well established that towns are liable without regard to the origin of the defect. 5 But, as was said by Mr. Justice Holmes in Hayes v. Hyde Park, 6 " it is because the act is wrongful, including under this head negligence, not because it is a concurring cause, that the defendant es- capes. If the act which concurs with the defect 1 Shepardson v. Colerain, 13 Met. 55 (1847). 2 Shepherd v. Chelsea, 4 Allen, 113 (1862). Kidder v. Dun- stable, 7 Gray, 104 (1856). Babson v. Rockport, 101 Mass. 93 (1869). Rowell v. Lowell, 7 Gray, 100 (1856). Bemis v. Arlington, 114 Mass. 507 (1874). Lyons v. Brookline, 119 Mass. 491 (1876). Whitford v. Southbridge, 119 Mass. 564, 573 (1876). Richards v. Enfield, 13 Gray, 344 (1859). 3 Horrigan v. Clarksburg, 150 Mass. 218 (1889). And see 5, ante. * Pratt v. Weymouth, 147 Mass. 245 (1888). 6 Snow v. Adams, 1 Cush. 443, 446 (1848). Bacon v. Boston, 3 Cush. 174 (1849). And see 19, post. 6 153 Mass. 514,516 (1891). THE LIABILITY OF MUNICIPAL CORPORATIONS. 21 in producing the result complained of is innocent, and is of a kind which the defendant is bound to expect and to provide for, such, for instance, as another man's driving upon the road, the jury may find against the town as well as when a par- ticular state of the weather is a concurrent cause." The innocent intervening act which will not debar the plaintiff from recovering under this statute may be his own act, as where the plaintiff, without fault on his part, 1 had been led into a position rendered dangerous by reason of a defect in the highway, and, exercising due care and prudence, voluntarily leaped from his carriage in an attempt to save himself and was injured thereby ; 2 or it may be the act of a third person, as where the plaintiff was injured by being pushed from the highway, down an unguarded and dangerous de- clivity, by a crowd, the action of the crowd being neither wilful nor negligent. 3 So also the rule has been laid down that where the concurring cause is a pure accident, an event that ordinary prudence could not foresee and guard 1 If the plaintiff gets himself into a dangerous situation through his own want of due care, he must extricate himself at his own risk. " A plaintiff cannot relieve himself from a dangerous position into which his own fault has brought him and hold the town re- sponsible for the result." Little v. Brockton, 123 Mass. 511 (1878). 2 Lund r. Tyngsboro, 11 Cush. 563 (1853). Sears v. Dennis, 105 Mass. 310 (1870). Williams v. Ley den, 119 Mass. 237 (1876). Thompson v. Bridgewater, 7 Pick. 188 (1828). Flagg v. Hudson, 142 Mass. 280 (1886). Pomeroy v. Westfield, 154 Mass. 462 (1891). 8 Alger v. Lowell, 3 Allen, 402, 406 (1862). 22 STATUTORY TORTS IN MASSACHUSETTS. against, the plaintiff will not be debarred from maintaining an action. Thus, where the plaintiff was injured by the co-operation of a defect in the highway and a failure of a part of his carriage and harness, which failure was not attributable to any lack of prudence or foresight on his part, it was held that he could recover from the town. 1 18. What constitutes a Defect. The duty resting upon towns, it is to be remembered, is to keep their highways in such repair as to be safe and convenient for travellers at 'all seasons. In general terms, then, whatever in the state or con- dition of the highway renders travel unsafe or inconvenient is a defect or want of repair in the highway within the meaning of these sections. 2 The state or condition of the way that renders travel dangerous or inconvenient may consist of an obstruction in an otherwise safe road, as logs or lumber extending into the travelled path, or a post or barriers set up in the way; 3 or it may consist of an unfitness of the road itself for or- dinary travel, due to faulty construction, or to ordinary wear, or to any other cause.* But in order to constitute a defect within the 1 Palmer v. Andover, 2 Cush. 600 (1849). See discussion in Rowell i: Lowell, 7 Gray, 100, 102 (1856). Hayes v. Hyde Park, 153 Mass. 514 (1891), accord. 2 See Barber i-. Roxbury, 11 Allen, 318 (1865). 3 Snow v. Adams, 1 Cush, 443, 446 (1848). Pratt v. Amherst, 140 Mass. 167 (1885). Arey v. Newton, 148 Mass. 598 (1889). 4 Talbot v. Taunton, 140 Mass. 552 (1886). Cromarty r. Bos- ton, 127 Mass. 329 (1879). THE LIABILITY OP MUNICIPAL CORPORATIONS. 23 meaning of this clause, it is not necessary that the matter complained of should present such a condition of things as to endanger all modes of public travel upon the highway ; " it is enough that it makes any mode dangerous which the public have a right to use." Thus, a post set in the highway so near to the street-railway tracks as to knock the conductor of a passing car from the running-board while he was collecting fares, was held to be a defect, although it might not render dangerous any other mode of travel. 1 The mere fact that the dangerous condition of the highway was concealed does not make such condition any the less a defect for which the town may be liable. The liability imposed by this statute covers all defective conditions within the travelled path, whether open and obvious or other- wise, provided that they are of such a nature that the town might discover and remedy them by the exercise of reasonable care and diligence. 2 Whether or not the highway is defective, or is safe and convenient for travel, is ordinarily a ques- tion of fact for the jury ; 3 but if the precise posi- tion and the characteristics of the alleged defect or want of repair are not matters of controversy, 1 Powers v. Boston, 154 Mass. 60 (1891). 2 Burt v. Boston, 122 Mass. 223, 226 (1877). McGaffigan t>. Boston, 149 Mass. 289 (1889). And see 37, 43, post. 8 Dowd v. Chicopee, 116 Mass. 93 (1874). Ghenn v. Province- town, 105 Mass. 313 (1870). Brooks v. Somerville, 106 Mass. 271 (1871). Pratt v. Amherst, 140 Mass. 167 (1885). Harris v. Great Barrington, 169 Mass. 271, 275 (1897). 24 STATUTORY TORTS IN MASSACHUSETTS. the court can determine the question as a matter of law. 1 19. The Cause of the Defect. The essence of the liability created by this statute is for not abat- ing a dangerous condition which may exist in the highway. Therefore, what was the cause of that dangerous condition is not material. Indeed, it may be created by the town itself, or by third persons, or by the action of the elements, or by any other conceivable cause, and in each case the town may be liable to any person injured by reason of its existence. 2 1 Raymond v. Lowell, 6 Cush. 524 (1850). Macomber v. Taun- ton, 100 Mass. 255 (1868). ' 2 Pratt v. Amherst, 140 Mass. 167 (1885). Snow r. Adams, 1 Cush. 443 (1848). Cromarty v. Boston, 127 Mass. 329, 331 (1879). And see 41, post. Where a traveller is injured by reason of a defect in a highway that was due to the negligence or misconduct of a third party, while both the town and the third party may be liable, they are not in pari delicto. Lowell v. Boston & Lowell Railroad, 23 Pick. 24, 31 (1834). Therefore, if in such a case a town is compelled to pay damages, it is entitled to recover from such third party the amount so paid, at least to the extent of single damages. Lowell ;. Boston & Lowell Railroad, 23 Pick. 24 (1834). Lowell v. Short, 4 Cush. 275 (1849). Lowell v. Spaulding, 4 Cush. 277 (1849). Stoughton v. Porter, 13 Allen, 191 (1866). But the question whether or not such third party is liable over to the town is not material, so far as the right of the traveller to recover from the town is concerned. Purple v. Greenfield, 138 Mass. 1 (1884). As to the right of the town in such a case to recover the costs of the former action, see Lowell v. Boston & Lowell Railroad, ubi supra. See also Pub. Sts. ch. 112, s. 209. As to the liability over of gas companies, see Pub. Sts. ch. 106, s. 76. And of electric-light companies, see St. 1887, ch. 385, s. 5. THE LIABILITY OP MUNICIPAL CORPORATIONS. 25 Under this rule, the fact alone that the town had no control over the cause that produced the defect, and could not prevent its operation, affords no defence ; l if it might have discovered and remedied the defect by the exercise of reasonable care and diligence, it is still liable. But if it appears that the defective condition was one which the town had neither the power nor the right to remedy, the town is not liable : the liability is only coextensive with the right and duty to repair. 2 Thus, the narrowness and crookedness of a highway, due to the manner in which it was laid out by the County Commissioners, though doubtless a defect, will not render the town liable to a person injured in con- sequence thereof, since it had no right to go out- side of the limits defined by the location in order to make the highway more safe and convenient. 3 20. The Defect must be in the Travelled 4 Part. The statutory duty as to highways does not necessarily require that the town should prepare for travel the whole road, from one boundary to the other. A wrought part that is safe and convenient for ordinary travel satisfies the statu- 1 See Billings v. Worcester, 102 Mass. 329, 332 (1869). 2 Jones v. Waltham, 4 Cush. 299 (1849). Smith v. Wakefield, 105 Mass. 473 (1870). And see Flanders v. Norwood, 141 Mass. I7'(1886). 8 Smith v. Wakefield, 105 Mass. 473 (1870). 4 By the " travelled part " of the road is intended that part which is usually wrought for travel, and not any track which may happen to be made in the road by the passing of vehicles. Clark v. Commonwealth, 4 Pick. 125 (1826). 26 STATUTORY TORTS IN MASSACHUSETTS. tory requirement. It follows, therefore, that a town is liable under tnese sections of the statute, only for injuries resulting in consequence of those defects that exist in that part of the highway which is wrought and used for travel. 1 There are, however, several exceptions to this general rule. Although injured by a defect outside the travelled part, a plaintiff may still be entitled to recover compensation if he can show that the dangerous spot was so near to the wrought part as to render travel thereon dangerous. 2 And so, also, if he can show that the town had become bound to keep such part of its highway in repair, although it had never been wrought for travel, since " a side of a street may be in such form and so used, with the knowledge and acquiescence of a town, as to be a portion of the travelled part of the way, which the town is bound to keep in repair, even though no work has been done upon it to fit it for the use of pedestrians." 3 1 Howard v. North Bridge water, 16 Pick. 189 (1834). Smith v. Wendell, 7 Cush. 498 (1851). Carey v. Hubbardston, 172 Mass. 106 (1898). 2 Snow v. Adams, 1 Cush. 443 (1848). Arey v. Newton, 148 Mass. 598 (1889). In such cases it is usually a question of fact for the jury whether the dangerous place was in such close proximity to the wrought part as to make the use of the way itself unsafe. Warner v. Holyoke, 112 Mass. 362 (1873). The case does not come within this exception to the rule where an object outside the travelled part is dangerous to the traveller only because it causes his horse to take fright. Keith v. Easton, 2 Allen, 552 (1861). 8 Moran v. Palmer, 162 Mass. 196 (1894). Lowe v. Clinton, 136 Mass. 24 (1883). Aston v. Newton, 134 Mass. 507 (1883). THE LIABILITY OP MUNICIPAL CORPORATIONS. 27 And again, the plaintiff may maintain his action if he can show that the limits of the highway were not indicated by any visible objects which would show the course intended for travel, and that the defect which caused the injury, though outside the wrought part, was within the general course and direction of travel. 1 21. Snow and Ice as a Defect. Based upon considerations of climate, the rule was established that the bare fact that a highway, which was properly constructed and of no unusual slope, had become slippery by reason of the existence of a coating of ice which presented a smooth and polished surface, over which it was difficult to pass without being exposed to the danger of a fall, did not constitute a defect for which a town was liable under these sections of the statute. 2 If, however, such smooth coating of ice formed upon the high- way because of the improper construction or of the defective condition of the highway itself, there may be a defect for which the town can be held responsible. 3 1 Coggswell v. Lexington, 4 Cush. 307 (1849). Hayden v. Attleborough, 7 Gray, 338 (1856). Harwood v. Oakham, 152 Mass. 421 (1890). But see Marshall v. Ipswich, 110 Mass. 522 (1872). 2 Stanton v. Springfield, 12 Allen, 566 (1866). Hutchins v. Boston, 12 Allen, 571, n. (1866). Johnson v. Lowell, 12 Allen, 572, n. (1866). Nason v. Boston, 14 Allen, 508 (1867). Gilbert v. Rox- bury, 100 Mass. 185 (1868). Billings v. "Worcester, 102 Mass. 329 (1869). Pinkham v. Topsfield, 104 Mass. 78, 83 (1870). 3 Adams v. Chicopee, 147 Mass. 440 (1888). Spellman v. Chicopee, 131 Mass. 443 (1881). McGowan v. Boston, 170 Mass. 384 (1898). 28 STATUTORY TORTS IN MASSACHUSETTS. It was also the well settled rule that if snow or ice accumulated in ridges, or assumed a rough and uneven condition, or such a shape as to be an obstruction to trave], either by reason of drifting, or of the repeated flowing and freezing of water, or the passing to and fro of travellers, or from any other cause, it was a defect within the meaning of this statute ; and the fact that it was also slippery did not make it the less a defect. 1 The burden imposed upon towns by this con- struction of the highway act was of course heavy, and the legislature in 1896, possibly led by such a consideration, enacted the following provision : STATUTE 1896, CHAPTER 540, SECTION 1. No city or town shall be liable for any injury or damage to person or property hereafter received or suffered in or upon any part of a highway, town way, causeway or bridge, by reason or in consequence of snow or ice thereon, if the place at which the injury or damage was received or suffered was at the time of the ac- cident otherwise reasonably safe and convenient for travellers. 2 This act has been held to mean " that a way shall not be deemed unsafe by reason of sno\v or ice thereon, if it would be reasonably safe and con- 1 Stone v. Hubbardston, 100 Mass. 49 (1868). Luther r. Worcester, 97 Mass. 268 (1867). Morse v. Boston, 109 Mass. 44G (1872). McAuley v. Boston, 113 Mass. 503 (1873). Williams v. Lawrence, 113 Mass. 506 n. (1873). 2 Section 2. This act shall take effect upon its passage. Approved June 9, 1896. THE LIABILITY OF MUNICIPAL CORPORATIONS. 29 venient for travellers but for the presence of snow or ice thereon." 1 22. An Illegal Use of the Highway as a De- fect. The principle is established that " an illegal use of the highway by men, animals, vehicles, en- gines or any other object, while movable and actually being moved by human will and direction, and neither fixed to, nor resting on, nor remaining in one position within the travelled part of the highway," is not a defect or want of repair for which a town is liable. 2 Thus, a derrick rope, which was stretched across the highway and at- tached at either end to objects outside the highway, and which did not remain in one position but was raised and lowered by the workmen in the course of the work, is not a defect in the highway for which a town is liable to a person injured by being brought in contact therewith while it was being raised. 3 And so also a boy coasting in the high- way upon a hand sled does not constitute a defect upon which a plaintiff who is struck and injured by the moving sled can base an action to recover compensation from the town. 4 23. A Failure to light the Highway as a De- fect. If a town has provided a highway that is 1 Newton v. Worcester, 169 Mass. 516, 518 (1897). 2 Barber v. Roxbury, 11 Allen, 318 (1865). Vinal v. Dorches- ter, 7 Gray, 421 (1856). Pierce v. New Bedford, 129 Mass. 534 (1880). Shepherd t;. Chelsea, 4 Allen, 113 (1862). 8 Barber v. Roxbury, 11 Allen, 318 (1865). Pierce v. New Bedford, 129 Mass. 534 (1880). Shepherd v. Chelsea, 4 Allen, 113 (1862). 30 STATUTORY TORTS IN MASSACHUSETTS. properly constructed and protected by railings, so as to be safe and convenient for travel, it has ful- filled its duty to the travelling public. It is under no obligation to furnish light, and consequently the omission to light the highway is not a defect within the meaning of this statute. 1 And the fact that there is a city ordinance requiring that a light should be provided under certain circum- stances will not alter this result. 2 24. Insecure Projections as Defects. Although all the decisions upon this subject are perhaps not easily reconciled, the rule appears to be considered as settled that a structure, erected by an owner of abutting premises over the sidewalk, which is so insecure and defective as to be likely to fall, is a defect in the highway for which a person injured by its fall may recover compensation from the town, provided that such structure can fairly be considered, not as a mere incident of the building to which it is attached, but as in some sense re- lated to, and a part of, the sidewalk itself. 3 The awning cases are the typical exemplifications of this rule. 4 It has been extended, however, so as to in- 1 Lyon v. Cambridge, 136 Mass. 419 (1884). Macomber v. Taunton, 100 Mass. 255 (1868). Sparhawk v. Salem, 1 Allen, 30, 32 (1861). 2 Lyon v. Cambridge, 136 Mass. 419 (1884). 8 Drake v. Lowell, 13 Met. 292 (1847). Day v. Milford, 5 Allen, 98 (1862). Jones v. Boston, 104 Mass. 75 (1870). Pratt v. Weymouth, 147 Mass. 245, 251 (1888), semble. 4 Drake v. Lowell, 13 Met. 292 (1847). Day ?;. Milford, 5 Allen, 98 (1862). THE LIABILITY OP MUNICIPAL COEPORATIONS. 31 elude the case of a temporary transparency, fast- ened at one end to a building and supported at the other end by a pole resting on the sidewalk, which was put up in such an insecure manner as to fall upon and injure the plaintiff. 1 But a sign insecurely hung out over the highway from the abutting prem- ises to which alone it was attached by means of an iron support has been held not to constitute a defect in the way. 2 A similar decision was reached in the case of snow and ice which projected over the sidewalk from the roof of an. adjoining build- ing. 3 The distinction between these latter de- cisions and the awning cases has been stated by Mr. Justice Wells, in Jones v. Boston, 2 to be that "the awning differs from the overhanging sign, or ice, in that it is not a mere incident or attach- ment of the building alone, but is a structure erected with reference, in part at least, to the use of the sidewalk as such. The structure itself, being adapted to the sidewalk, in some meas- ure, as a part of its construction and arrange- ment for use as a sidewalk, a danger from its insecure condition may reasonably be treated as arising from a defective or unsafe condition of the sidewalk." The indications are that the tendency in this class of cases is to restrict, rather than to extend, the field for the application of this rule, and it has 1 West v. Lynn, 110 Mass. 514 (1872). 2 Jones v. Boston, 104 Mass. 75 (1870). 8 Hixon v. Lowell, 13 Gray, 59 (1859). 32 STATUTORY TORTS IN MASSACHUSETTS. been often said that the awning cases express the extreme limit in this direction. 1 25. Objects that cause Horses to take Fright as Defects. An object with which a traveller does not come into contact, does not constitute a defect in the highway within the meaning of these sec- tions of the statute, for the sole reason that it is of such a nature as to cause his horse to take fright. 2 In the application of this rule, it makes no differ- ence whether the object that causes the fright be outside the travelled part, as in Keith v. Easton, 3 or within the travelled part, as in Kingsbury v. Dedham ; 4 nor yet whether the fright is caused from sight, the visible appearance of the object, as in Cook v. Montague, 5 or from sound, as in Bowes v. Boston ; 6 nor again whether the object that causes the fright constitutes in itself an actual defect in the highway, as in Cook v. Charlestown, 7 or does not in itself constitute a defect, as in Cook v. Montague. 5 1 See Pratt v. Weymouth, 147 Mass. 245, 251, 252 (1888). As to shade trees that have been set out along the highway constituting a defect therein by reason of their unsound condition, see Chase v. Lowell, 149 Mass. 85 (1889) ; s. c. 151 Mass. 422 (1890) ; by reason of their location, see Washburn v. Easton, decided Feb. 28, 1899. 2 Cook v. Charlestown, 98 Mass. 80 (1867). Bemis v. Arling- ton, 114 Mass. 507, 509 (1874). Cook v. Montague, 115 Mass. 571 (1874). * 2 Allen, 552 (1861). * 13 Allen, 186 (1866). 6 115 Mass. 571 (1874). 6 155 Mass. 344, 350 (1892). 7 13 Allen, 190, n. (1866); s. c. 98 Mass. 80 (1867). THE LIABILITY OF MUNICIPAL CORPORATIONS. 33 "OR OF SUFFICIENT RAILING." 26. The Duty to erect Railings. The obliga- tion to erect and maintain suitable railings is imposed upon towns solely for the purpose of rendering travel upon the highway itself safe and convenient. 1 A town is not bound, therefore, to put up a railing in order to prevent travellers from straying out of the highway, although there is a dangerous place at some distance from the travelled path which may be reached by straying. 2 Nor again, in order to prevent frightened animals from escaping from the highway ; and the fact that the near location of a railroad may make such an occurrence probable will not alter this result. 3 And a town is under no obligation to anticipate and guard against by railings ordinary dangers that are likely to arise, as the formation of ice upon the adjacent land, which caused the plaintiff who had strayed upon it to fall. 4 As was said in Damon v. Boston : 4 " The danger which requires a railing must be of an unusual character, such as bridges, declivities, excavations, steep banks, or deep water. Spaces adjoining roads, streets, and sidewalks, and unsuitable for travel, are often left 1 Stone v. Attlcborough, 140 Mass. 328 (1885). Common- wealth v. Wilmington, 105 Mass. 599, 601 (1870). Stockwell r. Fitchbnrg, 110 Mass. 305 (1872). Richardson v. Boston, 156 Mass. 145 (1892). 2 Puffer v. Orange, 122 Mass. 389 (1877). Sparhawk v. Salem, 1 Allen, 30 (1861). 8 Adams v. Natick, 13 Allen, 429 (1866). * Damon v. Boston, 149 Mass. 147 (1889). 3 34 STATUTORY TORTS IN MASSACHUSETTS. open in both country and city ; and a town or city is not bound to fence against them, unless their condition is such as to expose travellers to unusual hazard." 27. The Test of the Necessity of a Railing. While it may be difficult to define the exact extent of the obligation to erect railings, by any general proposition, there is a practical test that will materially aid in the determination of any par- ticular case ; viz., whether there is a dangerous object or place so near to the line of travel as to make the use of the highway itself unsafe in the absence of a railing. 1 It becomes thus generally a question of fact for the jury to determine how near to the highway a dangerous place must be, and consequently how great must be the risk of com- ing upon it, in order to render the want of a rail- ing a defect within the meaning of this provision of the statute. 2 If, however, in the view of the evi- dence most favorable to the plaintiff, the danger is so slight that it would be unreasonable to re- quire the town to provide a railing, the court will decide the question as a matter of law. 3 Thus, it 1 Algerv. Lowell, 3 Allen, 402 (1862). Coggswell v. Lexing- ton, 4 Cash. 307 (1849). Hayden v, Attleborough, 7 Gray, 338 (1856). Sparhawk v. Salem, 1 Allen, 30(1861). Adams v. Natick, 13 Allen, 429 (1866). Murphy v. Gloucester, 105 Mass. 470,472 (1870). Marshall v. Ipswich, 110 Mass. 552 (1872). Purple v. Greenfield, 138 Mass. 1 (1884). Logan v. New Bedford, 157 Mass. 534 (1893). Tisdale v. Bridgewater, 167 Mass. 248 (1897). 2 Barnes v. Chicopee, 138 Mass. 67 (1884). 8 Scannal v. Cambridge, 163 Mass. 91, 93 (1895). THE LIABILITY OP MUNICIPAL CORPORATIONS. 35 has been held as a matter of law that a dangerous place was too remote from the travelled path to make the absence of a railing a defect in the high- way where it was thirty-four feet distant ; l where it was twenty-five feet distant ; 2 where it was twenty to thirty feet distant ; 3 where it was seven- teen feet distant. 4 But where the dangerous place was twelve feet distant from the travelled path, it was held that it could not be said as a matter of law that the risk was so small as to make it un- reasonable to require the town to provide a railing. 8 In order to determine whether a dangerous place is in such close proximity to the highway as to render travelling upon it unsafe, " that proximity must be considered with reference to the highway as travelled and used for public travel, rather than as located." 6 But while the proximity of some dangerous object or place is the " essential and invariable ele- ment " in all cases where a railing is required, the circumstances surrounding the particular locality in question must also be taken into consideration. Thus, the character of the intervening ground, the 1 Barnes v. Chicopee, 138 Mass. 67 (1884). 2 Murphy o. Gloucester, 105 Mass. 470 (1870). Hudson v. Marlborough, 154 Mass. 218 (1891). 8 Puffer v. Orange, 122 Mass. 389 (1877). Daily v. Worcester, 131 Mass. 452 (1881). * Scannal v. Cambridge, 163 Mass. 91, 93 (1895). 6 Tisdale v. Bridgewater, 167 Mass. 248 (1897). 6 Barnes v. Chicopee, 138 Mass. 67 (1884). Warner v. Hoi- yoke, 112 Mass. 362 (1873). 36 STATUTORY TORTS IN MASSACHUSETTS. risk of coming upon the dangerous object or place, the degree of danger incurred if one does come upon it, and like practical questions, are all involved in the issue. 1 28. Barriers erected to close a Highway or to guard an Excavation. A town has the right to temporarily close a highway for the purpose of making repairs, but if it does so, it must show, in order to escape liability to a person injured while using or attempting to use such way, that it was in fact closed by suitable and sufficient barriers. 2 Whether the barriers erected by the town were suitable and sufficient under the circumstances to notify the traveller that the highway was closed is usually a question for the jury to decide. 8 The determination of the question may involve several considerations, such as the situation of the high- way ; the modes commonly adopted for closing highways; the traveller's knowledge of such modes ; 4 and similar facts. So also if a town makes, or allows to be made, an excavation within the highway, it is bound to 1 See Adams v. Natick, 13 Allen, 429 (1866). 2 White v. Boston, 122 Mass. 491 (1877). But a town has no right to erect permanent barriers within a highway in order to change the line of travel, and therefore a railing erected for that purpose by the selectmen may constitute a defect for which the town will be liable. Pratt v. Amherst, 140 Mass. 167 (1885). 3 Howard v. Mendon, 117 Mass. 585 (1875). Norwood v. Somerville, 159 Mass. 105 (1893). * See White v. Boston, 122 Mass. 491 (1877). THE LIABILITY OF MUNICIPAL CORPORATIONS. 37 erect such barriers or other safeguards as will render travel upon that part of the highway safe and convenient. If it has done this, it will not be liable to a person injured in consequence of such excavation, even if the barriers were afterwards removed by third persons, unless it further appears that the town knew, or, under the circumstances of the particular case, ought to have known, of such removal. 1 29. The Kind of Railing required. Towns must anticipate and provide for the usual demands of travel upon their highways ; if they have done this, they have fulfilled their whole duty under the statute. In the matter of railings, therefore, they are bound simply to provide such a kind as is " suit- able for the ordinary exigencies of travel upon such a road at such a place." 2 And it follows that if a railing is used for any purpose other than the requirements of ordinary travel, and a person is injured in consequence, he cannot recover damages from the town, even though it also appears that the railing was so defective that it would not have withstood the usual strains of travel. Thus, a 1 Doherty v. Waltham, 4 Gray, 596 (1855). Myers v. Spring- field, 112 Mass. 489 (1873). Where a part of the width of a sidewalk was railed off, and the plaintiff, in order to get around the barriers, attempted to pass upon that part of the street which was wrought and used for car- riages, and was there injured by reason of a defect, it was held that it was a question to be submitted to the jury whether he was justified in so doing. Gerald v. Boston, 108 Mass. 580 (1871). 2 Lyman r. Amherst, 107 Mass. 339, 346 (1871), point 5. 38 STATUTORY TORTS IN MASSACHUSETTS. railing which was not of sufficient strength to sus- tain the weight of a person who purposely leaned against it for support while engaged in conversa- tion, is not insufficient within the meaning of this clause of the statute. 1 The question whether a railing suitable for the ordinary exigencies of travel, if such a railing had been provided by the town, would have prevented an accident which occurs at a place where it is alleged a railing ought to have been maintained, is a question of fact for the jury. 2 30. Pleading. Under a declaration simply alleging a want of repair in a way, the plaintiff may prove that the way was defective by reason of the want of a railing to protect travellers from going down a declivity just outside the limits of the way. 3 "IN OK UPON A HIGHWAT, 4 TOWN WAY, 5 CAUSEWAY, OR BRIDGE." 31. How the Liability may be fixed upon the Town. A plaintiff cannot maintain an action under these sections of the statute by simply show- ing that he was injured by reason of a defect in a 1 Stickney v. Salem, 3 Allen, 374 (1862). 2 Lyman v. Amherst, 107 Mass. 339, 346 (1871), point 5. 8 Alger v. Lowell, 3 Allen, 402, 405 (1862). 4 As to the liability in case of an injury resulting from a defect in a State highway, see St. 1893, ch. 476, s. 13; St. 1894, ch. 497, s. 6. 5 For the distinction between a highway and a town way, see Blackstone v. County Commissioners, 108 Mass. 68 (1871). THE LIABILITY OP MUNICIPAL CORPORATIONS. 39 way ; he must also show that the way where the accident happened was a highway or town way for the defect in which the town was responsible. He must, in other words, prove the legal establishment of the way. This he may do by means of any one of several lines of proof : by showing by the records the due location, construction, and acceptance of the way by the proper authorities, in accordance with the provisions of the statutes ; 1 by showing a general and uninterrupted use of the way by the public, continued for the length of time necessary to establish a prescription ; 2 by showing a dedica- tion of the way to the public by the owner of the soil, and an acceptance of it by the town prior to 1846 ; 3 by showing that the town had made re- pairs upon the way within six years prior to the accident ; 4 by showing an award of commissioners by virtue of which the duty to repair was imposed upon the town. 5 32. Highways established by Statute Mode. Two things done by the proper authorities must 1 Pub. Sts. ch. 49. Bliss v. Deerfield, 13 Pick. 102 (1832), Drury v. Worcester, 21 Pick. 44 (1838). 2 Veale v. Boston, 135 Mass. 187 (1883). Aston v. Newton, 134 Mass. 507 (1883). Gould v. Boston, 120 Mass. 300 (1876). Taylor v. Boston Water Power Company, 12 Gray, 415 (1859). Jennings v. Tisbury, 5 Gray, 73 (1855). 8 Hobba v. Lowell, 19 Pick. 405 (1837). Hayden v. Stone, 112 Mass. 346 (1873). McKenna U.Boston, 131 Mass. 143 (1881). Pnb. Sts. ch. 49, s. 94. 4 Pub. Sts. ch. 52, s. 25. Hayden . Attleborough, 7 Gray, 338 (1856). Wilson v. Boston, 117 Mass. 509 (1875). 5 Whitman v. Groveland, 131 Mass. 553, 557 (1881). 40 STATUTORY TORTS IN MASSACHUSETTS. concur to establish under the general law a high- way for the defects in which a town is liable : first, an adjudication that the way was of common convenience and necessity, and a location of it; and, second, a construction and opening of it to the public for use. 1 Any illegality in either pro- ceeding can be taken advantage of by the town in defence, even though the way has been used and repaired as a highway. 2 After a way has been duly located and constructed by the proper authorities, in accordance with the provisions of the statutes, no formal act of accept- ance is necessary in order to impose the duty and liability of these sections. As was said by Chief Justice Shaw, in Drury v. Worcester : 3 " After a highway has been regularly laid out, by competent authority, a time fixed for the town to complete it, and it is subsequently actually opened to the use of the public, those who have the right to use it, may presume that what was to be done by way of acceptance, has been done, and that it lias become in fact a public highway. . . . When- 1 Pub. Sts. ch. 49. Bliss v. Deerfield, 13 Pick. 102 (1832). Drury v. Worcester, 21 Pick. 44 (1838). And see Bowman v. Boston, 5 Cush. 1 (1849). 2 Jones v. Andover, 9 Pick. 146 (1829). Towns are only bound to keep in repair tbeir highways as located and laid out by the proper authorities ; this duty docs not extend beyond the limits so defined. If, therefore, there are de^ feets in the way due to the location, as narrowness or crookedness, the town is not responsible for them. Smith v. "\Vakefield, 105 Mass. 473 (1870). 8 21 Pick. 44, 49 (1838). THE LIABILITY OF MUNICIPAL CORPORATIONS. 41 ever by positive act or tacit permission, a town suffers a highway to be opened to public use, and to be actually used by the public, the town becomes responsible for its condition." 33. Highways established by Prescription. 1 A constant and uninterrupted use and enjoyment of a way by the public, continued for the requisite number'of years, 2 will establish a highway by pre- scription, on the ground that a user of such a character raises a conclusive presumption that the way was originally laid out and accepted by com- petent authority. 3 Nothing, therefore, except such user need be shown. 4 34. Highways established by Dedication. Two distinct elements are essential to the establish- 1 " Perhaps it would not be too much to say, that a large por- tion of the public ways, whether they be considered public high- ways, or town ways, stand upon no other title but prescription." Chief Justice Shaw in Jennings v. Tisbury, 5 Gray, 73 (1855). In the city of Boston, public footways may exist by prescrip- tion, which the city is bound to keep in repair. Gould v. Boston, 120 Mass. 300 (1876). 2 The time of prescription is now to be considered as fixed at twenty years. Jennings v. Tisbury, 5 Gray, 73 (1855). As to the effect of a relocation of the way upon the running of the twenty years, see Stockwell v. Fitchburg, 110 Mass. 305 (1872). 8 Veale v. Boston, 135 Mass. 187 (1883). Aston V. Newton, 134 Mass. 507 (1883). Commonwealth v. Coupe, 128 Mass. 63 (1880). Taylor v. Boston Water Power Company, 12 Gray 415 (1859). 4 Jennings v. Tisbury, 5 Gray, 73 (1855). The statute of 1846, ch. 203 (Pub. Sts. ch. 49, s. 94), has no ap- plication to ways by prescription : they can be established by this mode as well since as before the passage of that act. Com. v. Coupe, 128 Mass. 63 (1880). 42 STATUTORY TORTS IN MASSACHUSETTS. ment of a highway by dedication : first, an appro- priation of the soil by the owner to the use of the public for a highway ; 1 and, second, an acceptance of it, either express or implied, by the town. 3 These two acts, as soon as done by the respective parties, complete the dedication and establish the way as a highway : no lapse of time is necessary. 3 The intent of the owner of the soil of a road to appropriate it to the use of the public for a high- way must be shown by unequivocal acts or declara- tions. 4 And so also the acquiescence in that appro- priation by the town or by its officers, acting within the scope of their authority, must clearly appear. 5 Mere user by the public, though strong evidence, is not alone sufficient to establish either fact. 4 And since the statute of 1846, ch. 203, 6 the acceptance of the town can only be given by 1 " He who gives his land to the public may prescribe the terms and limitations on which he gives it, and if it be accepted at all, it must be accepted with the limitations, qualifications and restrictions prescribed. ... If it be given for a special and lim- ited use aud purpose, as for a footway, it must be accepted and held for that use only ; or it must fail altogether, and then no public right is established by the gift." Chief Justice Shaw in Hemphill v. Boston, 8 Cush. 195 (1851). If, therefore, a highway is established by dedication for use as a footway, the town is not liable to a person injured while using it for other purposes, s. c. 2 Hobbs v. Lowell, 19 Pick. 405 (1837). Bowers v. Suffolk Manufacturing Company, 4 Cush. 332, 340 (1849). 8 See Taylor v. Woburn, 130 Mass. 494, 500 (1881). * See Hayden v. Stone, 112 Mass. 346 (1873). 6 McKenna v. Boston, 131 Mass. 143 (1881). Bowers v. Suffolk Manufacturing Company, 4 Cush. 332, 340 (1849). 6 Pub. Sts. ch. 49, s. 94. THE LIABILITY OF MUNICIPAL CORPORATIONS. 43 laying out the way in accordance with the mode prescribed by the statutes. 1 35. Evidence of Repairs. By virtue of statute provision, 2 repairs made by a town upon a way within six years before an accident are conclu- sive as to its location. 3 The actual making of re- pairs must be shown, however, in order to have this effect: a vote of the town to make repairs, so long as unexecuted, is not enough. 4 The making of repairs is conclusive only upon the question of the location of the way, and not necessarily upon the question of the responsibility of the town for its defects. Thus, if the liability for defects in a way is imposed by statute upon another, the town cannot be made responsible by showing repairs made by it within six years before the accident. 5 36. The Liability with Reference to Private "Ways. A way that has been appropriated by the owner of the soil to the public use since the pass- age of the statute of 1846, ch. 203, 6 but has not been laid out by the town in accordance with the 1 Guild v. Shedd, 150 Mass. 255 (1889). Morse v. Stocker, 1 Allen, 150, 154 (1861). 2 Pub. Sts. ch. 52, s. 25. " The statute was adopted originally to remedy the difficulty of proving the legal establishment of ways, arising from absence or defects of records thereof." Wilson v. Boston, 117 Mass. 509 (1875). 3 Hayden v. Attleborough, 7 Gray, 338 (1856). Taylor v. Woburn, 130 Mass. 494, 500, 502 (1881). * Brown v. Lawrence, 120 Mass. 1 (1876). 6 Wilson v. Boston, 117 Mass. 509 (1875). 6 Pub. Sts. ch. 49, ss. 94 & ff. 44 STATUTORY TORTS IN MASSACHUSETTS. provisions of that act, imposes no liability upon the town under these sections of the highway act, provided the town has either closed the entrance to such way, or given sufficient notice that it was dangerous. 1 A notice stating that such way is a private way and is dangerous, so posted as to be conspicuous and legible to persons entering thereon, is a sufficient notice to satisfy this rule. 2 "WHICH MIGHT HAVE BEEN REMEDIED, OR WHICH DAMAGE OR INJURY MIGHT HAVE BEEN PREVENTED BY REASONABLE CARE AND DILIGENCE." 3 37. The General Effect of the Provision. Prior to 1877 the fact that the plaintiff was injured by a defect in the highway which had existed for the requisite length of time, was enough to fasten the 1 Smith v. Lowell, 139 Mass. 336 (1885). Paine v. Brockton, 138 Mass. 564 (1885). Durgin v. Lowell, 3 Allen, 398 (1862). 2 Smith v. Lowell, 139 Mass. 336 (1885). As to the liability for an injury resulting from a defect in a private sidewalk, which was laid out and paved continuous with the sidewalk of the street and apparently formed a part of it, see Holmes v. Drew, 151 Mass. 578 (1890). As to the individual liability for a defective coal-hole set in the sidewalk, see Fisher v. Cushing, 134 Mass. 374 (1883). Stevenson v. Joy, 152 Mass. 45 (1890). As to liability for defects in a footpath, 1st, across a common, see Clark v. Waltham, 128 Mass. 567 (1880). Steele v. Boston, 128 Mass. 583 (1880). 2d, by the side of a country road, see Whitford v. Southbridge, 119 Mass. 564 (1876). As to the liability for defects in streets on certain lands under the care and control of the Metropolitan Park Commission, see St. 1898, ch. 455. As to the liability for defects in public alleys in the city of Boston, see St. 1898, ch. 298, s. 2. 8 This provision, it is to be observed, is not incorporated in section seventeen of the statute. THE LIABILITY OF MUNICIPAL CORPORATIONS. 45 liability upon the town, without regard to the ques- tion whether or not its continuance could have been prevented by the exercise of reasonable care. 1 In that year, however, the legislature incorporated 2 the present provision in the highway acts, with the evident intention of relieving towns from this liability in all cases where there was no lack of proper diligence on their part in seeking to remedy the defective condition that caused the injury. 8 The courts hold, therefore, that the effect of this clause is to create a condition precedent, which the plaintiff must satisfy by direct evidence or proper inference. 4 38. "What Evidence is competent under this Provision. Perhaps the most important piece of evidence bearing upon the issue raised by this provision is that relative to the length of time dur- ing which the defect has existed. 5 But it is also competent to put in evidence all facts that have a tendency to show what the town could reasonably be required to do under the existing conditions, in order to keep its highways safe and convenient for 1 Therefore, before this date the fact that the town had used reasonable care in repairing a way constituted no defence, provided the way was not in fact made safe and convenient. Bodwell v. North Andover, 110 Mass. 511, 512 (1872). Billings v. Worcester, 102 Mass. 329, S33 (1867). Horton v. Ipswich, 12 Cash. 488 (1853). 2 St. 1877, ch. 234. 3 See Flanders v. Norwood, 141 Mass. 17 (1886). Rooney v. Randolph, 128 Mass. 580 (1880). 4 Murphy v. Worcester, 159 Mass. 546 (1883). 6 Murphy v. Worcester, 159 Mass. 546, 550 (1883). 46 STATUTORY TORTS IN MASSACHUSETTS. travel. Thus " the length of the roads which it is obliged to maintain, the ease or difficulty of main- taining them, the amount of travel over them, and the amount of assessable property in the town, are all elements to be considered in determining how high a degree of excellence can reasonably be re- quired of a town in the construction and repair of any particular piece of road." l How minutely the parties shall be allowed to go into such collateral issues, is a matter within the discretion of the presiding judge. 2 " ON THE PART OF THE COUNTY, TOWN, PLACE, OR PERSONS." 39. The Use of the Word "Persons." "The mention of persons in the statute, alongside of coun- ties and towns obliged to repair, is easily explained. The outline of our scheme was of ancient date and English origin. In England, while parishes were generally bound to repair highways and bridges, a person might be, ratione tenurce, or otherwise. The language of our act was probably suggested by that of earlier legislation in England. But we cannot say, and probably the Legislature of 1786 could not have said, that there were no cases in the Common- wealth where persons other than counties or towns were bound to keep highways in repair. The words 1 Sanders v. Palmer, 154 Mass. 475 (1891). Rooney v. Ran- dolph, 128 Msss. 580 (1880). Hayes v. Cambridge, 136 Mass. 402 (1884). 2 See Sanders v. Palmer, 154 Mass. 475 (1891). See also on this subject Hoey v. Natick, 153 Mass. 528 (1891). THE LIABILITY OF MUNICIPAL CORPORATIONS. 47 * where other sufficient provision is not made therefor,' in the first section of the statute of 1786, imposing the duty on the inhabitants of towns, sug- gests that there were such cases. Even if there were not, it was a natural precaution to use the words." 1 "BY LAW OBLIGED TO REPAIR THE SAME." 40. The Extent of the Duty to repair. The liability created by these sections of the statute is not an altogether absolute, but is a qualified one. Thus by the terms of this provision towns are responsible for injuries received in consequence of defects in its highways if, and only if, they are obliged by law to repair them. If, therefore, other sufficient provision has been made for keeping a highway safe and convenient for travel, the town is entirely relieved from this liability with respect to it, 2 even though it has assumed and performed the duty of repairing it. 8 But this liability cannot be so limited by mere implication, save in so far as a town is actually deprived of the power to perform its duty." 4 And so also, by the express terms of the statute, 6 1 Mr. Justice Holmes in Fisher v. Gushing, 134 Mass. 374, 375 (1883). 2 Sawyer v. Northfield, 7 Cush. 490, 496, point 2 (1851). Wil- son i7. Boston, 117 Mass. 509, 512 (1875). Carter v. Boston & Providence Railroad, 139 Mass. 525 (1885). Wilson v. Boston, 117 Mass. 509 (1875). 4 Davis v. Leominster, 1 Allen, 182 (1861). Jones v. Waltham, 4 Gush. 299 (1849). 5 Pub. Sts. ch. 52, s. 1. 48 STATUTORY TORTS IN MASSACHUSETTS. towns are only liable for defects in highways that are within their own territorial limits. But the duty to repair a portion of a highway that is out- side of its corporate limits may be imposed upon a town by an award of County Commissioners, in which case the liability of these sections will also attach. 1 Moreover, the obligation to repair, and con- sequently the liability, is also limited by the exi- gencies of travel in the particular locality. " The obligation of these municipal corporations is, not to keep all their ways and bridges in the highest possible state of repair, or so as to afford the utmost convenience to those who have occasion to use them ; but only in such condition that, having in view the common and ordinary occasions for their use, and what may fairly be required for the proper accommodation of the public at large in the various occupations which may from time to time be pursued, each particular way shall be so wrought, prepared and maintained that it may justly be con- sidered, for all the uses and purposes for which it was laid out and designed, to be reasonably safe and convenient. . . . They are not required to make preparations for the safety or convenience of those who undertake to use those ways in an unusual or extraordinary manner, involving peculiar and special peril and danger, whether it be in respect to the kind or character of animals led or driven, or the magnitude or construction of carriages used, 1 Whitman v. Groveland, 131 Mass. 553 (1881). THE LIABILITY OP MUNICIPAL CORPORATIONS. 49 or the bulk or weight of property transported." l Thus whether or not a town is liable for an injury resulting to an elephant from a defect in a high- way over which it was being led depends upon whether the jury find that " an elephant, consid- ered in reference to the time and place when and where, and the manner in which he was driven, was an animal suitable and proper to be driven " upon the highway. 2 41. The Obligation to repair not affected by the Location of Roads operated by other Corporations within the Highway. The fact that a railroad crosses a highway at grade, or that a street rail- way has laid its tracks through the streets, does not of itself relieve a town from its duty to repair, except in so far as it may be actually prevented from performing that duty by the necessary use of the tracks by such corporations. 3 As a general rule, therefore, a town is primarily liable for injuries resulting from defects in that part of a highway which is within the limits of the location of a rail- road, 4 or of a street railway, 6 even though the 1 Per Mr. Justice Merrick in Gregory v. Adams, 14 Gray, 242, (1859), at pages 246 and 248. 2 Gregory v. Adams, 14 Gray, 242 (1859). 3 Davis v. Leominster, 1 Allen, 182 (1861). Jones v. Waltham, 4 Cush. 299 (1849). 4 Pollard v. Woburn, 104 Mass. 84 (1870). Davis v. Leomin- ster, 1 Allen, 182 (1861). 6 Prentiss v. Boston, 112 Mass. 43, 48 (1873). Hawks v. Northampton, 116 Mass. 420 (1875). Bailey v. Boston, 116 Mass. 423, n. (1875). Lawrence v. New Bedford, 160 Mass. 227 (1893). As to the liability of street-railway companies for injuries suf- 4 50 STATUTORY TORTS IN MASSACHUSETTS. defect is caused by the negligence of those corpo- rations themselves. But if the defect is due to matters which the construction and operation of such roads necessarily place it beyond the power of the town to remedy, there is no liability. Thus, if a corporation has been duly authorized to cross a highway at grade, or to construct and operate its road through the streets, " the existence of its tracks properly constructed, and the proper opera- tion of its road, cannot be a defect in the streets for which the town is liable, even though they render the streets dangerous." l In such cases, therefore, the town is entitled to have the jury instructed that although portions of the construction of a street railway may present obstacles to travel and dangers to those using vehicles, yet if such portions are necessary to its operation as a street railway, they are not defects in the highway for which the town is liable. 2 42. The Duty not avoided by Delegation. The duty to make its highways safe and convenient for travel is absolute in its nature, within the limits noted above, 8 and a town is bound at its peril to fered during the construction, alteration, etc., of their railways, see Acts, 1898, ch. 578, s. 11. 1 Lawrence v. New Bedford, 160 Mass. 227 (1893). Jones r. Waltham, 4 Cush. 299 (1849). Vinal v. Dorchester, 7 Gray, 421 (1856). See also Young v. Yarmouth, 9 Gray, 386 (1857), where the same rule was applied to the poles of an electric telegraph company. 2 Fowler v. Gardner, 169 Mass. 505, 509 (1897). 8 See 40, ante. THE LIABILITY OP MUNICIPAL CORPORATIONS. 51 see that it is performed. It cannot, therefore, in any degree escape the liability of these sections by intrusting this duty to third parties, although they may be competent : by so doing it becomes re- sponsible for the negligence, whether momentary or otherwise, of the party so intrusted. 1 " IP SUCH COUNTY, TOWN, PLACE, OR PERSONS HAD REASONABLE NOTICE OF THE DEFECT, OR MIGHT HAVE HAD NOTICE THEREOF BY THE EXERCISE OF PROPER CARE AND DILIGENCE ON THEIR PART. " 2 43. General Effect of the Provision. This clause of the statute does not change the common- law rule as to what constitutes reasonable care and diligence, but simply creates a condition precedent to the right of the plaintiff to recover. 8 As a general rule, therefore, the burden rests upon him to es- tablish the fact that the defect which caused his injury was one of which the town had knowledge, or might, by the exercise of reasonable care and diligence, have had knowledge, in time to have remedied it or to have prevented the injury. 4 But 1 Blessington v. Boston, 153 Mass. 409 (1891). Prentiss v. Boston, 112. Mass. 43, 48 (1873). Brooks v. Somerville. 106 Mass. 271, 274 (1871). Merrill v. Wilbraham, 11 Gray, 154 (1858). See also Woodman v. Metropolitan Railroad, 149 Mass. 335 (1889). If the operations of a corporation constitute a discontinuance of a highway, then the liability of the town ceases. Tinker v. Rus- sell, 14 Pick. 279 (1833). 2 Only the first part of this clause is incorporated in section seventeen of the statute. 8 Blessington v. Boston, 153 Mass. 409, 412 (1891). * Stanton v. Salem, 145 Mass. 476 (1888). Blake v. Lowell, 52 STATUTORY TORTS IN MASSACHUSETTS. if it appears that the defective condition was due to the acts of the town itself or of persons whose acts were constructively its own, the plaintiff need not prove any notice whatsoever. 1 44. Notice to whom. The notice to the town for which provision is here made is a notice to those of its officials whose duty it is to look after municipal affairs. 2 It has been held, therefore, that notice to one or more of the inhabitants of the town, 3 or notice to the janitor of a public school house, 4 was not notice to the town within the meaning of this clause. 45. Actual Notice. Actual notice of a defect in the highway, within the meaning of this pro- vision, is simply knowledge on the part of the proper officers of the town of that condition of things which is alleged to constitute a defect. Whether or not the town officials, knowing the conditions, thought them to constitute a defect, is not material. Knowledge of the defective con- ditions is the only consideration in this regard. 5 143 Mass. 296 (1887). Hanscom v. Boston, 141 Mass. 242 (1886). Welsh v. Amesbury, 170 Mass. 437 (1898). 1 Brooks v. Somerville, 106 Mass. 271 (1871). 2 Donaldson v. Boston, 16 Gray, 508, 511 (1860). Howe v. Lowell, 101 Mass. 99 (1869). Crosby v. Boston, 118 Mass. 71 (1875). Blake v. Lowell, 143 Mass. 296 (1887). Hinckley v. Somer- set, 145 Mass. 326, 337 (1887). 3 Donaldson v. Boston, 16 Gray, 508 (1860). * Foster v. Boston, 127 Mass. 290 (1879). 5 Hinckley v. Somerset, 145 Mass. 326, 336 (1887). Notice of a cause outside of a highway which is likely to pro- duce at some time a defect within that highway, is not notice of THE LIABILITY OP MUNICIPAL CORPORATIONS. 53 46. Constructive Notice. If there is no evi- dence of actual knowledge of the defective con- dition of the highway on the part of the officers of the town, the plaintiff may still maintain his action upon proof that they might have had such knowledge by the exercise of reasonable care and diligence. Any facts relating to the length of time prior to the accident during which the defect had existed, and to the position and publicity of the place where it was located, in short, any circumstances which tend to show its notoriety, are material upon this issue. 1 Evidence as to causes that may be known to be in operation in, or near to, the highway, which are likely to produce a defect therein, may also be important, since in such a case greater diligence may be required of the town officials than under other conditions. " It is reasonable that the of- ficers should keep a more watchful eye over such a way in order to guard against danger. When, the defect itself, if one results therefrom. Billings v. Worcester, 102 Mass. 329 (1869). 1 Bourget v. Cambridge, 159 Mass. 388 (1893). Whitney fc. Lowell, 151 Mass. 212 (1890). Noyes v. Gardner, 147 Mass. 505 (1888). Fortin v. Easthampton, 145 Mass. 196 (1887). Purple v. Greenfield, 138 Mass, 1, 7, point 2 (1884). Donaldson v. Boston, 16 Gray, 508 (1860). Reed v. Northfield, 13 Pick. 94 (1832). And see also Chase v. Lowell, 151 Mass. 422 (1890). As to the effect of this clause where the alleged defect is a loose coal-hole cover, see McGaffigan v. Boston, 149 Mass. 289 (1889). Hanscom v. Boston, 141 Mass. 242 (1886). Harriman v. Boston, 114 Mass. 241 (1873). Welsh v. Amesbury, 170 Mass. 437, 440 (1898). 54 STATUTORY TOETS IN MASSACHUSETTS. therefore, a defect is produced by some known, per- manent cause which would naturally create the de- fect, the existence of such cause may properly be considered by the jury in determining whether the officers of the town or city might have had notice of the defect by the exercise of proper care and diligence." * This rule, however, is limited in its application to cases where the danger to be guarded against is reasonably immanent in point of time. If, therefore, the known causes are likely to produce a defect in the highway only at some time in the remote future, the town cannot be held responsible on the ground of implied notice. 2 SECTION 19. 8 A person so injured shall within ten days thereafter, if such defect or want of repair is caused by or consists of snow or ice, or both, whether wholly or in part, and in all other cases 4 within thirty days thereafter, give to the county, town, place or persons by law obliged to keep said highway, town way, causeway, or bridge in repair, notice of the time, place, and cause of the said injury or damage; and if the said county, town, place, or persons do not pay the amount thereof, he may within two years after the date of said injury or damage bring an action of 1 Chief Justice Morton in Olson v. Worcester, 142 Mass. 536 (1886). Posti>. Boston, 141 Mass. 189 (1886), accord. 2 Rochefort v. Attleborough, 154 Mass. 140 (1891). Stoddard w. Winchester, 154 Mass. 149 (1891); s. c. 157 Mass. 567 (1893). See also Fleming v. Springfield, 154 Mass. 520 (1891). 3 As amended by St. 1888, ch. 114. 4 Provision added by St. 1894, ch. 422, s. 1. THE LIABILITY OF MUNICIPAL CORPORATIONS. 55 tort against said county, town, place, or persons to recover the same. But no notice given under the provisions of this section shall be deemed to be invalid or insufficient solely by reason of any inaccuracy in stating the time, place, or cause of the injury : pro- vided, that it is shown that there was no intention to mislead, and that the party entitled to notice was not in fact misled thereby. 1 > STATUTE 1894, CHAPTER 389. In an action to re- cover for bodily injury, or damage to a person in his property, hereafter sustained, no defendant shall avail himself in defence of such action of any omission to state in the written notice now required by law, the time, place or cause of the injury or damage, unless, within five days after the receipt of a written notice given by the person entitled to give the same within the time now required by law, which notice shall refer to the injury or injuries sustained and claim damages or payment therefor, the person or corporation re- ceiving such notice, or some one in his or its behalf, shall give to the person injured, or to the person giving or serving such notice in behalf of the person injured, or to the executor or administrator of the person in- jured, a notification in writing that the notice given is not in compliance with the law, and requesting fosth- with a further written notice which shall comply with the law. And if the person legally authorized to give such notice shall, within five days after the receipt of such notification and request for a further written 1 This last sentence was first added by St. 1882, ch. 36. 56 STATUTORY TORTS IN MASSACHUSETTS. notice, give a further written notice complying with the law as to the time, place and cause of the injury or damage; such notice shall be of the same legal effect as if it had been given at the time of the orig- inal notice, and shall be considered as a part thereof. 1 47. The Object and Effect of the Section. The provisions of this and the following section were intended to enable towns to investigate their liability in each case where an injury was alleged to have been sustained, at a time when the impor- tant facts relating to the condition of the way and to the circumstances of the accident were easily accessible, and thus to protect themselves from actions based upon fictitious claims. 2 The giving of the notice here required is construed, therefore, as creating a strict condition precedent to the right to maintain an action for an injury upon the highway : no liability under the statute arises until the notice is given. 3 So strictly is this con- struction applied that it has been held that the town itself cannot, if it would, waive compliance with this requirement. 4 1 The provisions of this statute, it may be observed, require the introduction of two new elements into the notice, that it shall refer to the injury sustained, and shall claim damages therefor. 2 See Whitman r. Groveland, 131 Mass. 553, 556 (1881). 8 Kenady v. Lawrence, 128 Mass. 318 (1880). * Gay r. Cambridge, 128 Mass. 387 (1880). Madden v. Spring- field, 131 Mass. 441 (1881). These provisions as to notice apply to infants of tender years as well as to adults. Madden v. Springfield, 131 Mass. 441 (1881). THE LIABILITY OF MUNICIPAL CORPORATIONS. 57 4 ' TO THE COUNTY, TOWN, PLACE OR PERSONS BY LAW OBLIGED TO KEEP SAID HIGHWAY, TOWN WAY, CAUSE- WAY, OR BRIDGE IN REPAIR." 48. When a Notice is required. The notice for which provision is here made must be given in all cases where it is sought to enforce a liability for an injury suffered by reason of a failure to keep safe and convenient for travel a way which the defendant was by law obliged to repair. Thus, railroad corporations 1 and street-railway com- panies, 2 as well as towns, if bound by law to repair a highway, are entitled to this notice before an action for damages can be maintained against them under this statute. And it follows that if the defendant was not obliged by law to repair the way where the accident happened, the want of a notice will afford him no defence. Thus, a plaintiff can maintain an action against an abutter for an in- jury caused by a defect in his coal-hole, without first giving notice of the time, place, and cause of his injury. 3 So also where the plaintiff was in- jured by a defect in a sidewalk which had been laid out by the defendant upon his own land and paved continuously with the street so as to apparently form a part thereof.* 1 Mack v. Boston & Albany Railroad, 164 Mass. 393 (1895). Dickie i;. Same, 131 Mass. 516 (1881). 8 Dobbins v. West End Street Railway, 168 Mass. 556 (1897). 8 Stevenson v. Joy, 152 Mass. 45 (1890). * Holmes v. Drew, 151 Mass. 578 (1890). 58 STATUTORY TORTS IN MASSACHUSETTS. "NOTICE OF THE TIME, PLACE, AKD CAUSE OF THE SAID INJURY." 49. The Sufficiency of the Notice. The items of time, place, and cause are not required to be stated in any particular form of words : a written communication that sets them forth with reason- able fulness, and claims damages for the injury, so as to indicate that it was given for the purpose of fixing the injured person's right of action, will ordinarily satisfy the statutory requirements. 1 The minuteness with which the items should be stated must depend very largely upon the circumstances of each particular case. 2 But the broad general rule is that the notice must be so reasonably specific as to time, place, and cause as to be of substantial assistance to the officers of the town in investi- gating the case. 3 The question of the sufficiency of a notice is one of law, to be determined by the court from an in- spection of the whole communication. 4 The rules of construction, however, are not to be applied to it with technical strictness. 5 1 Harris v. Newbury, 128 Mass. 321, 325 (1880). Kenady v. Lawrence, 128 Mass. 318 (1880). McNulty v. Cambridge, 130 Mass. 275 (1881). 2 Larkin v. Boston, 128 Mass. 521, 522 (1880). Donnelly v. Tall River, 132 Mass. 299, 301 (1882). 8 Dalton v. Salem, 136 Mass. 278 (1884). Canterbury v. Bos- ton, 141 Mass. 215 (1886). 4 Shea v. Lowell, 132 Mass. 187 (1882). Lyman v. Hampshire, 138 Mass. 74 (1884). 6 SeeSpellman v. Chicopee, 131 Mass. 443 (1881). The fact that the town clerk, upon whom a notice was served, THE LIABILITY OF MUNICIPAL CORPORATIONS. 59 50. The Statement of the Time. As a general rule it is sufficient to state in the notice simply the day upon which the injury was sustained. The hour of the day need not be set out, unless it appears that something depends upon the exact time of the accident. 1 51. The Statement of the Place. The place where the accident happened should be described with sufficient particularity to make it possible to locate, with reasonable certainty, the precise spot. 2 This rule plainly is not satisfied by simply naming the street upon which the injury was received, especially if it be a street of any considerable length. 3 But the other statements contained in a notice may be considered in aid of the description of the place, so that it is enough if the correct location of the defect can be determined from the communication taken as a whole. 4 did not object to its insufficiency was not, prior to 1894, a waiver by the town of such insufficiency, as a matter of general law. Shea v. Lowell, 132 Mass. 187 (1882). See St. 1894, ch. 389, ante. Any deficiencies in the written notice cannot be supplied by oral state- ments made to the officers of the town. Roberts v. Douglas, 140 Mass. 129 (1885). 1 Donnelly v. Fall River, 132 Mass. 299 (1882). Welch v. Gard- ner, 133 Mass. 529 (1882). Cronin v. Boston, 135 Mass. 110(1883). 2 Lowe v. Clinton, 133 Mass. 526 (1882). McCabe v. Cam- bridge, 134 Mass. 484 (1883). Shallow v. Salem, 136 Mass. 136 (1883). Lyman v. Hampshire, 138 Mass. 74 (1884). Hughes v. Lawrence, 160 Mass. 474 (1894). 3 Larkin v. Boston, 128 Mass. 521 (1880). Donnelly v. Fall River, 132 Mass. 299 (1882). 4 Lowe i. Clinton, 133 Mass. 526 (1882). Sargent v. Lynn, 138 Mass. 599 (1884). 60 STATUTORY TORTS IN MASSACHUSETTS. 52. The Statement of the Cause. The designa- tion of that state of facts which constitutes the alleged defect by reason of which the accident happened is a proper and sufficient statement of the cause of the injury within the meaning of this provision of the statute. 1 It is not enough, there- fore, merely to say that the plaintiff was injured " by reason of a defect in the highway," that is not a statement of the cause of the particular in- jury, but a statement of " the general ground upon which a city in every case is liable for injuries sus- tained iipon the highway." 2 So also the descrip- tion of the cause simply as an obstruction in the highway, without stating its nature, is not suffi- cient. 3 But, having properly described the defect, it is not necessary that the notice should go further and state the cause of that defect, 4 nor even allege 1 Taylor ?;. Woburn, 130 Mass. 494 (1881). Aston v. Newton, 134 Mass. 507 (1883). Grogan v. Worcester, 140 Mass. 227 (1885). Davis r. Charlton, 140 Mass. 422 (1886). Young v. Douglas, 157 Mass. 383 (1892). As to the interpretation of the words " the improper grading of said road " as a statement of the cause, see Spoouer v. Freetown, 139 Mass. 235 (1885). 2 Noonan v. Lawrence, 130 Mass. 161 (1881). McNulty v. Cam- bridge, 130 Mass. 275 (1881). Miles v. Lynn, 130 Mass. 398 (1881). Madden v. Springfield, 131 Mass. 441 (1881). Dalton v. Salem, 131 Mass. 551 (1881). And see also Bailey v. Everett, 132 Mass. 441 (1882). 8 Roberts v. Douglas, 140 Mass. 129 (1885). 4 Whitman v. Groveland, 131 Mass. 553, 555 (1881). A .variance between the cause as stated in the notice and as proved at the trial is fatal, unless it also be shown that there was no intention to mislead, and that the town was not in fact misled, THE LIABILITY OF MUNICIPAL CORPORATIONS. 61 that the condition of things described constituted a defect. 1 ' ' IF THE SAID COUNTY, TOWN, PLACE, OR PERSONS DO NOT PAY THE AMOUNT THEREOF, HE MAY WITHIN TWO YEARS AFTER THE DATE OF SAID INJURY OR DAMAGE BRING AN ACTION OF TORT AGAINST SAID COUNTY, TOWN, PLACE, OR PERSONS TO RECOVER THE SAME." 53. The Right of Action not affected by this Provision. It is not the purpose of this clause to require any delay in beginning an action, after the notice has been given. This is true even though sufficient time is not allowed the town in which duly to call a town meeting, and thus legally to appropriate the money with which to pay the amount of the damage the only way whereby it can legally avail itself of the privilege of a settle- ment which this provision would seem to hold out. As soon, therefore, as the notice is given, the right of action is complete, and may be immediately enforced. 2 " BUT NO NOTICE GIVEN UNDER THE PROVISIONS OF THIS SECTION SHALL BE DEEMED TO BE INVALID OR INSUFFICIENT SOLELY BY REASON OF ANY INACCURACY IN STATING THE TIME, PLACE, OR CAUSE OF THE IN- JURY : PROVIDED, THAT IT IS SHOWN THAT THERE WAS NO INTENTION TO MISLEAD, AND THAT THE PARTY EN- TITLED TO NOTICE WAS NOT IN FACT MISLED THEREBY." by the statement in the notice. Bowes v. Boston, 1 55 Mass. 344, 348 (1892). McDougall v. Boston, 134 Mass. 149 (1883). 1 Savory v. Haverhill, 132 Mass. 324, 326 (1882). 2 Whitman v. Groveland, 131 Mass. 553, 556 (1881). 62 STATUTORY TORTS IN MASSACHUSETTS. 54. The Effect of the Provision. This clause does not relieve the plaintiff from the necessity of giving a notice, nor from the necessity of stat- ing therein the particulars of time, place, and cause. Its only effect, then, is to relieve from an inaccuracy in the statement of any of those par- ticulars, when it appears that such inaccuracy was not intentional, and that the town was not misled thereby. 1 The word " inaccuracy " as here used covers as well insufficiency as actual mistake. 2 Thus, if the notice fails fully to describe the particular defect relied on, but there is evidence tending to show that the authorities of the town went to the spot indicated and found the actual defect that caused the injury, it would warrant a finding that the town was not in fact misled, and so cure the defect in the notice. 3 SECTION 20. No person shall recover from a town, city, county, or place, in any such action, a greater sum for damages or injury than one-fifth of one per 1 Gardner v. Weymouth, 155 Mass. 595 (1892). See also Car- berry v. Sharon, 1.66 Mass. 32 (1896). 2 Fuller v. Hyde Park, 162 Mass. 51, 54 (1894). Gardner v. Weymouth, 155 Mass. 595, 597 (1892), semble. 8 Liffin v. Beverly, 145 Mass. 549 (1888). For cases where the inaccuracy was in the description of the place of the accident, see Veno v. Waltham, 158 Mass. 279 (1893). Conners v. Lowell, 158 Mass. 336 (1893). As bearing upon the question whether or not the town was mis- led, evidence of conversations in regard to the time, place, and cause of the injury, had with officers of the town, is admissible. Fortin v. Easthampton, 142 Mass. 486 (1886). THE LIABILITY OF MUNICIPAL CORPORATIONS. 63 cent of' the state valuation of such town, city, county, or place last preceding the commencement of the ac- tion, nor a greater sum than four thousand dollars. 55. The Burden of Proof under this Section. These provisions of the statute which in effect limit the liability are, it may be observed, made a separate section, entirely disconnected from those that impose the liability. Following the general rule of construction in such cases l it is held that a plaintiff is not bound, in order to maintain his action, to offer evidence of the valuation of the defendant town ; the burden of proving a valua- tion that would cut down the liability below four thousand dollars rests upon the defendant. 2 And it has also been held that it was fair for the jury to assume, in the absence of evidence upon the point, that one-fifth of one per cent of the State valuation would amount to more than four thou- sand dollars. 2 SECTION 21. The notice required by section nine- teen shall be in writing, signed by the person injured or by some one in his behalf, and may be given, in the case of a county, to one of the county commissioners or to the county treasurer ; in the case of a city, to the mayor, the city clerk, or the treasurer ; and in the case of a town, to one of the selectmen or to the town treasurer or clerk ; but if from physical or mental in- capacity it is impossible for the person injured to give 1 See Comm. . Hart, 11 Cash. 130, 134 (1853). 2 Harris v. Quincy, 171 Mass. 472 (1898). 64 STATUTORY TORTS IN MASSACHUSETTS. the notice within the time provided in said section, he may give the same within ten days after such in- capacity is removed, and in case of his death without having given the notice, and without having been for ten days at any time after his injury of sufficient capacity to give the notice, his executor or adminis- trator may give such notice within thirty days after his appointment. 56. The Notice must be wholly in Writing. A plaintiff cannot supply the deficiencies of his written notice by evidence showing that the officers of the town had oral information from himself, or from any other source, which pointed out more fully the time, place, and cause of the injury. The notice cannot be partly oral and partly written : it must be wholly in writing. 1 Evidence of conversations in regard to the time, place, and cause of an ac- cident, had with officials of a town, is, however, admissible as bearing upon the question whether or not the town was misled by any inaccuracy in the written notice. 2 57. By whom the Notice may be signed. As expressly provided in this section, the notice may be signed either by the injured person, or by some one in his behalf. But when the signing is by a third person, it should appear that it was done in behalf of the person injured. 3 That it was so done 1 Dalton v. Salem, 139 Mass. 91 (1885). Shea v. Lowell, 132 Mass. 187 (1882). 2 Fortin v. Easthampton, 142 Mass. 486 (1886). 8 Kenady v. Lawrence, 128 Mass. 318 (1880). Roach v. Somerville, 131 Mass. 189 (1881). THE LIABILITY OF MUNICIPAL CORPORATIONS. 65 need not, however, be stated in terms ; it is enough if the fact can be gathered from the whole notice. 1 Thus where the husband of an injured woman signed his own name alone to the notice, it was held that, taking into consideration the relation of the parties and the presumption that the husband knew that the town was not responsible to him, but only to his wife, the fact that it was signed on be- half of the injured wife sufficiently appeared. 2 58. The Service of the Notice. The notice may be served upon the town by any person, by delivering the original to a proper official, or it may be served by a public officer, by an attested copy. 3 If the notice is delivered to one of the officials indicated in this section, the service upon the town is sufficient. Thus, if it is given to one of the selectmen of a town, that is a sufficient service upon the town, although the selectman fails to communicate it to the board of selectmen. 4 So 1 Carberry v. Sharon, 166 Mass. 32 (1896). Nash v. South Hadley, 145 Mass. 105, 107 (1887). Taylor v. Wobura, 130 Mass. 494 (1881). 2 Higgins v. North Andover, 168 Mass. 251 (1897). For cases where the injured person died within ten days after the accident, and the notice relied on at the trial was given within the thirty days after the injury by a person who afterwards became the legal representative of the deceased, see Taylor v. Woburn, 130 Mass. 494,497 (1881); and Nash v. South Hadley, 145 Mass. 105 (1887). Whitney v. Lowell, 151 Mass. 212 (1890). Tub. Sts. ch. 27, 8. 117. Taylor v. Woburn, 130 Mass. 494 (1881). 5 66 STATUTORY TORTS IN MASSACHUSETTS. also if the notice is delivered in the city clerk's office, to the assistant clerk, in the absence of the clerk, it is duly served. 1 " BUT IF FROM PHYSICAL OR MENTAL INCAPACITY IT IS IMPOSSIBLE FOR THE PERSON INJURED TO GIVE THE NOTICE WITHIN THE TIME PROVIDED IN SAID SECTION, HE MAY GIVE THE SAME WITHIN TEN DAYS AFTER SUCH IN- CAPACITY IS REMOVED. 59. Incapacity to give the Notice. When the notice is not given within thirty days after the accident, the burden rests upon the plaintiff to establish the fact that the omission was due to some physical or mental incapacity which made it impossible for him to give it. 2 This burden is not sustained by evidence which shows simply that the plaintiff was not able, by reason of physical inability, to go in person and give the notice. It must be shown, in order that advantage may be taken of this provision, that there was such physi- cal or mental incapacity as to make it impossible for him, by any ordinary means at' his command, to procure the. notice to be given. 8 1 McCabe v. Cambridge, 134 Mass. 484 (1883). And see upon the same subject, Wormwood v. Waltham, 144 Mass. 184 (1887). If the notice is addressed to the proper official of the town, in his official capacity, it is a good notice to the town. Leonard y. Holyoke, 138 Mass. 78 (1884). Lyman v. Hampshire, 138 Mass. 74 (1884). 2 Mitchell v. Worcester, 129 Mass. 525 (1880). Lyons v. Cam- bridge, 132 Mass. 534 (1882). 8 Sannders r. Boston, 167 Mass. 595 (1897). Barclay v. Boston, 167 Mass. 596 (1897). May r. Boston, 150 Mass. 517 (1890). THE LIABILITY OF MUNICIPAL CORPORATIONS. 67 It is thus a question for the jury to determine, under proper instructions, whether or not the plaintiff was actually incapacitated, physically or mentally, from giving the notice within the pre- scribed number of days. 1 " AND IN CASE OF HIS DEATH WITHOUT HAVING GIVEN THE NOTICE, AND WITHOUT HAVING BEEN FOR TEN DATS AT ANY TIME AFTER HIS INJURY OF SUFFICIENT CAPACITY TO GIVE THE NOTICE, HIS EXECUTOR OR ADMINISTRATOR MAY GIVE SUCH NOTICE." 60. The Construction of the Provision. In this clause the legislature has provided by whom, and under what circumstances, the notice shall be given in case the injured person has died without giving it, and these provisions, it is held, must be strictly followed. Therefore, where the injured person lived for more than ten days in such a condition that it was possible for him to give the notice but he neglected to do it, and the notice relied on at the trial was given within thirty days after his decease by his son, who was afterward appointed executor of his estate, it was held that it was not a sufficient notice within the meaning of this provision. 2 SECTION 22. If. before the entry of an action under Lyons v. Cambridge, 132 Mass. 534 (1882). Mitchell v. Worcester, 129 Mass. 525 (1880). 1 Welch v. Gardner, 133 Mass. 529 (1882). 2 Nash v. South Hadley, 145 Mass. 105 (1887). But held differently under an earlier statute, see Taylor v. Woburn, 130 Mass. 494 (1881). 68 STATUTORY TORTS IN MASSACHUSETTS. section eighteen, the defendant tenders to the plain- tiff the amount which he would be entitled to recover, together with all legal costs, and the plaintiff does not accept the same, and does not recover upon the trial more than the sum so tendered, the defendant shall recover his costs. 61. The Effect of a Tender. Both the mean- ing of the word " tender " as here used, and the effect of making one under this section, are the same as at common law. As was said by Mr. Justice Bige- low in Bacon v. Charlton : 1 "In this statute, the word ' tender' is used without anything to change or qualify its strict technical signification. We are therefore to suppose that the legislature intended so to use it, and to annex to it all the legal in- cidents and consequences, which properly attach to the word in legal proceedings. It follows, that when a party avails himself of the right to tender to the party injured a sum for damages under this statute, and thus seeks to secure the benefits conferred by it, he subjects himself to all the con- sequences which the common law attaches to the act." It was held, therefore, in that case that " where money is tendered and paid into court, upon a declaration which contains only one cause of action, specifically set forth, it operates as a con- clusive admission of every fact, which the plaintiff would be bound to prove in order to maintain his action; leaving open only the question whether i 7 Cash. 581 (1851). THE LIABILITY OF MUNICIPAL CORPORATIONS. 69 he is entitled to recover any greater amount of damages." Evidence Upon the issue as to the existence of a defect or want of repair in or upon the highway. 62. The Acts of other Persons. The experi- ences of other persons in passing the alleged de- fective spot, had prior to the plaintiff's injury, are generally treated as collateral facts which furnish no legal presumption as to the principal fact in dispute, and are, therefore, not admissible in evi- dence. Thus, it is not competent for the plaintiff to show that another person, before the date of his own injury, received a similar injury at or near the same place, without negligence on his part. 1 Nor, on the other hand, can the town show that other persons than the plaintiff had passed and repassed the place alleged to be defective in safety, 2 or had driven over it with considerable speed without in- jury ; 3 or that no accident had previously happened at the place of the alleged defect.* And so, where the defect relied on was the insufficient width of the highway, it was held incompetent for the plaintiff to show that other carriages had been unable to pass at the place of the accident, 5 or for 1 Collins v. Dorchester, 6 Cush. 396 (1850). Blair v. I'elham, 118 Mass. 420, 422 (1875). 2 Aldrich v. Pelham, 1 Gray, 510 (1854). Kidder v. Dunstable, 11 Gray, 342 (1858). Schoonmaker v. Wilhraham, 110 Mass. 134 (1872). Marvin v. New Bedford, 158 Mass. 464 (1893). * Merrill v. Bradford, 110 Mass. 505 (1872). 70 STATUTORY TORTS IN MASSACHUSETTS. the town to show that other vehicles had met there and passed without difficulty. 1 And this rule of evidence is not altered by facts which show that the condition of the highway had all the time remained unchanged. 2 63. The Existence of Similar Defects in other Places. The fact that like defects existed in other towns can afford a defendant no excuse for its own neglect of duty. It is not competent, therefore, for a town to prove that the highway where the accident happened was in the usual condition of other country roads, 3 or that its side- walks were constructed in the same way as the sidewalks in other towns, 4 or that places of the same character had existed for a long time in the streets in other parts of the town. 5 64. The State of the Highway at other Timea. Evidence of the condition of the highway at a time prior to, or subsequent to, the accident in question is admissible, provided it is so near in point of time, or is accompanied by such further 1 Aldrich v. Pelham, 1 Gray, 510 (1854). 2 Merrill v. Bradford, 110 Mass. 505 (1872). Aldrich v. Pel- ham, 1 Gray, 510 (1854). a Kidder v. Dunstable, 11 Gray, 342 (1858). 4 George v. Haverhill, 110 Mass. 506, 512 (1872). Marvin v. New Bedford, 158 Mass. 464 (1893). 6 Bacon v. Boston, 3 Cush. 174, 181 (1849). So evidence that in other towns the portions of the highway between the carriage-way and the sidewalk were not deemed to be portions of the highway which were to be wrought for travel and kept in repair for the use of foot passengers, is not admissible. Raymond v. Lowell, 6 Cush. 524 (1850). THE LIABILITY OF MUNICIPAL CORPORATIONS. 71 facts, as to furnish a presumption that the con- dition has not changed meanwhile. 1 Thus, where the accident happened on Monday morning, evi- dence of the condition of the highway at the point in question on the previous Saturday night was admitted. 2 And so evidence of the width of the highway at the place of the accident nine months after the injury was admitted, together with evi- dence showing that the width had remained un- changed dnring that time. 3 How far either side of the day of the accident the limit shall extend is for the court, in the exercise of a reasonable discretion, to determine. 4 65. Admissions. It has been held that it is not competent for the plaintiff to put in evidence, as an admission on the part of the town that the highway in question was defective, the report of certain committees of the town in relation to the condition of the highway, and the votes of the in- 1 Berrenberg v. Boston, 137 Mass. 231 (1884). Woodcock v. Worcester, 138 Mass. 268 (1885). Neal v. Boston, 160 Mass. 518, 522 (1894), point 3. 2 Sheren v. Lowell, 104 Mass. 24 (1870). And see Daniels v. Lowell, 139 Mass. 56 (1885). 8 Brooks v. Petersham, 16 Gray, 181 (1860). See also George v. Haverhill, 110 Mass. 506 (1872). As to evidence of the habitual condition of the place where the accident happened, see Berrenberg v. Boston, 137 Mass. 231 (1884). Neal v. Boston, 160 Mass. 518 (1894). Where the injury was occasioned by an obstruction in the highway, evidence that it was in the road on the day before the accident, but had been removed at night, was held not to be ad- missible. Donaldson v. Boston, 16 Gray, 508 (1860). * Xeal v. Boston, 160 Mass. 518, 522 (1894), point 3. 72 STATUTORY TORTS IN MASSACHUSETTS. habitants thereon. 1 Nor, again, evidence that two weeks after the accident happened the road com- missioner of the town repaired the place alleged to be defective, there being nothing to show that the town had voted to make the repairs, or had ratified the act of the commissioner. 2 Evidence Upoii the issue whether the defect might have been remedied, or the injury prevented by the exercise of reasonable care and diligence on the part of the town. 66. Similar Conditions. Evidence which shows that a defect is likely to occur at any time from the operation of known forces is competent upon this issue. Thus where the plaintiff received his injury by falling into a cesspool, the cover of which had floated off during a heavy rain, it was held that evidence showing that the cover had 1 Collins v. Dorchester, 6 Gush. 396 (1850). Wheeler v. Fram- ingham, 12 Cash. 287 (1853). The report of a committee appointed by the town to inquire into the facts as to the plaintiff's injury, and the votes of the town ac- cepting such report, are not admissible as admissions of liability where the reports do not set out facts showing the liability, and where the votes do not acknowledge any liability or provide for any settlement. Dudley v. Weston, 1 Met. 477 (1840). 2 Spooner v. Freetown, 139 Mass. 235 (1885). The statements of a surveyor of highways, or of a selectman, as to the condition of the highway, are not admissions binding upon the town. Weeks v. Needham, 156 Mass. 289, 291 (1892). The testimony of an expert upon this issue is not admissible, since it relates to a matter on which the common experience and observation of the jury qualifies them to pass when the actual con- dition of the way has been described to them. Edwards v. Wor- cester, 172 Mass. 104 (1898). THE LIABILITY OF MUNICIPAL CORPORATIONS. 73 been off several times during the year before the accident, under similar circumstances, was ad- missible, and would warrant a finding that the town, with reasonable care, might have guarded against the injury. 1 67. The Expense of repairing the Highways. Since towns are not required to incur unreasonable expense in order to keep their highways safe and convenient for travel, the element of expense is important as bearing upon the question what it is reasonably practicable for them to do. Thus where the plaintiff was injured by being over- turned by a snowdrift in the highway, it was held that the town might show the actual cost of clear- ing the roads within its limits after the storm which caused the drift in question, and the esti- mated cost of clearing them if a way for travel had been opened along the middle of the road re- guardless of drifts, instead of around them as was done, together with the town valuation and the amount expended each year for the repair of high- ways. 2 Upon the same ground, facts relating to the population of the town, to the assessed valua- tion of the property therein, to the rate of taxation, to the amount of the appropriation for highways, and to the number of miles of public ways in the town, are competent evidence. 3 1 Post v. Boston, 141 Mass. 189 (1886). 2 Kooney v. Randolph, 128 Mass. 580 (1880). Hayes v. Cam- bridge, 136 Mass. 402 (1884) ; S. C. 138 Mass. 461 (1885), accord. 3 Weeks v. Needham, 156 Mass. 289 (1892). Sanders v. Palmer, 154 Mass. 475 (1891). 74 STATUTORY TORTS IN MASSACHUSETTS. Evidence Upon the issue whether the town had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence. 68. The Notoriety of the Defect. All facts and circumstances which tend to show that the defect was generally known such as the public char- acter of the way, the nature of the defect itself, the time during which it had existed, and the like * may be introduced in evidence by the plaintiff upon this issue of notice. 2 In the case of Chase v. Lowell, where the plaintiff was injured by a defec- tive shade tree, it was held that he might put in evidence not only the prominent location of the tree and the fact that a large number of citizens saw and noted its defective condition, but as well their declarations made while looking at it. 8 Such evidence is not competent, however, simply for the purpose of showing that certain inhabitants of the town had notice of the defect. 4 It is valu- 1 Under this head may be included evidence of the existence of a permanent cause which would naturally produce the defect in question. Thus where the defect was a ridge of ice extending over the sidewalk from the outlet of a water conductor, which had for a long time emptied the water from the roof of the adjacent building upon the sidewalk, it was held that the facts relating to the existence of this conductor might properly be considered by the jury upon the question of notice. Olson v. Worcester, 142 Mass. 536 (1886). 2 See citations under 46, note 1. 8 Chase v. Lowell, 151 Mass. 422 (1890). 4 Hinckley v. Somerset, 145 Mass. 326 (1887). As to the venue of actions under this statute, it is provided as THE LIABILITY OF MUNICIPAL CORPORATIONS. 75 able solely as forming the basis for an inference that the proper authorities knew, or with reason- able care might have known, of the existence of the defect. follows: Pub. Sts. ch. 161, s. 7. Actions against a city, town, or person, to recover for injury or damage received through a defect or want of repair or of sufficient railing in or upon a highway, town way, causeway, or bridge, shall be brought in the county wherein the said city or town is situated or said person resides ; except that such actions against the city of Boston may be brought iu the county of Middlesex, or in the county of Norfolk, or in the county in which the party bringing such action resides ; and such actions against the town of Nantucket, or against any town in Dukes County, may be brought in the County of Bristol. As to changes iu venue, see St. 1887, ch. 347. And see also Osgood v. Lynn, 130 Mass. 335 (1881). 76 STATUTORY TORTS IN MASSACHUSETTS. PART II. THE LIABILITY OF OWNERS OR KEEPERS OF DOGS. PUBLIC STATUTES, CHAPTER 102, SECTION 93. Every owner or keeper of a dog shall" forfeit to any person injured by it double the amount of the damage sustained by him, to be recovered in an action of tort. 1 69. The Nature of the Liability. This statute does not make the owning or keeping of a dog unlawful ; it simply makes the owner or keeper liable for the acts of his dog, giving all the dam- ages to the person injured. It is, therefore, in its nature essentially a remedial, and not a penal, statute. 2 70. The Effect of the Statute ; Scienter. At common law an action could not be maintained against an owner or keeper of a dog without proof that the defendant knew that his dog was accus- 1 The act first imposing this liability was passed in 1799. Acts 1798, ch. 54, s. 3. The provisions of that act have been repeatedly re-enacted without substantial change. See Rev. Sts. ch. 58, s. 13; Gen. Sts. ch. 88, s. 59 ; Pub. Sts. ch. 102, s. 93. 2 Le Forest v. Tolman, 117 Mass. 109 (1875). Mitchell v. Clapp, 12 Cush. 278 (1853). It is not necessary to allege, therefore, that the injurious acts were done contra formam statuti. Mitchell v. Clapp, ubi supra. LIABILITY OF OWNERS OR KEEPERS OP DOGS. 77 tomed to attack and bite mankind. 1 The very essence of the liability was the keeping or owning of a ferocious dog, knowing its dangerous char- acter. All this the statute has changed, enlarging the common law liability so far that it is no longer necessary to allege or prove that the defendant knew of the dangerous propensities of his dog. The fact alone that the dog caused damage to a person is sufficient to fix -the liability. 2 71. Proximate Cause. The acts of the dog must be the sole proximate cause of the plaintiff's injury. The intervention, however, of a wholly unforeseen event or of the action of another animal will not necessarily break the causal connection. Thus where the defendant's dog made a sudden rush at the plaintiff's horse, barking and leaping at his head, and thereby frightening him, and, while the driver was endeavoring to control him, the reins broke and in consequence the carriage struck against a post and the injury resulted, it was held that the attack of the dog was the sole proximate cause of the injury. 3 And so where the defendant's dog made a demonstration of attack upon the plaintiff's horse and frightened him so that he shied, upset the carriage and in- 1 See Popplewell v. Pierce, 10 Cash. 509 (1852), and cases cited. 2 Pressey r. Wirth, 3 Allen, 191 (1861). Galvin v. Parker, 154 Mass. 346 (1891),s{flo ABILITY OP COMMON CARRIERS OP PASSENGERS. 101 95. The Burden of Proof. Under this pro- vision of the statute, the burden of establishing the fact of due diligence rests of course upon the plaintiff. Where there is no affirmative evidence of acts of care on the part of the deceased, this burden may still be sustained by putting in evi- dence all the facts and circumstances of the case ; and if this disclosure of facts is sufficiently full, the mere absence of fault may be enough to war- rant an inference of due care. 1 But if the deceased is killed under such circumstances that it cannot be shown what he was doing at the time of the ac- cident, and it does not appear that there was any neglect on the part of the railroad which might have misled him, a jury will not be warranted in presuming that he was in the exercise of due care. 2 1 Comm. v. Boston & Lowell Railroad, 126 Mass. 61, 69 (1878). Maguire v. Fitchburg Railroad, 146 Mass. 379 (1888). It seems that a disclosure of facts which shows what the de- ceased was doing at the time of the accident that he was engaged in the performance of his duty in the usual manner is sufficient to warrant the inference of due care. Maguire v. Fitch- burg Railroad, 146 Mass. 379 (1888). 2 Livermore v. Fitchburg Railroad, 163 Mass. 132 (1895). For cases where the question of due care on the part of the deceased is discussed, see Tyler v. Old Colony Railroad, 157 Mass. 336, 339 (1892). Hubbard v. Boston & Albany Railroad, 162 Mass. 132 (1894). Brady v. Old Colony Railroad, 162 Mass. 403 (1894). Wallace r New York, etc. Railroad, 165 Mass. 236 (1896). Clark v. Boston & Maine Railroad, 164 Mass. 434, 439 (1895). Murray v. Fitchburg Railroad, 165 Mass. 448 (1896). Tilton v. Boston & Albany Railroad, 169 Mass. 253 (1897). Tnmalty v. New York, etc. Railroad, 170 Mass. 164 (1898). Phelps v. New England Railroad, 172 Mass. 98 (1898). 102 STATUTORY TORTS IN MASSACHUSETTS. 96. " In the Employment of such Corporation. "- This provision of the section is not interpreted in a popular sense. Rather, a more limited meaning is put upon its words. Therefore those cases are held not to come within its meaning, where the railroad corporation has, at the time of the acci- dent, no control over the actions or time of the deceased, although he may be in its service in some capacity during certain other hours of the day. Thus it has been held that a person who was in the service of the railroad as clerk, and who trav- elled back and forth over its road to and from his work on an employee's ticket which was given to him as a part of the compensation for his services, and on which he had a right to ride after business hours for his own private purposes, was not in the employment of the railroad within the meaning of this provision while riding on this ticket upon his own personal business, after his hours of service were over. 1 " PAID TO THE EXECUTOR OR ADMINISTRATOR." 97. The Allegation as to Administration. 111 the pleadings, it is necessary to allege that administra- tion has been taken out in this Commonwealth. 2 If the fact that the appointment was made in this State can be reasonably inferred from the allega- tions of the pleadings, that is sufficient. Thus, where it was alleged that the deceased, Burns, 1 Doyle v. Fitchburg Railroad, 162 Mass. 66 (1894> 2 Comm. v. Sanford, 12 Gray, 174 (1858). LIABILITY OP COMMON CARRIERS OF PASSENGERS. 103 resided and lost his life in Boston, and that A, of Boston, " has been duly appointed and now is ad- ministrator of said Burns," it was held that the reasonable implication was that the appointment was made in this State, and that the indictment was in this respect sufficient. 1 " FOR THE USE OF THE WIDOW AND CHILDREN OF THE DECEASED." 98. A Beneficiary must exist. Though penal in essence, the secondary object of proceedings under this section is to secure some pecuniary provision for those who were dependent upon the deceased. It is indispensable, therefore, that those entitled to the benefit of the fine that may be imposed should appear to exist. Hence it has been held that the indictment should allege as a distinct affirmative averment that the deceased has left a widow and child, or one of them, as the case may be, or, if there is neither widow nor child, then next of kin, for whose benefit the executor or ad- ministrator is acting. 2 It is not necessary, how- ever, to state in the indictment the names of the parties to be benefited by the fine imposed ; it is enough if the name of the executor or administra- 1 Comra. v. East Boston Ferry Company, 13 Allen, 589 (1866). 2 Comm. v. Eastern Railroad Company, 5 Gray, 473 (1855). Comm. v. Boston & Albany Railroad, 121 Mass. 36 (1876). An averment that the railroad is liable to the fine " to the use of A, who has been duly appointed administrator of the said deceased, and the heirs-at-law of said deceased," has been held, therefore, not to be sufficient. Comm. v. Eastern Railroad Com- pany, 5 Gray, 473 (1855). 104 STATUTORY TORTS IN MASSACHUSETTS. tor is set out and the averment made that the deceased has left persons entitled to the benefit. 1 " WHILE WALKING OR BEING UPON ITS ROAD CON- TRARY TO LAW." 99. Trespassers. The provisions of this sec- tion have not enlarged the duty that the common law has always exacted in favor of trespassers. Under the section, therefore, the rule is that if the deceased was trespassing upon the tracks of the corporation at the time of the accident which resulted in his death, there can be no recovery, unless it appears that the corporation was guilty of reckless and wilful misconduct toward him. 2 And in order to make the rule applicable it is not necessary to show that the deceased was actually trespassing upon the road-bed itself ; it applies as well where he was when killed trespass- ing anywhere within the location of the railroad. 3 It seems, furthermore, that this same rule applies with equal force and effect where the deceased was upon the premises of the railroad as a mere licensee. 4 1 Comm. v.Boston & Worcester Eailroad, 11 Cush. 512 (1853). 2 McCreary v. Boston & Maine Railroad, 153 Mass. 300 (1891) ; S. C. 156 Mass. 316 (1892). A person who is killed at a railroad crossing over a way which has not been established either by due legal proceedings or by prescription is a trespasser within the meaning of this rule. McCreary v. Boston & Maine Railroad, 153 Mass. 300 (1891). 3 Dillon v. Connecticut River Railroad, 154 Mass. 478 (1891). * Sullivan o. Boston & Albany Railroad, 156 Mass. 378 (1892). It need not be alleged in the indictment that the deceased was LIABILITY OP COMMON CARRIERS OF PASSENGERS. 105 " TO BE ASSESSED WITH REFERENCE TO THE DEGREE OF CULPABILITY." .100. Negligence on the Part of the Railroad in- dispensable. The amount of the recovery in pro- ceedings under this section is to be determined, not according to the loss sustained by the widow, children, or next of kin of the deceased, but accord- ing to the degree of blame that attaches to the railroad. It is essential, therefore, that some de- gree of negligence on its part, or on the part of its servants or agents, should appear in order that the action or indictment may be sustained. As was said by Mr. Justice Holmes in Littlejohn v. Fitchburg Railroad, 1 in reference to this provision : " This language imports that there must be some degree of culpability on the part of the corporation or of its servants, and is not satisfied by show- ing that the corporation assumed a contractual or quasi contractual responsibility for third persons who were not its servants." It seems, consequently, that if a person is killed by reason of a defect in some matter in construction which was the work of private parties, which defect was not known to the railroad and could not have been discovered by the exercise of any degree of care, there can be no recovery under this section, since in such case there is no degree of culpability on the part of the not at the time of the accident walking or being upon the defend- ant's road contrary to law, and the reasonable regulations of the corporation. Comm. v. Fitchburg Railroad, 10 Allen, 189 (1865). 1 148 Mass. 478, 482 (1889). 106 STATUTOEY TORTS IN MASSACHUSETTS. railroad or its servants. But if the railroad knows, or ought to have known, that a place in its road- bed was in a dangerous condition, carrying pas- sengers into that place under those circumstances is such negligence as will satisfy the requirements of this clause, although the railroad did not create the dangerous condition, and had not the right to remedy it. 1 " AND 2 IF AN EMPLOYEE OF SUCH CORPORATION BEING IN THE EXERCISE OF DUE CARE IS KILLED UNDER SUCH CIRCUMSTANCES AS WOULD HAVE ENTITLED THE DECEASED TO MAINTAIN AN ACTION FOR DAMAGES AGAINST SUCH CORPORATION, IF DEATH HAD NOT RESULTED." 101. The Effect of the Amendment. The scope of this amendment is limited. It alters the rules of common law which are applicable to cases of this class only so far as to give to the executor or ad- ministrator of the deceased employee the right to maintain an action against the corporation for caus- ing his death, if the employee himself, had he sur- vived, could have maintained an action on the same facts and not otherwise. It follows, therefore, that the doctrine of common employment affords a .perfect defence to an action based upon this amendment; and the Employers' Liability Act 3 cannot be invoked to avoid such defence. 4 Like- 1 Littlejohn v. Fitchburg Railroad, 148 Mass. 478 (1889). 2 Statute 1883, ch. 243, amending Pub. Sts. 121, s. 212. 3 Statute 1887, ch. 270. * Dacey v. Old Colony Railroad, 153 Mass. 112, 117 (1891). Clark v. New York, etc. Railroad, 160 Mass. 39 (1893). And see Peaslee v. Fitchburg Railroad, 152 Mass. 155 (1890). LIABILITY OP COMMON CARRIERS OF PASSENGERS. 107 wise, the rule that an employee " assumes the obvious risks arising from the nature of the em- ployment, from the manner in which the business is carried on, and from the condition of the ways, works, and machinery, if he is of sufficient capacity to understand and appreciate them," applies to cases under this amendment with the same force and effect as at common law. 1 PUBLIC STATUTES, CHAPTER 112, SECTION 213. If a person is injured in his person or property by colli- sion with the engines or cars of a railroad corporation at a crossing such as is described in section one hun- dred and sixty-three, 2 and it appears that the corpo- ration neglected to give the signals required by said 1 Goodes v. Boston & Albany Railroad, 162 Mass. 287 (1894). For suggestions as to form of indictment under this section, see Comm. v. Boston & Worcester Railroad Company, 11 Cush. 512 (1853). Comm. v. Fitchburg Railroad, 120 Mass. 372 (1876). Comm. v. Boston & Maine Railroad, 133 Mass. 383 (1882) ; and see Fuller v. Boston & Albany Railroad, 133 Mass. 491 (1882). The recovery of a judgment for the conscious suffering in an action based upon the Employers' Liability Act will not bar an ac- tion for the death based upon this statute. Clare v. New York & New England Railroad, 172 Mass. 211 (1898). ' 2 Section 163, as amended by the Acts of 1890, ch. 173, s. 1. Every railroad corporation shall cause a bell of at least thirty-five pounds in weight, and a steam-whistle, to be placed on each loco- motive engine passing upon its road ; and such bell shall be rung or at least three separate and distinct blasts of such whistle sounded at the distance of at least eighty rods from the place where the road crosses, upon the same level, any highway, town way, or travelled place over which a sign-board is required to be maintained as pro- vi.lod in the two following sections; and such bell shall be rung or such whistle sounded continuously or alternately, until the engine has crossed such way or travelled place. 108 STATUTORY TORTS IN MASSACHUSETTS. section, and that such neglect contributed to the in- jury, the corporation shall be liable for all damages caused by the collision, or to a fine recoverable by indictment as provided in the preceding section, or, in case the life of a person so injured is lost, to dam- ages recoverable in an action of tort, as provided in said section, unless it is shown that, in addition to a mere want of ordinary care, the person injured or the person having charge of his person or property was, at the time of the collision, guilty of gross or wilful negligence, or was acting in violation of the law, and that such gross or wilful negligence or unlawful act contributed to the injury. 102. Distinction between Proceedings under Sec- tion 212 and Section 213. In one direction the scope of this section is broader than that of section two hundred and twelve, but in one direction only. Proceedings under this section are not confined, as they are under section two hundred and twelve, to accidents resulting in death ; they may be employed also where personal injury alone results from the collision. 1 Under section two hundred and twelve proceed- ings may be supported by proof of any facts, prop- 1 " It may be open to question whether the remedy by indictment extends to cases of collision not attended by loss of life." Dictum by Mr. Justice C. Allen in Comm. v. Boston & Maine Eailroad, 133 Mass. 383 (1882). In an action under this section for causing death, the plaintiff cannot recover damages for conscious suffering. Lamoureux v. New York, etc. Kailroad, 169 Mass. 338, point 4 (1897). LIABILITY OF COMMON CARRIERS OF PASSENGERS. 109 erly alleged, which show that the collision at the crossing was due to negligence on the part of the corporation or to gross negligence on the part of its servants or agents, even though the bell was rung and the whistle sounded continuously for eighty rods before the crossing was reached , * and if an omission to ring the bell or to sound the whistle are the facts relied on to fix the liability, they are treated simply as evidence of negligence. 2 But, on the other hand, a plaintiff can maintain his proceedings under section two hundred and thirteen only by averring and proving the omission to ring the bell and to sound the whistle as pro- vided in section one hundred and sixty-three ; and such omission, when established, fixes the liability of the railroad irrespective of the question of negligence. 3 And again, with reference to the question of duo care, a distinction between the two sections is to be noted. Under two hundred and twelve the burden rests upon the plaintiff to show that the deceased was in the exercise of due care at the time of the collision ; 4 under two hundred and thir- teen, due care is not an element in the plaintiff's 1 The statutory signals are not necessarily a sufficient precau- tion. Bradley v. Boston & Maine Railroad, 2 Cush. 539, 543 (1848). 2 See 86, ante. 8 See Comm. v. Boston & Maine Railroad, 133 Mass. 383, 388 (1882), also 105, post. But see Comm. v. Fitchburg Railroad, 120 Mass. 372 (1876). * Livermore v. Fitchburg Railroad, 163 Mass. 132 (1895). 110 STATUTORY TORTS IN MASSACHUSETTS. case, and therefore no mere want of ordinary care on his part at that time will defeat a recovery. 1 103. What the Plaintiff must allege. In order to maintain proceedings under this section, the plaintiff must, of course, set out in his pleadings all the circumstances required by the statute to fix the liability, he must aver that the collision by which he was injured occurred at a crossing of a highway at grade ; that the railroad neglected to give the signals required by the statutes at such crossings, and that such neglect contributed to the injury. 2 "AT A CROSSING SUCH AS IS DESCRIBED IN SECTION ONE HUNDRED AND SIXTY-THREE." 104. The Effect of the Clause. The section, by reason of this provision, is limited in its ap- plication to collisions that occur at crossings at grade over ways open to public use. Therefore, an accident happening at a private crossing made for, and used by, the employees of the railroad, does not, it seems, come within its terms. 3 The 1 Sullivan v. New York, etc. Railroad, 154 Mass. 524, 527 (1891). Walsh v. Boston & Maine Railroad, 171 Mass. 52 (1898). For actions at common law where the plaintiff was injured by reason of a failure of the railroad to give the statutory signals, there being, however, no actual collision in consequence of the omission, see Norton v. Eastern Railroad Company, 113 Mass. 366 (1873). Prescott v. Same, 113 Mass. 370, n. (1873). Pollock v. Same, 124 Mass. 158 (1878). 2 Wright v. Boston & Maine Railroad, 129 Mass. 440,443 (1880). Allerton v. Same, 146 Mass. 241, 247 (1888). 8 June v. Boston & Albany Railroad, 153 Mass. 79, 82 (1891). LIABILITY OP COMMON CARRIERS OF PASSENGERS. Ill burden is upon the plaintiff, consequently, to show- that the crossing where the collision happened was a crossing at grade over a highway, estab- lished by due legal proceedings, by prescription, 1 or otherwise; or over a town way 2 or "travelled place." And in order to bring his case within this latter phrase, the plaintiff is not required to show that the way had been so laid out and established as to render the town liable for injuries resulting from defects therein ; but only that it was an open and travelled way over which a sign-board had been, or ought to have been, erected. 3 1 For cases where the highway was established by prescription, see Johanson v. Boston & Maine Railroad, 153 Mass. 57 (1891). Bagley v. New York, etc. Railroad, 165 Mass. 160 (1896). For cases where the evidence was held not sufficient to establish a highway by prescription, see McCreary v. Boston & Maine Rail- road, 153 Mass. 300 (1891). Sprow v. Boston & Albany Railroad, 163 Mass. 330 (1895). In 1892 an act was passed to prevent the acquisition of rights of way across railroads by prescription. St. 1892, ch. 275. This does not affect existing rights. 2 For a case not within the section by reason of the discontinuance of the town way, see Coakley v. Boston & Maine Railroad, 159 Mass. 32 (1893). For a case where the crossing at which the accident happened was held not to be such as is described in section 1 63 of the statute, see Stewart v. JJew York, etc. Railroad, 1 70 Mass. 430 (1898). 8 Whittaker v. Boston & Maine Railroad, 7 Gray, 98 (1856). A way is not a " travelled place " within the meaning of sec- tion 163, " unless the railroad corporation had been requested in writing by the selectmen, or required by the County Commis- sioners, to erect and maintain boards at the crossing." Coakley p. Boston & Maine Railroad, 159 Mass. 32, 38 (1893). The provisions of this section apply also to accidents happening 112 STATUTORY TORTS IN MASSACHUSETTS. " AND IT APPEARS THAT THE CORPORATION NEGLECTED TO GIVE THE SIGNALS REQUIRED BY SAID SECTION." 105. The Omission of the Signals. The pur- pose of this section of the statute, in part at least, is to enforce the duty, which is imposed by a prior section, 1 of ringing the bell and sounding the whistle at crossings of public ways at grade. Its enactment has, therefore, served to emphasize that duty and has made it an absolute obligation, entirely independent of the question of negligence. If, consequently, from any cause whatever, whether through negligence or otherwise, there is a failure to give the required warnings on approaching a grade crossing, such failure fixes the liability of the corporation under this section, provided it can . be shown to have contributed to the injury. The corporation must, then, at its peril see that the required signals are given. 2 106. The Evidence of the Omission of the Sig- nals. The burden of establishing the fact that the bell was not rung nor the whistle sounded in accordance with the statutory requirements rests of course upon the plaintiff. Usually it is a burden that he can sustain only by the testimony of witnesses who can simply swear that they did not at a crossing established by estoppel. Hanks v. Boston & Albany Railroad, 147 Mass. 495 (1888). 1 Section 163. 2 Comm. v. Boston & Maine Railroad, 133 Mass. 383, 388 (1882). Bay ley v. Eastern Railroad, 125 Mass. 62 (1878). Livermore v. Fitchburg Railroad, 163 Mass. 132 (1895). Marden v. Boston & Albany Railroad, 159 Mass. 393 (1893). LIABILITY OP COMMON CARRIERS OP PASSENGERS. 113 hear the bell or the whistle. Such testimony, standing by itself, has but little weight. It must derive its value largely from the surrounding cir- cumstances, such as the situation and occupation of the witnesses at the time. Upon this point Mr. Justice Knowlton, in Menard v. Boston & Maine Railroad, 1 has said : " Ordinarily, all that a witness can say, in such a case, when called to prove that a bell was not rung, is that he did not hear it. Such a statement, with no accompanying facts, is merely negative, and of no value as evidence. But at- tending circumstances may be shown which make the statement strong affirmative evidence. It may appear that all the attention of which the witness was capable was concentrated on the effort to ascertain whether the bell was rung, and his fail- ure to hear it could only have been because it made no sound. A witness may be in any conceivable attitude of attention or inattention, which w r ill give his evidence value, or leave it with little or no weight." 2 And upon this issue evidence of a habit of giving, or of omitting, the signals is not competent. Thus the plaintiff cannot put in evidence the fact that the railroad often or usually omitted to give the required warnings at the crossing in question, 1 150 Mass. 386 (1890). 2 Hubbard v. Boston & Albany Railroad, 159 Mass. 320 (1893). Lamoureux . New York, etc. Railroad, 169 Mass. 338, point 1, (1897). Walsh v. Boston & Maine Railroad, 171 Mass. 52 (1898), accord. 114 STATUTORY TORTS IN MASSACHUSETTS. and to ask the jury to infer therefrom that they were not given at the time of the accident. Like- wise, it is not permissible for the railroad to show that its servants usually rang the bell and sounded the whistle at that particular crossing, and to ask the jury to conclude therefrom that fy)tf were done at the time of the accident. 1 ' ' AND THAT SUCH NEGLECT CONTRIBUTED TO THE INJURY." 107. The Proof under this Provision. It is a necessary part of the plaintiff's case that he should both allege and prove that the failure of the rail- road to give the required signals contributed to the injury. He is not obliged, however, to estab- lish this connection by means of direct evidence only ; indeed, to do so becomes impossible in those cases where the accident results in instant death, since the only strictly direct testimony upon the point would have to come from the person killed. In the absence of such direct evidence, the con- nection may properly be inferred from the attend- ing facts and circumstances. Thus where the 1 Tuttle v. Fitchburg Railroad, 152 Mass. 42 (1890). For cases where the testimony of witnesses to the effect that they did not hear the required signals was held sufficient to war- rant a finding that no signals were given, see Copley v. New Haveii & Northampton Company, 136 Mass. 6 (1883). Menard v. Boston & Maine Railroad, 150 Mass. 386 (1890). Johanson v. Boston & Maine Railroad, 153 Mass. 57 (1891). In Elkins v. Boston & Albany Railroad, 115 Mass. 190 (1874), the jury found that the signals were not given, but the court set aside the verdict as against the weight of evidence. LIABILITY OP COMMON CARRIERS OF PASSENGERS. 115 deceased was instantly killed by the collision, it was held that the fact that the omission of the signals contributed to the accident might properly be inferred from evidence tending to show that the deceased was awake and capable of hearing the warnings, if they had been given ; that he knew the location of the crossing where the collision occurred ; and that he was driving at a proper rate of speed at the time. 1 ' ' UNLESS IT is SHOWN THAT, IN ADDITION TO A MERE WANT OF ORDINARY CARE, THE PERSON INJURED OR THE PERSON HAVING CHARGE OF HIS PERSON OR PROPERTY WAS, AT THE TIME OF THE COLLISION, GUILTY OF GROSS OR WILFUL NEGLIGENCE." 108. The Effect of the Clause. This provision opens the way to a possible defence to actions based upon this section. Therefore, being matter in defence only, the burden of showing gross or wilful negligence on the part of the person injured rests upon the railroad. It is, moreover, a burden 1 Doyle v. Boston & Albany Railroad, 145 Mass. 386 (1888). Lamoureux v. New York, etc. Railroad, 169 Mass. 338, point 2 (1897). Upon this subject the court said in a late case : " It is to be pre- sumed that persons approaching a place of danger, like a railroad crossing, ordinarily will pay some attention to signals given for the purpose of warning them of approaching trains. The requirement that signals shall be given is based on this assumption. It is not an unreasonable inference, therefore, that, if there is an accident at a railroad crossing, and the bell was not rung nor the whistle blown, that fact, in the absence of evidence to the contrary, had something to do with it." Walsh v. Boston & Maine Railroad, 171 Mass. 52, 58 (1898). 116 STATUTORY TORTS IN MASSACHUSETTS. that cannot be sustained by showing merely a want of ordinary care ; L by the very terms of this clause a clear distinction is drawn between ordi- nary negligence and gross or wilful negligence. This latter phrase means something different from the former, a something, however, that is no more capable of being denned in fixed terms than is the idea conveyed by the former. It is only possible to say that in order to avail itself of the means of escape here afforded, the railroad must show some- thing more in point of degree than a mere lack of due care. 2 II. Proprietors of Steamboats, Stage-coaches, etc. PUBLIC STATUTES, CHAPTER 73, SECTION 6. If the life of a passenger is lost by reason of the negligence or carelessness of the proprietor or proprietors of a steamboat or stage-coach, or of common carriers of passengers, or by the unfitness or gross negligence or carelessness of their servants or agents, such proprietor or proprietors and common carriers shall be liable in 1 See Sullivan v. New York, etc. Railroad, 154 Mass. 524, 527 (1891). Copley v. New Haven & Northampton Company, 136 Mass. 6, 10 (1883). 2 Debbins v. Old Colony Railroad, 154 Mass. 402, 404 (1891). Copley v. New Haven & Northampton Company, 136 Mass. 6, 10 (1883). For a case where on the facts the plaintiff was held to be guilty of gross or wilful negligence within this clause, see Debbins v. Old Colony Railroad, 154 Mass. 402 (1891). And see also Manley v. Boston & Maine Railroad, 159 Mass. 493 (1893). Granger . Boston & Albany Railroad, 146 Mass. 276 (1888). LIABILITY OF COMMON CARRIERS OF PASSENGERS, 117 damages not exceeding five thousand nor less than five hundred dollars, to be assessed with reference to the degree of culpability of the proprietor or pro- prietors or common carriers liable, or of their servants or agents, and recovered in an action of tort, com- menced within one year from the injury causing the death, by the executor or administrator of the de- ceased person, for the use of the widow and children of the deceased iu equal moieties, or, if there are no children, to the use of the widow, or, if no widow, to the use of the next of kin. 109. The General Scope of the Section. From an examination of the history and course of legis- lation upon the subject, the court has been led to hold that the provisions of this section of the statute do not apply to street-railway companies. 1 The same line of reasoning and the same conclu- sion apply with equal force to steam-railroad corporations. 2 1 Holland v. Lynn & Boston Railroad, 144 Mass. 425, 427 (1887). '- See historical sketch of the development of the statutes im- posing liability upon carriers, Appendix B. And see also Holland v. Lynn & Boston Railroad, 144 Mass. 425,428 (1887). For aid in the construction of the various provisions of this section of the statutes, see the interpretation given to similar pro- visions of the statute imposing the same liability upon railroad corporations, Pub. Sts. ch. 112, a. 212, ante. The cases decided under this section in its present form are very few. Comm. v. East Boston Ferry Company, 13 Allen, 589 (1866), and Comm. v. Coburn, 132 Mass. 555 (1882), seem to com- prise the whole list. 118 STATUTORY TORTS IN MASSACHUSETTS. III. Street Railways. ACTS, 1886, CHAPTER 140. An Act Authorizing Actions of Tort Against Street Railway Corporations for Loss of Life By Negligence. If by reason of the negligence or carelessness of a corporation operating a street railway, or of the un- fitness or gross negligence or carelessness of its ser- vants or agents, while engaged in its business, the life of a passenger or of a person, being in the ex- ercise of due diligence, and not a passenger or in the employment of such corporation, is lost, the cor- poration shall be liable in damages not exceeding five thousand nor less than five hundred dollars, to be assessed with reference to the degree of culpa- bility of said corporation or of its servants or agents, and to be recovered in an action of tort commenced within one year from the injury causing the death, by the executor or administrator of the deceased per- son, for the use of the widow and children of the deceased, in equal moieties; or if there are no chil- dren, to the use of the widow; or if no widow to the use of the next of kin. But no executor or adminis- trator shall for the same cause avail himself of more than one of the remedies given by this act and sec- tion two hundred and twelve of chapter one hundred and twelve of the Public Statutes. 1 110. The Effect of the Statute. Prior to the passage of this act, an action of tort could not be 1 Approved April 12, 1886. LIABILITY OF COMMON CARRIERS OF PASSENGERS. 119 maintained against a street-railway company for causing the death of a person, whether a passenger, or one not a passenger nor in the employment of the corporation. 1 The only remedy available in such cases was by indictment, in accordance with the provisions of Public Statutes, chapter one hun- dred and twelve, section two hundred and twelve. The broad general effect of this statute has been, therefore, simply to create a new remedy for the enforcement of a pre-existing right of action. 111. The Construction of the Statute. The language of this act follows very closely that of the first portion of section two hundred and twelve of chapter one hundred and twelve of the Public Statutes. In accordance with the rule of construc- tion applicable to such cases, a similar interpreta- tion is given to the provisions of this statute to that given to like provisions in the prior statute. Thus it has been held that the plaintiff must clearly indicate in his pleadings whether he intends to rely upon negligence on the part of the cor- poration itself, or upon the unfitness or gross negligence of its servants or agents, as the basis of his action. And if he fails to allege facts show- ing either the one alternative or the other, his declaration is bad on demurrer. 2 1 Holland v. Lynn & Boston Railroad. 144 Mass. 425 (1887). Gunn i'. Cambridge Railroad Company, 144 Mass. 4.30 (1887). 2 Gay v. Essex Electric Street Railway, 159 Mass. 242 (1893). And see Morey v. Gloucester Street Railway, 171 Mass. 164 (1898). The phrase " gross negligence " as used in this provision of 120 STATUTORY TORTS IN MASSACHUSETTS. Again, the distinction in respect to the question of due care, between the position occupied by a passenger and that occupied by a person neither a passenger nor an employee, which was established under the earlier statute, is followed in the con- struction of this act. 1 If, therefore, the deceased was not a passenger nor in the employment of the corporation, the burden rests upon the plaintiff to show, either by positive affirmative testimony, or by evidence from which the inference may legitimately be drawn, that he was at the time of the accident in the exercise of due care. 2 112. A Passenger. The term " passenger " as used in this act has a somewhat more limited meaning than is given to it under the statute imposing a similar liability upon steam-railroad corporations. This arises from the fact that a street-railway company does not maintain passenger stations. The public streets, though necessarily used by the traveller as a place from which to take, and upon which to leave, street cars, do not constitute a part of the company's premises, over which it has control and for the safety of which it can be held responsible: they are not properly passenger stations. The relation of passenger and carrier continues, therefore, only so long as the the act has been held to have the same meaning as was given to it under Pub. Sts. ch. 112, s. 212. Galbraith v. West End Street Railway, 165 Mass. 572, 580 (1896). 1 Creamer v. West End Railway, 156 Mass. 320 (1892). 2 Mullen v. Springfield Street Railway, 164 Mass. 450(1895). Galbraith v. West End Street Railway, 165 Mass. 572, 580 (1896). LIABILITY OF COMMON CARRIERS OP PASSENGERS. 121 traveller is actually upon the cars of the company : it terminates the moment he steps from the plat- form on to the highway. " When a passenger steps from the car upon the street, he becomes a traveller upon the highway, and terminates his relations and rights as a passenger, and the rail- way company is not responsible to him as a carrier i'or the condition of the street, or for his safe pass- age from the car to the sidewalk." Thus where the deceased had touched the ground on leaving the car, and was in the act of taking his second step when he was struck and instantly killed by a car approaching from the opposite direction, it was held that he had ceased to be a passenger and was simply a traveller upon the highway at the time when the accident happened. 1 113. Trespassers. This act also does not alter the common law rule relative to trespassers. A street-railway company is not, therefore, liable for causing the death of a person who is, at the time of the accident, trespassing upon its cars, in the absence of wanton or reckless conduct on its part. Thus where the deceased, a child of ten years, was fatally injured by the brake on a car upon which he was playing, it was held that there could be no recovery under this statute. 2 1 Creamer v. West End Railway, 156 Mass. 320 (1892). 2 Gay v. Essex Electric Street Railway, 159 Mass. 242 (1893). 122 STATUTORY TOETS IN MASSACHUSETTS. PART IV. THE LIABILITY OF EMPLOYERS. ACTS, 1887, CHAPTER 270. 1 An Act to Extend and Regulate the Liability of Employers to make Com- pensation for Personal Injuries Suffered by Employees in Their Service. 114. The Construction of the Act. The pur- pose of the legislature in enacting this statute, as its title indicates and its provisions show, was to soften some of the harsh features of the old com- mon law of master and servant, and so to place upon the statute books a law beneficial to the laboring classes. This obvious purpose furnishes a key to the interpretation of the whole act, its terms are to be given a liberal construction, favor- able to the employee just so far as the plain mean- ing of the words used will permit. 2 And this rule has, in general, been consistently applied in prac- tice under the act. There is also a further principle of general ap- plication to be taken into consideration in aid of 1 Approved^May 14, 1887. 2 The familiar rule relative to acts in derogation of the common law stands in the way of any interpretation that is more favorable to the employee than the plain meaning of the words employed by the legislature will permit. THE LIABILITY OF EMPLOYERS. 123 the construction of the statute. The vital terms of this act, as is well known, were adopted, with only slight changes of phraseology and of detail, from the English Employer's Liability Act. 1 The rule applies, therefore, that the interpretation which the English courts placed upon those terms prior to their enactment by the Massachusetts legisla- ture must have very great, if not controlling, weight in determining the construction to be placed upon the same terms by the Massachusetts court. 2 115. The General Effect of the Act. Although the word " regulate " is used in its title, this statute is not, and was not intended to be, a codification of the whole law of master and servant. Outside of its scope still exist those duties and liabilities of employers that the common law has always recognized and enforced. The real effect of the statute has been simply to take those duties and liabilities as they stood at the passage of the act, and to enlarge them. 3 This result it has brought about, speaking in general terms, in two ways : first, by abolishing some of the defences that the common law gave to the employer ; 4 and, second, by creating liabilities against him under circum- stances where there were none at common law. 5 1 43 & 44 Viet. ch. 42, enacted in 1880. 2 Comm. i: Hartnett, 3 Gray, 450, 451 (1855) ; and see Ryalls v. Mechanics' Mills, 150 Mass. 190 (1889). Mellor v. Merchants' Manufacturing Co., 150 Mass. 362, 363 (1890). 8 See Ryalls v. Mechanics' Mills, 150 Mass. 190 (1889). * See US, post. 6 See 119, post. 124 STATUTORY TOETS IN MASSACHUSETTS. 116. The Common Law Liabilities of Employ- ers. The common law liabilities of employers not only retain their place in the system of Mas- sachusetts law, but they are entirely unaffected by this act. 1 Those provisions of the statute rela- tive to procedure, such as the requirement of notice, the limitation of the time within which the action must be begun, the restriction of the amount of damages that may be recovered, all apply simply and solely to actions based upon the statute, and hence in no way restrict actions at common law. 2 Indeed, a plaintiff may, if he so desires, include in his declaration counts both at common law and under the statute, and may be allowed to go to the jury on both counts. It is generally, however, a matter entirely within the discretion of the pre- siding judge whether, under such a declaration, the plaintiff shall be allowed to do this or shall be required to elect, at the close of the evidence, whether he will stand upon the counts at common law or upon those founded upon the statute; 3 and if, when so required to elect, he chooses to pursue his remedy under this statute, the judgment in that 1 Coughlin v . Boston Tow-Boat Co, 151 Mass. 92 (1890). Clark v. Merchants', etc. Transportation Co., 151 Mass. 352 (1890). 2 See Ryalls v. Mechanics' Mills, 150 Mass. 190 (1889). 3 Toomey i?. Donovan, 158 Mass. 232 (1893). "Whether a plaintiff can be compelled to elect before the close of the evidence has not been decided, neither has it been decided that in every case of this class the trial court can or ought to compel the plaintiff to elect." Clare v. New York & New England Kailroad, 1 72 Mass. 211,213 (1898). THE LIABILITY OF EMPLOYERS. 125 action will be a bar to any subsequent proceeding at common law based upon the same cause of action. 1 No exception will be sustained to a wise exercise of the discretion of the trial court in this matter. 2 117. Declaring under the Act ; Counts. In actions under the statute a plaintiff may insert in his declaration counts based upon the different clauses of the first section ; and if he has done so, he cannot be compelled at the trial to elect upon which of them he will go to the jury. This matter does not come within the discretion of the presid- ing judge. 3 Relative to the point, the court has said : " The evidence in any particular case may make it uncertain on which ground the liability of the defendant depends, if there is any liability ; therefore a plaintiff ought to be permitted to allege all the grounds of liability which there is any evi- dence to support, and these we think may properly be alleged separately in separate counts. . . . The whole liability of the defendant for the death of an employee ought to be tried in one action, and judgment in that action ought to be a bar to any subsequent action between the same parties for the same cause of action." 4 1 Clare v. New York & New England Railroad, 172 Mass. 211, 213 (1898). 2 Brady v. Lndlow Manufacturing Co., 154 Mass. 468 (1891). Murray v. Knight, 156 Mass. 518 (1892). See also May v. Whittier Machine Co., 154 Mass. 29 (1891). 8 Beauregarde v. Webb Granite, etc. Co., 160 Mass. 201 (1893). * Beauregarde v. Webb Granite etc., Co., 160 Mass. 201 (1893). 126 STATUTORY TORTS IN MASSACHUSETTS. But if the plaintiff has been required, at the trial, to make an election between counts both of which were based upon the statute, exceptions to that order will not be sustained, if it appears that he was not injured thereby. 1 118. The Defence of Common Employment. What may perhaps be termed the destructive opera- tion of the statute is to abolish the defence of common employment ; 2 and this appears to be its only effect in this direction. It may hardly be necessary to add that the act has not wholly abolished this defence, but only in those cases that come within its terms. Section one enu- merates the employees that are taken out of the category of fellow servants, and the list cannot be extended by construction so as to avoid the de- fence of common employment in cases involving the negligence of any employee other than those there specified. 3 There arises, thus, in every case the preliminary inquiry : Was the employee whose negligence caused the injury one of those for whose negligence the employer is made liable at the suit of a fellow servant, by the terms of this statute ? The burden of establishing an affirmative answer to this question rests, of course, upon the plaintiff. 4 119. The Creative Operation of the Act. The 1 Conroy v. Clinton, 158 Mass. 318 (1893). 2 See O'Maley v. South Boston Gas Light Co., 158 Mass. 135, 136 (1893). 3 O'Keefe v. Brownell, 156 Mass. 131 (1892). . * Gibbs v. Great Western Railway Co., 12 Q. B. P. 208 (1884). THE LIABILITY OF EMPLOYERS. 127 statute creates a new liability against employers, it seems, only under one set, or at most two sets, of circumstances : first, where the death of the employee results from the accident ; and, possibly, where the employee of an independent contractor or of a sub-contractor is injured by negligence that is attributed to the employer under the provisions of the fourth section of the act. 1 In this direction also the scope of the statute is strictly limited to the cases specified in it, and cannot be broadened, even by the aid of the provisions of kindred statutes. Thus, it has been held that where an employee died without conscious suffering, leaving no widow nor dependent next of kin, his adminis- trator could not entitle himself to maintain an action under this statute by aid of the provisions of ch. 112, s. 212, of the Public Statutes, as amended by the acts of 1883, ch. 243. 2 120. Application of the Act to Municipal Cor- porations. While the provisions of this statute apply to municipal corporations 3 as well as to other employers of labor, it does not change the peculiar common law doctrines of agency that apply to such corporations. It does not by itself, 1 See 198, post, and notes. 2 Clark v. New York, etc. Railroad, 160 Mass. 39 (1893). See also Dacey . Old Colony Railroad, 153 Mass. 112, 117 (1891). 8 Coan v. Marlborough, 164 Mass. 206 (1895). Connolly u. "Wnltham, 156 Mass. 368 (1892). Conroy . Clinton, 158 Mass. 318(1893). Norton v. New Bedford, 166 Mass. 48 (1896). Cough- Ian v. Cambridge, 166 Mass. 268 (1896). Taggart v. Fall River, 170 Mass. 325 (1898). 128 STATUTORY TORTS IN MASSACHUSETTS. therefore, impose any liability upon them to their employees where an injury results from negligent acts done by their officers and agents in the course of the performance of a duty imposed upon them by law for the benefit of the public, and from the performance of which the corporation derived no profit or advantage, even though the person whose negligent acts caused the injury may be one of those for whose negligence employers are made liable by this act. Thus, where an employee of a city was injured by the fall of a bank of gravel under which he was at work by the direction of the assistant superintendent of streets, who was at the time engaged in taking out gravel for use in repairing a public street, it was held that since the assistant superintendent of streets was a public officer for whose negligence in the course of the performance of this public duty the city was not liable at common law, the plaintiff could not re- cover compensation for his injury under this act. 1 121. Waiver by the Employee of the Rights given by the Act. The question has not yet been raised in this Commonwealth whether or not the rights given to the employee by this statute can be waived by the special agreement of the parties. As a matter of construction the Massachusetts court has approached the question only so far as to lay down the broad general principle that this statute 1 McCann v. Waltham, 163 Mass. 344 (1895). PettSngell v. Chelsea, 161 Mass. 368 (1894). Mahoney v. Boston, 171 Mass. 427 (1898), accord. And see Collins v. Greenfield, 172 Mass. 78 (1898). THE LIABILITY OP EMPLOYERS. 129 does not restrict nor affect the right of employer and employee to make such agreements between themselves as they see fit. 1 Although this is a step toward an affirmative decision, the provisions of the acts of 1894, ch. 508, s. 6, 2 appear to afford an effectual bar to further progress in that direction. In England, however, it has been distinctly held that an employee may, by express contract, de- prive himself of the benefit afforded by the act. 3 This decision the English court put upon the ground that since, as a general rule, entire freedom of contract has been preserved, such an agreement would come within that general rule, there being nothing in the wording of the statute to compel a different construction. 122. Assumption of Risk ; Defects in "Ways, Works or Machinery. It is a familiar doctrine of the law of master and servant that when a person enters a service he impliedly agrees to take upon himself the obvious risks incident to the perform- ance of his duties under the then existing condi- tions, provided he is of sufficient capacity to understand and appreciate them. This doctrine of 1 See O'Maley v. South Boston Gas Light Co., 158 Mass. 135, 137 (1893). 2 This section reads as follows : " No person or corporation shall, by a special contract with persons in his or its employ, exempt himself or itself from any liability which he or it might be under to such persons for injuries suffered by them in their employment and which result from the employer's own negligence or from the negligence of other persons in his or its employ." 8 Griffiths v. The Earl of Dudley, 9 Q. B. D. 357 (1882). 9 130 STATUTORY TORTS IN MASSACHUSETTS. the assumption of risk, so far as it relates to dangers incident to the defectiveness or inferiority of the employer's ways, works, or machinery, continues in force under the Employer's Liability Act, and applies to cases based upon it in the same manner, to the same extent, and with the same effect as at common law. 1 Therefore, whatever may be the difficulties of its practical application, the rule is clear that if an employee is injured by reason of any danger the risk of which he must, under this doctrine, be deemed to have assumed, he cannot recover compensation under the statute. 2 As a rule of law, the operation of this principle of the common law is limited to such defects as 1 Cassady v. Boston & Albany Railroad, 164 Mass. 168, 170 (1895). O'Maley v. South Boston Gas Light Co., 158 Mass. 135 (1893). 2 O'Maley v. South Boston Gas Light Co., 158 Mass. 135 (1893). Fisk D. Fitchburg Eailroad, 158 Mass. 238 (1893). Gleason v. New York, etc. Railroad, 159 Mass. 68 (1893). Goodridge v. "Washington Mills Co., 160 Mass. 234 (1893). Sullivan v. Fitch- burg Railroad, 161 Mass. 125 (1894). Connelly v. Hamilton Woolen Co., 163 Mass. 156 (1895). Cassady v. Boston & Albany Railroad, 164 Mass. 168 (1895). Austin v. Boston & Maine Rail- road, 164 Mass. 282 (1895). Lehman v. Van Nostrand, 165 Mass. 233 (1896). O'Brien v. Staples Coal Co., 165 Mass. 435 (1896). Kenney v. Hingham Cordage Co., 168 Mass. 278 (1897). McCauley v. Springfield Street Railway, 169 Mass. 301 (1897). Thompson v. Norman Paper Co., 169 Mass. 416 (1897). Beique v. Hosmer, 169 Mass. 541 (1897). O'Connor v. Whittall, 169 Mass. 563 (1897). Donahue v. Washburn & Moen Manuf. Co., 169 Mass. 574 (1897). Cunningham v. Lynn & Boston Street Railway, 170 Mass. 298 (1898). Tenanty v. Boston Manufacturing Co., 170 Mass. 323, (1898). Mclsaac v. Northampton Electric, etc. Co., 172 Mass. 89 (1898). Ellsbury v. New York, etc. Railroad, 172 Mass. 130 (1898). THE LIABILITY OF EMPLOYEES. 131 are open and obvious, those the existence of which the employee knew or ought to have known when he entered the service. 1 And in a case in- volving injury by reason of such defects, the pre- siding judge may either take the case from the jury, or order a verdict for the defendant. 2 123. Exceptions to Doctrine of Assumption of Risk. There are certain exceptions to the rule as to the assumption of the risk incident to defects in the ways, works, or machinery that are recog- nized in the decisions under the statute. Thus, whether the agreement between employer and em- ployee relative to risks be express or implied, the latter cannot, it seems, be held to have assumed the risk from dangers resulting from conditions which arise or defects which come into existence, after the making of the contract, which cannot be deemed to have been contemplated when the con- tract was made. 3 1 Austin v. Boston & Maine Railroad, 164 Mass. 282 (1895). 2 See cases cited page 130, note 2. Even though an employee must be held to have assumed the obvious risks of his employment, " this is not conclusive against his right to have compensation for his injury, if upon the evidence there was, back of the dangers of which he assumed the risk, some breach of duty toward him on the part of his employer which could fairly be found to have been the cause of the accident." The negligence of the superintendent may be such a breach of duty. McPhee v. Scully, 163 Mass. 216 (1895). 8 See O'Maley v. South Boston Gas Light Co., 158 Mass. 135, 138 (1893). But if, after the employment has begun, alterations are made which render the ways, works, or machinery more dangerous, and the employee, knowing the facts, continues in the service without 132 STATUTORY TORTS IN MASSACHUSETTS. And again, an employee cannot be held, as a matter of law, to have assumed the risks arising from an unusual and unreasonable method of transacting the employer's business. 1 If, therefore, the evidence shows that there was a defect in the ways, works, or machinery which was not the usual and obvious condition of things, and that such defect caused the injury, it becomes a question of fact for the jury whether the plaintiff was injured by an occurrence the risk of which he had assumed. In England it has been held that where a duty is imposed upon an employer by statute, the em- ployee cannot assume the risk of his failure to perform that duty, and he is entitled to recover under this act, although he knew of the breach of the statutory duty on the part of the employer and continued at work in spite of that knowledge. 8 The question involved in that decision has not yet, however, been passed upon by the Massachusetts court. 4 objection on account of the additional risk to which he is subjected, his consent to the risk may be inferred. Carrigan v. Washburn & Moen Manuf. Co., 170 Mass. 79 (1898). 1 Caron v. Boston & Albany Railroad, 164 Mass. 523, 526 (1895). Lynch w. Allyn, 160 Mass. 248, 253 (1893). 2 Geloneck v. Dean Steam Pump Co., 165 Mass. 202,216 (1896). Powers v. Fall River, 168 Mass. 60 (1897). Lynch v. Allyn, 160 Mass. 248, 253 (1893). See also Brouillette v. Conn. River Rail- road, 162 Mass. 198 (1894). 8 Baddeley v. Earl Granville, 19 Q. B. D. 423 (1887). * For statutes imposing certain duties upon employers, see Acts 1894, ch. 41, an act to provide for the blocking of railroad frogs, switches, and guard rails. Acts 1895, ch. 362, an act to THE LIABILITY OF EMPLOYERS. 133 124. Voienti non fit Injuria. The broader .principle of common law, expressed by the maxim volenti non fit injuria, applies also to cases under this statute, and with like effect as at common law. If, therefore, an employee is injured in con- sequence of defects in the condition of the ways, works, or machinery that were known to him, the risk of which he understood and appreciated, and voluntarily encountered, he is debarred from re- covering damages therefor in an action under the statute. 1 The peculiar field for the application of this principle is obviously to those cases where an injury results from dangers that do not come with- in the narrower doctrine of the assumption of risk, dangers that arise after the service begins, as well as dangers in existence in the beginning. 2 But in order to make the rule applicable to any specific case, it is not enough to show mere knowl- edge of the existence of the danger : it must further appear that the risk was appreciated and voluntarily assumed. 3 Unless the circumstances are such as to make it perfectly clear that the require locomotives and cars used in traffic within the Common- wealth to be equipped with certain safety appliances. 1 Mellor v. Merchants' Manufacturing Co., 150 Mass. 362 (1890). Lothrop v. Fitchburg Railroad, 150 Mass. 423 (1890). Thomas v. Quartermain, 18 Q. B. D. 685 (1887). Smith v. Baker, [1891] A. C. 325. 2 See Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155 (1891). 8 Thomas v. Quartermain, 18 Q. B. D. 685 (1887). Fitzgerald . Connecticut River Paper Co., 155 Mass. 155 (1891). 134 STATUTORY TORTS IN MASSACHUSETTS. whole risk was voluntarily encountered, the ques- tion is one of fact for the jury. 1 125. Assumption of Risk ; Negligence of Super- intendent. At common law it is considered to be a part of the implied contract of service that the employee assumes the risk of the negligence of his fellow servants, of whom the superintendent is one. 2 The statute, however, has so far changed the common law relations of these two parties that the superintendent and the employee under him are not fellow servants in those cases within its terms ; and hence, in such cases, there is no room for implying that term of the contract of service which the common law recognizes. It has, there- fore, been uniformly held that an employee cannot, under the act, assume the risk that the superin- tendent will do a negligent act which will result in his injury. 3 This rule is obviously the mere assertion in another form that the act has, in such cases, abolished the defence of common employ- ment. These decisions still leave open the broader ques- tion whether or not an employee can, under the act, voluntarily assume the risk of the negligence of a superintendent whom he knows to be incompetent 1 Mahoney v. Dore, 155 Mass. 513, 518 (1892). 2 Farwell v. Boston & Worcester Railroad Corporation, 4 Met. 49 (1842). Moody v. Hamilton Manufacturing Co., 159 Mass. 70 (1893). 3 Malcolm v. Fuller, 152 Mass. 160, 167. (1890). Davis v. New York, New Haven, etc. Railroad, 159 Mass. 532, 536 (1893). Lynch v. Allyn, 160 Mass. 248, 254 (1893). THE LIABILITY OF EMPLOYERS. 135 and habitually careless. 1 Since that doctrine, commonly expressed by the maxim volenti non fit injuria, rests upon principles entirely distinct from those of the fellow-servant rule, and upon princi- ples that the act has not abolished, qucere whether this field is not still open for its application. All of the above principles, and the qucere as well, apply in like measure to cases involving the negligence of such a person as is described in the third clause of the first section of the statute. 126. Actions under the Act in the Federal Courts. If the facts of a case arising under this statute are such that the United States courts would have jurisdiction over it, the plaintiff has the option of bringing his action either in the State or the Federal court. In such a case it may oftentimes be an advantage to him to elect to sue in the latter tribunal, since it applies its own interpretation of common law rules, which interpretation may be more favorable to a plaintiff than that applied by the State court. Thus it seems that the well- settled rule of the Federal courts which makes contributory negligence a matter of defence only, will be applied to cases under this statute. 2 But in so far as the construction given to the terms of the act itself is concerned, the one tribunal is no more favorable than the other : that general rule of practice which makes the interpretation given 1 See the common law case of Hatt v. Nay, 144 Mass. 186 (1887). 2 Griffin v. Overman Wheel Co., 61 Fed. Rep. 568 (1894). 136 STATUTORY TORTS IN MASSACHUSETTS. to the statutes of a State by the highest court of that State binding upon the United States courts, applies to actions based upon this act. 1 SECTION 1. Where, after the passage of this act, personal injury is caused to an employee, who is him- self in the exercise of due care and diligence at the time : 127. Who may sue; What he must show. Under the act the right of action does not cease with the death of the injured employee, as is the rule at common law. This section, therefore, is construed as giving a right of action not alone to the injured employee himself, but also, in case of his death, to his legal representatives suing in his right. 2 In either case the burden rests upon the plaintiff to bring his case within the terms of the section. To sustain this burden he must show, first, the existence of some defect in the ways, works, or machinery, or the negligence of some one of those persons mentioned in the second or third clauses ; and, second, that personal injury was caused by reason thereof. Each of these points must be estab- lished ; neither one without the other is sufficient to entitle the plaintiff to recover compensation. 3 128. The Requirement of Due Care. The pro- vision of the act relative to diligence introduces 1 See Leffingwell v. Warren, 2 Black, 599, 603 (1862). 2 Eamsdell v. New York, etc. Railroad, 151 Mass. 245, 250 (1890). 8 See Felt v. Boston & Maine liailroad, 161 Mass. 311 (1894). THE LIABILITY OF EMPLOYERS. 137 no new element into the right of an employee to recover compensation from his employer for per- sonal injuries suffered in the course of his employ- ment. The common law doctrine of contributory negligence is thereby expressly retained under the statute, and without modification. Likewise the common law rule as to the burden of establishing the fact of due care, as that rule is interpreted by the Massachusetts court, applies to actions based upon the statute. 1 It rests, there- fore, upon the plaintiff to show, either by positive affirmative testimony or by evidence from which it may legitimately be inferred, that he was at the time of the accident in the exercise of due dili- gence ; and the establishment of this fact is a condition precedent to his recovery. 2 129. Some Principles of the Doctrine of Due Care. It may perhaps be worth the while to note in passing some of the common principles of the law as to due care that have been applied in actions based upon this statute. Thus it has been held that due care on the part of the plaintiff or of the deceased may be inferred as well from the absence of negli- gence, where there is a full disclosure of the facts of the case, as from positive acts of diligence. 3 Where the facts in the case, therefore, go to show that 1 See opinion of Mr. Justice Webb in Griffin v. Overman Wheel Co., 61 Fed. Rep. 568 (1894). 2 Lynch v. Boston & Albany Railroad, 159 Mass. 536, 538 (1893). Geyette v. Fitchburg Railroad, 162 Mass. 549 (1895). Flaherty v. Norwood Engineering Co., 172 Mass. 134 (1898). 8 Caroii v. Boston Albany Railroad, 164 Mass. 523, 525 (1895). 138 STATUTORY TORTS IN MASSACHUSETTS. the plaintiff was engaged in the performance of his duty, and there is nothing to show that he was careless, and the case is not one which makes it incumbent on the plaintiff to prove that he did a particular act by way of precaution, there is evi- dence from which the jury may properly find that he was in the exercise of due care. 1 But if the evidence fails to show that the employee was en- gaged in the performance of his duty, or to show what he was doing, when the accident happened, an inference of due care is not justified : 2 there is not in such a case a sufficient disclosure of the facts to furnish a basis upon which to form a proper inference. The rule is, of course, the same where there is nothing to show how the accident happened. 3 In each of these latter cases the ques- tion of due care is left wholly to conjecture. When the case is one that requires the employee to do any act for his own protection, in order to satisfy the burden of proof on this subject it must appear affirmatively that he did that act. 4 But it is not necessary, it seems, to show in such cases that the employee took every possible precaution to protect himself : he has a right to trust, somewhat 1 Thyng v. Fitchburg Railroad, 156 Mass. 13 (1892), as ex- plained in Geyette v. Fitchburg Railroad, 162 Mass. 549, 551 (1895). 2 Irwin v. Alley, 158 Mass. 249 (1893). Tyndale v. Old Colony Railroad, 156 Mass. 503, 505 (1892). 8 Dacey v. New York, etc. Railroad, 168 Mass. 479 (1897). 4 Lynch v. Boston & Albany Railroad, 159 Mass. 536 (1893). See also Davis v. New York, etc. Railroad, 159 Mass. 532 (1893). THE LIABILITY OF EMPLOYERS. 139 at least, to the superintendent to look out for his safety, in determining how and where he shall work ; 1 and this seems to be so even though all of the conditions are known to the employee. 2 Just how far this right to rely upon the superintendent extends is a difficult problem, toward the solution of which the cases afford little help. The circumstances of a case may be such that the employee has a right to rely upon something in the ways or works to warn him of the approach of danger, especially where his duty requires him to give his whole attention in other directions. In such a case he has the right to assume that the ways or works are in such a condition as to give the proper warning, and is not negligent in acting upon that assumption. 3 1 Hennessy v. Boston, 161 Mass. 502 (1894). Mahoney v. New York, etc. Railroad, 160 Mass. 573 (1894), semble. 2 Powers v. Fall River, 168 Mass. 60 (1897). 8 Maher v. Boston & Albany Railroad, 158 Mass. 36, 44 (1893). The question, of due care on the part of the employee has been discussed in various aspects in the numerous cases under the statute. For such discussions see Sullivan v. Old Colony Railroad, 153 Mass. 118 (1891). Thompson v. Boston & Maine Railroad, 153 Mass. 391 (1891). Gustafsen v. Washburn & Moen Manuf. Co., 153 Mass. 468, 474 (1891). Shea v. Boston & Maine Railroad, 154 Mass. 31 ( 1891 ). Steffe v. Old Colony Railroad, 156 Mass. 262 (1892). Tyndale v. Same, 156 Mass. 503 (1892). Maher v. Boston & Albany Railroad, 158 Mass. 36 (1893). Shepard v. Boston & Maine Railroad, 158 Mass. 174 (1893). Davis v. New York, etc. Railroad, 159 Mass. 532, 535 (1893). Geyette v. Fitchburg Rail- road, 162 Mass. 549 (1895). Mears v. Boston & Maine Railroad, 163 Mass. 150 (1895). Houlihan v. Connecticut River Railroad, 164 Mass. 555 (1895). Nihill v. New York, etc. Railroad, 167 Mass. 52 (1896). Dyer v. Fitchburg Railroad, 170 Mass. 148 140 STATUTORY TORTS IN MASSACHUSETTS. SECTION 1, CLAUSE 1. By reason of any defect in the condition of the ways, works or machinery con- nected with or used in the business of the employer, which arose from or had not been discovered or rem- edied owing to the negligence of the employer or of any person in the service of the employer and in- trusted by him with the duty of seeing that the ways, works or machinery were in proper condition ; or 130. Effect of the Clause. It was, at the time of the enactment of this statute, the common law rule, well settled in Massachusetts, that it was the duty of an employer to use reasonable care both in furnishing ways, works, and ma- chinery suitable for the carrying on of his business, and also in keeping them in repair. 1 It was equally well settled that lie could not wholly es- cape liability for a breach of those duties simply by delegating their performance to a competent servant. 2 While the rule upon this latter point was somewhat indefinite, it was pretty clear that the employer was not liable for the negligence of such a servant in all cases, but only where his negligence -was of such a character as to show a failure on the part of the employer himself in the performance of his own duties. 3 There was, there- (1898). Fossi>. Old Colony Railroad, 170 Mass. 168 (1898). St. Jean v. Boston & Maine Railroad, 170 Mass. 213 (1898). 1 Holden v. Fitchburg Railroad, 129 Mass. 268 (1880), and cases cited. 2 Lawless v. Connecticut River Railroad, 136 Mass. 1 (1883). 8 Rogers v. Ludlow Manufacturing Co., 144 Mass. 198 (1887). THE LIABILITY OP EMPLOYERS. 141 fore, a considerable class of common law cases where the plaintiff was injured by a defect in the ways, works, or machinery, in which the fellow- servant doctrine still afforded a complete defence. 1 By sweeping away that defence in such cases, 2 it is apprehended that this clause has served, not merely to codify this branch of the common law of master and servant, but materially to extend the liability of employers. " BY REASON OF ANY DEFECT." 131. Relation of the Defect to the Injury. In order to recover under this clause of the statute the plaintiff must clearly show a defect in the ways, works, or machinery, for the existence of which the employer is made responsible by its terms, and that it operated as a cause of the in- jury it need not be the sole cause. 3 If, there- fore, the cause of the accident appears upon all the evidence to be wholly conjectural, the action can- not be maintained and the case may be taken from the jury. 4 And, furthermore, it must appear that the alleged defect was the direct or proximate cause of the injury. Hence it is not enough to show that there was a defect for the existence of Johnson v. Boston Tow-Boat Co., 135 Mass. 209 (1883). Ford v. Fitchburg Railroad, 110 Mass. 240, 259 (1872), and cases cited. 1 Johnson v. Boston Tow-Boat Co., 135 Mass. 209 (1883). McGee v. Boston Cordage Co., 139 Mass. 445 (1885). 2 See 118. 8 Elmer v. Locke, 135 Mass. 575 (1883). 4 Clare v. New York & New England Railroad, 167 Mass. 39 (1896). Murphy v. Boston & Albany Railroad, 167 Mass. 64 (1896). 142 STATUTORY TORTS IN MASSACHUSETTS. which the employer was responsible, and that it had something to do with the accident : it must be shown also that it contributed thereto directly or proximately. 1 132. What Defects come -within the Clause. Not every defect in the plant or appliances, though it be the legal cause of an injury to an employee, is a defect in the condition of the ways, works, or machinery within the meaning of this clause. Legal consequences attach under the statute, as at common law, only to those defects in the ways, works, or machinery to guard against which a duty rests upon the employer. If there be any defects of such a nature that the law does not hold an employer bound to guard against them, he is not liable under this clause for injuries due to them. It has been held, therefore, that since in general no obligation rests upon him relative to temporary defects that arise from common- and short-lived causes, such faulty conditions do not constitute defects within this clause. Thus the dampness of moulds in a foundry, which caused an explosion of the melted metal that was poured into them, is not a defect within the meaning of this part of the statute. 2 1 Brady v. Ludlow Manufacturing Co., 154 Mass. 468 (1891). 2 Whittaker v. Bent, 167 Mass. 588 (1897). See also McCann v. Kennedy, 167 Mass. 23 (1896). "There are many transitory risks of which it is impracticable to require an employer to give notice to his men, although no doubt, if the risk is very great and unusual, the fact that it is short-lived is not always an excuse." Dictum, Thompson v. Norman Paper Company, 169 Mass. 416 (1897). THE LIABILITY OF EMPLOYERS. 143 S 133. The Presence of Extraneous Substances as a Defect. Objects lying upon the way, which do not alter its fitness for the purpose for which it is generally used, are not defects in the way within the meaning of this clause. 1 It has been held, thus, that the mere presence of rubbish upon the floor of a house in the process of construction was not a defect. 2 So also that a stone which was left upon a staging, said staging being in no way defective, and which fell off and caused the injury, was not a defect. 3 134. The Failure to supply Safety Contrivances as a Defect. It is not the duty of an employer to furnish the latest and best machinery : he is only bound to see that that which he does furnish is safe and suitable. 4 If, therefore, it appears upon the evidence that a machine is not in itself defect- ive, but is in the same condition at the time of the accident as it was when the plaintiff entered the defendant's employ, the mere fact that certain con- trivances which would have rendered the machine more safe, had not been put upon it, does not con- stitute a defect in the condition of the ways, works, or machinery within the meaning of this clause. 6 1 McGriffin v. Palmer's Ship-building Co., 10 Q. B. D. 5 (1882). 2 O'Connor r. Neal, 153 Mass. 281 (1891). 3 Carroll t;. Willcntt, 163 Mass. 221 (1895). 4 O'Malley v. South Boston Gas Light Co., 158 Mass. 135, 137 (1893), semble. Wood, Master and Servant, page 688. 5 Ross v. Pearson Cordage Co., 164 Mass. 257 (1895). O'Connor v. Whittall, 169 Mass. 563 (1897). Evidence, therefore, that the arrangement of the machinery ia 144 STATUTORY TORTS IN MASSACHUSETTS. 135. The Negligent Use of Safe Appliances as a Defect. The negligent use of a proper and safe appliance does not constitute a defect in the con- dition of the ways, works, or machinery within the meaning of the clause. 1 136. The Unsuitableness of Safe Appliances as a Defect. In order to show a defect within the meaning of this clause, the plaintiff is not neces- sarily required to prove that some appliance was out of order. As was said by the court in a re- cent case: "An unsuitableness of ways, works, or machinery for work intended to be done and actually done by means of them, is a defect within the meaning of statute 1887, ch. 270, s. 1, cl. 1, although the ways, works, or machinery are per- fect of their kind, in good repair, and suitable for some work done in the employer's business other than the work in doing which their un- suitableness causes injury to the workman." 2 An appliance that was perfect and suited to the work to which it was put at the time when it was pur- chased, may, by reason of its long use and the greater strain put upon it because of the develop- different from that usually made in other like establishments is not admissible. French v. Columbia Spinning Co., 169 Mass. 531 (1897). 1 O'Keefe v. Brownell, 156 Mass. 131 (1892). When the employer has supplied the necessary materials for rendering safe the use of a common tool, as cleats and nails for holding in place a movable truck while in use, the neglect to use those materials is the negligence of the employee, s. c. 2 Geloneck ?;. Dean Steam Pump Co., 165 Mass. 202, 217 (1896). Heske t;. Samuelson, 12 Q. B. D. 30 (1883), accord. THE LIABILITY OF EMPLOYERS. 145 ment of the business in which it is used, become in time unsuitable for that same use, and consti- tute a defect in the condition of the ways, works, or machinery within the above rule. 1 Such cases are to be distinguished, of course, from those where the employer has furnished a supply of proper appliances for the work to be done, but the employee failed to select and use such as were fitted for the purpose. In these latter cases there is no defect for which the em- ployer can be held liable under the act. 2 137. A Dangerous Method of carrying on Busi- ness as a Defect. It has not been decided in Massachusetts whether a dangerous method of carrying on the employer's business constitutes a defect in the condition of the ways, works, or machinery within the meaning of this clause. The courts in England have, however, passed upon the point, taking an affirmative view of the question. 3 But the problem is not one of primary importance, since a prior question must be decided before it can arise, namely, Did not the plaintiff as- sume the risks incident to such dangerous method ? He will be held to have done so where it does not appear that any change had been made in the mode of doing the business, so as to make it more 1 Gnnn v. New York, etc. Railroad, 171 Mass. 417 (1898). a Alien w. Smith Iron Co., 160 Mass. 557 (1894). Thyng v. Fitchburg Railroad, 156 Mass. 13 (1892). Trimble v. Whitier Machine Works, 172 Mass. 150 (1898). 8 Smith v. Baker, [1891] A. C. 325. 10 146 STATUTORY TORTS IN MASSACHUSETTS. dangerous, after he entered the defendant's em- ploy. 1 138. Variance in Proof of Defect. A variance between the declaration and the proof as to the character of the defect is not fatal, at least in cases where the precise nature of the defect is peculiarly within the knowledge of the defendant, provided the declaration correctly points out its general nature. 2 " IN THE CONDITION." 139. Construction of the Phrase. The term " defect in the condition of the ways, works, or machinery," it may be observed, is of somewhat broader significance than is the shorter phrase, " defect in the ways, works, or machinery." This fact is recognized by the courts, 3 and opens the way to a liberal construction of the words them- selves. The emphasis is placed upon " the con- dition," the condition relative to the employee, and accordingly it is held that the words do not refer to working capacity, but to condition with regard to the safety of the employees. 2 "OF THE WATS, WORKS OR MACHINERY." 140. Paths necessarily used as a Part of the Ways. It has not been directly decided by the Massachusetts court whether or not the path that 1 Caron v. Boston & Albany Railroad, 164 Mass. 523, 530 (1895). 2 Willey v. Boston Electric Light Co., 168 Mass. 40 (1897). 8 McGriffin v. Palmer's Shipbuilding Co., 10 Q. B. I). 5 (1882). Willey v. Boston Electric Light Co., 168 Mass. 40, 42 (1897). THE LIABILITY OP EMPLOYERS. 147 an employee ordinarily takes in order to pass from one part of the shop to another, which passing back and forth is required by the exigencies of his employment, is a way within the meaning of this clause. In Dolphin v. Plumley l the court seems to intimate that the answer to the question would be in the affirmative. This would be in accord- ance with the English view. 2 141. Explosives as Part of the Ways or Works. An article which is bought by the employer for a specific use and is instantly consumed in that use, as dynamite used for blasting, is not itself a part of the employer's ways or works. 3 Nor, having failed properly to explode when the blast was set off, does it become a defect therein so that an employee, injured by its subsequent explosion while trying to remove the charge, can recover under this clause. 4 As was said by Mr. Justice Knowlton, speaking in a recent case 4 of a car- tridge which had remained undischarged after the blast had exploded : " This was merely a condition of the material upon which the employees were working, caused by their work, and necessarily incident to the business in which they were en- gaged. It was in no proper sense a defect in the ways, works, or machinery of the defendant." 142. Partially completed and Temporary Struct- 1 167 Mass. 167 (1896). 2 Willetts v. Hart, [1892] 2 Q. B. 92. 8 Shea v. Wellington, 163 Mass. 364, 369 (1895). * Welch v. Grace, 167 Mass. 590, 592 (1897). 148 STATUTORY TORTS IN MASSACHUSETTS. urea as Part of the Ways or Works. The English courts have held distinctly that this clause does not apply to partly made ways or works upon the employer's premises, 1 as the partially constructed walls of a warehouse, which was being built upon the employer's land, to be used when completed in his business. This decision is placed upon the ground that the scope of the clause is limited to ways or works actually connected with, or actually used in, the business of the employer; which principle, fairly applied, must exclude incomplete structures. 2 Upon this same ground the Massachusetts court has held that this clause of the statute does not apply to temporary structures constructed on the premises of third persons, as a staging built up as the work progressed by masons who were engaged in putting up a building; 3 or a staging used in painting a building. 4 The rule in these cases has been applied also to ladders that were supplied by the employer, but were fastened together by the workmen themselves and by them placed against the house of a third person, which they were en- gaged in painting. 6 1 Howe v. Finch, 17 Q. B. D. 187 (1886). 2 So it has been held that a building in the process of construc- tion upon the premises of a third person was not a part of the ways, works, or machinery of the sub-contractor who was helping to build it. Beique ;-. Hosmer, 169 Mass. 541 (1897). 8 Burns v. Washburn, 160 Mass. 457 (1894). Reynolds v. Barnard, 168 Mass. 226 (1897). 4 Adasken v. Gilbert, 165 Mass. 443,445 (1896). 5 McKay v. Hand, 168 Mass. 270 (1897). THE LIABILITY OP EMPLOYEES. 149 The case of Prendible v. Connecticut River Manufacturing Company 1 presents an apparent exception to the rule in those cases, but it is ap- parent only. In that case the staging, by the fall of which the plaintiff was injured, was about twenty feet long by five wide, made in permanent form, and so constructed that it could be moved bodily from place to place about the defendant's premises as the work required. Because it was a perman- ent, though movable, structure and was intended to be used in each place where it was erected for a considerable time, the court held that it was a part of the defendant's ways, works, or machinery. 2 It was plainly as much a part of the permanent works of the employer as the defective truck in Geloneck v. Dean Steam Pump Company, 3 or any similar appliance. "CONNECTED WITH OR USED IN THE BUSINESS OF THE EMPLOYER." 143. "What must be shown under this Provi- sion. The question of the ownership of the ways, works, or machinery in any given instance affords little, if any, direct aid in determining whether or not the case comes within the meaning of these words. 4 There are, however, two essential elements found in every case within the clause, which furnish 1 160 Mass. 131 (1893). 2 See Reynolds v. Barnard, 168 Mass. 226, 227 (1897). > 165 Mass. 202 (1896). 4 Coffee v. New York, etc. Railroad, 155 Mass. 21, 23 (1891). Bowers v. Connecticut River Railroad, 162 Mass. 312 (1894). 150 STATUTORY TORTS IN MASSACHUSETTS. a decisive test upon this point. Thus, in order to bring his case within the provision, a plaintiff must show, first, that the defect was in ways, works, or machinery that the employer had expressly or im- pliedly authorized his employees to use in carrying on his business; and, second, that the employer had the control over them. 1 The rule was stated by Mr. Justice Morton, in Trask v. Old Colony Railroad, 2 as follows : " It may not be necessary, in order to render an employer liable for an in- jury occurring to an employee through a defect in the ways, works, or machinery, that they should belong to him, but it should at least appear that he has the control of them, and that they are used in his business, by his authority, express or implied." 144. General Application of the Rule. Both of the elements above referred to must co-exist the absence of either is fatal. Therefore, if it ap- pears that the employer has no control over the ways, works, or machinery, although he authorized their use, they are not ways, works, or machinery connected with or used in his business within the meaning of this clause. It has been held upon this ground that an employer was not liable under the act for an injury resulting to his employee from a defect in a track owned and controlled by another company, which connected with its own, 3 1 Trask v. Old Colony Railroad, 156 Mass. 298 (1892). 2 156 Mass. 298 (1892), at page 303. 8 Engel v. New York, etc. Railroad, 160 Mass. 260 (1893). THE LIABILITY OP EMPLOYERS. 151 even though the defect was at the very point of connection ; 1 nor, again, for a defect in the premises of a third person, where he had sent his employee to work. 2 In Eiigel v. New York, etc. Railroad, 3 the court says upon this point : " Neither the language of the statute nor good sense would permit us to hold an employer liable under the act for defects which he cannot help, in a place out of his control, to which his employees once in a while may be called for a few minutes." So also, on the other hand, if it appears that the article was used without the authority of the em- ployer, although it was under his control, the case does not come within the clause. Thus it has been held that an employer was not liable under the act for an injury occurring to an employee by reason of a defect in a ladder wnich had been borrowed without the knowledge of the employer and brought upon his premises, and was being used in his business without his authority. 4 145. Application of the Rule to Foreign Cars. It is the accepted construction that cars coming from, and owned by, other railroads, which are to be hauled over the defendant's road, in the due course of its business, for the transportation of the freight contained therein, are a part of its ways, works, or machinery within the meaning of this 1 Trask v. Old Colony Railroad, 156 Mass. 298 (1892). 2 Regan v. Donovan, 159 Mass. 1, 3 (1891). 8 160 Mass. 260 (1893), at page 261. * Jones v. Burford, 1 Times Law Reports, 137 (1884). 152 STATUTORY TORTS IN MASSACHUSETTS. clause. 1 In the application of this rule, however, a distinction was made in the case of a car which had delivered its freight and had been returned to the yard at the defendant's terminus, where, hav- ing been shunted off from the rest of the train, it was running by itself, when the accident happened, to a position where it could be re-delivered to its owner. 2 Such an isolated, empty car, it was held, could not fairly be considered to be an appliance furnished by the employer for the carrying on of its business. The provisions of the amendment of 1893 3 seem to have sufficiently broadened the general rule of construction to eliminate this dis- tinction. " WHICH AROSE FROM." 146. Effect of the Provision. These words place no new or additional burden upon the em- ployee. He must show under the statute, as at common law, that the defect which caused the injury owed its existence to the breach of a duty on the part of the employer, to the breach of a duty owed to himself. But the act has extended the duties of employers, and has thus, of course, 1 Bowers v. Connecticut River Railroad, 162 Mass. 312 (1894). 2 Coffee v. New York, etc. Railroad, 155 Mass. 21 (1891). s St. 1893, ch. 359, s. 1, amending St. 1887, ch. 270, s. 1, as amended by St. 1892, ch. 260, by adding at the end thereof the following words : " A car in use by or in the possession of a rail road company shall be considered a part of the ways, works or machinery of the company using or having the same in possession, within the meaning of this act, whether such car is owned by it or by some other company or person." THE LIABILITY OF EMPLOYERS. 153 made possible new breaches of duty, of which the employee can avail himself. 1 " OR HAD NOT BEEN DISCOVERED OR REMEDIED." 147. Discovered or remedied. The mere fact that there was a defect and that it was the legal cause of an injury is not enough, by reason of the requirements of this provision, to fix the liability under this clause. It must further appear that the defect was of such a nature that the employer or the person intrusted by him with that duty might have discovered and removed it. Moreover, although the word " or " is used in the provision, discovered or remedied, evidence going to show that the employer might have discovered the dan- gerous condition will not sustain the burden of proof upon this point, if it also appears that he had not the right to remedy it. 2 The power to discover and the right to remedy must be shown to have coexisted. 148. Remedied. This word as here used is given a liberal, and at the same time somewhat unusual, meaning. The object of the clause is obvi- ously to impose a liability where an injury results from a danger that might have been removed, but was not, owing to negligence. This consideration furnishes a key to the interpretation that has been adopted. Remedied " does not mean that the machine must have been made perfect for working 1 McPhee r. Scully, 163 Mass. 216 (1895). 8 Engel i?. New York, etc. Railroad, 160 Mass. 260 (1893). 15-1 STATUTORY TORTS IN MASSACHUSETTS. purposes, but that its dangerous condition must have been ended." Any device, whether of a temporary or a permanent nature, that will bring about such a result, will satisfy this meaning. 1 4 ' OWING TO THE NEGLIGENCE OF THE EMPLOYER." 149. The Duty to furnish and maintain Safe Appliances. -This clause of the statute has made no change in the common law duties of employers : whatever was negligence on the part of the em- ployer at common law, is negligence on the part of the employer under the act. He is bound, therefore, to use reasonable care both in furnishing ways, works, and machinery safe and suitable for the work to be done, and in keeping them in proper condition. 2 This duty has, however, certain recognized limits ; it is not every failure to provide safe appliances or to keep them in proper order that will render an employer liable under this clause. 3 Thus " the absolute obligation of an employer to see that due care is used to provide safe appliances for his workmen is not extended to all the passing risks which arise from short lived causes," such, for instance, as the dampness of moulds used in a foundry. 4 And again, this duty does not require 1 Willey v. Boston Electric Light Co., 168 Mass. 40, 42 (1897). 2 Holden v. Fitchburg Railroad, 129 Mass. 268 (1880), and cases cited. 8 McCann v. Kennedy, 167 Mass. 23 (1896). Whittaker v. Bent, 167 Mass. 588 (1897). 1 Whittaker v. Bent, 167 Mass. 588, 589 (1897). THE LIABILITY OF EMPLOYERS. 155 the employer to adopt the latest improvements in machinery, 1 nor to make use of new contrivances, even though, if adopted, they would render his ways, works, or machinery more safe. 2 Moreover, when he has once furnished safe and proper appliances for the conduct of his business, he is under no obligation to see that they are used, and consequently is not responsible in damages to an employee who is injured through a failure to use them. 3 150. The Duty of inspection. An employer is bound to use reasonable care and diligence in order to discover any defects that may exist in his ways, works, or machinery : he is not an insurer of their condition, and cannot be held responsible for hidden defects in them that could not be dis- covered by the most careful inspection. 4 This common law rule is expressly retained under the act ; the employer is made liable by its terms only for defects that "had not been discovered or rem- edied " by reason of his negligence. He is not, therefore, liable in an action based upon the statute for defects in the original construction of works 1 See O'Maley v. South Boston Gas Light Co., 158 Mass. 135, 137 (1893). 2 Ross v. Pearson Cordage Co., 164 Mass. 257 (1895). Gleason v. New York, etc. Railroad, 159 Mass. 68 (1893), semble. Fisk v. Fitchburg Railroad, 158 Mass. 238 (1893), semble. Allen v. Smith Iron Co., 160 Mass. 557 (1894). 4 Ladd v. New Bedford Railroad Co., 119 Mass. 412 (1876), point 1, and cases cited. Spicer v. South Boston Iron Co., 138 Mass. 426 (1885). 156 STATUTORY TORTS IN MASSACHUSETTS. or machinery which belong to third parties but which become temporarily a part of his works or machinery, as cars received from other railroads, provided he has used reasonable care to inspect them and to discover the defects. 1 In this connection it is to be remembered that the negligence of the car inspector is, under the act, the negligence of the employer, since he is the person intrusted by the latter with the per- formance of this duty. ' ' OR OF ANY PERSON IN THE SERVICE OF THE EM- PLOYER AND ENTRUSTED BY HIM WITH THE DUTY OF SEEING THAT THE WAYS, WORKS OR MACHINERr WERE IN PROPER CONDITION." 151. The Provision enlarges the Common Law Liability. The plain result of this provision is an extension of the common law liability of employers. This is brought about by making the employer stand in the shoes of the employee whom he has charged with the performance of the particular duty here specified. In other words, a right of action which at common law existed only against the negligent employee, is turned against the em- 1 Thyng v. Fitchburg Railroad, 156 Mass. 13 (1892). Likewise, it is the employer's duty, when he sets an employee to work in a place of danger, to give him such notice and in- struction as may reasonably be necessary, taking into consideration the youth, inexperience, or want of capacity of the employee ; and if he fails to so do, he is responsible for the injury suffered in consequence of such neglect. Atkins v. Merrick Thread Co., 142 Mass. 431 (1886); and see, also, Sullivan v. India Manufacturing Co., 113 Mass. 396 (1873). THE LIABILITY OF EMPLOYERS. 157 plover. This operation of the clause, it may be observed, does not extend beyond those cases that fairly come within the terms of this provision. 1 Only the negligence of the particular employees charged therewith, occurring in the course of the performance of the single duty of seeing that the ways, works, or machinery were in proper condi- tion, is made the negligence of the employer ; all other classes of negligent acts of which employees may be guilty are left on the old common law foot- ing. Thus no action can be maintained under this clause for an injury due to the negligence of a fellow employee in using appliances that were in proper condition. 2 152. Person intrusted. This provision of the clause is silent as to the grade of the employee who may be intrusted with the duty therein specified. Whether it be inferior or superior to that of the injured employee seems, therefore, to be wholly immaterial. Moreover, there is nothing in the wording of the provision to require the construc- tion that the duty of seeing that the ways, works, or machinery were in. proper condition should be his sole duty ; it may well be only a part, even a very small part, of his duty. But the essential thing is that the employee should be intrusted by the employer with the performance of this par- 1 See 118 and 130, ante. 2 Ashley v. Hart, 147 Mass. 573 (1888). For suggestions as to the form of declarations under this first clause, see Conroy v. Clinton, 158 Mass. 318 (1893). Bowers v. Connecticut River Railroad, 162 Mass. 312 (1894). 158 STATUTORY TORTS IN MASSACHUSETTS. ticular duty should be a person selected to hold this position of responsibility. SECTION 1, CLAUSE 2. By reason of the negligence of any person in the service of the employer, entrusted with and exercising superintendence, whose sole or principal duty is that of superintendence, or, in the absence of such superintendent, of any person acting as superintendent with the authority or consent of such employer ; or l 153. General Effect of the Clause. The duty of an employer relative to superintendence, at com- mon law, is simply to select and retain in his ser- vice a man competent to oversee his work. He is bound to exercise due care and diligence in mak- ing such selection and retention, but with that his obligation ceases ; he is not an insurer of the com- petence of the man so selected and retained. 2 The sole ground of common law liability in this direc- tion, therefore, is a failure to use reasonable care and diligence in these two particulars ; since the superintendent and the employee under him are fellow servants, 3 the doctrine of common employ- ment relieved the employer from all legal responsi- bility to his employees for the superintendent's negligent acts. 4 1 The clause is here given as amended by Acts 1894, ch. 499. 2 Tarrant v. Webb, 18 C. B. 797. s See Kogers v. Lndlow Manufacturing Co., 144 Mass. 198, 203 (1887). * Zeigler v. Day, 123 Mass. 152 (1877). Floyd v. Sugdeu, 134 Mass. 563 (1883). THE LIABILITY OP EMPLOYERS 159 The provisions of the second clause of this sec- tion have revolutionized this branch of the com- mon law of master and servant, in the cases to which they apply. The obvious purpose was to prevent the employer from freeing himself from all further liability by appointing a competent man to take charge of his business. 1 This purpose is accomplished, as was the case with the preceding clause, by making the employer directly liable for the negligent acts of the person " entrusted with and exercising superintendence, whose sole or principal duty is that of superintendence," thus incidentally abolishing the fundamental principle upon which his immunity at common law in such cases rested. The net result of the operation of the clause is, then, that the superintendent is no longer to be regarded as the fellow servant of the employees under him, in those cases that come within the statute, but as the personal representa- tive of the employer, who stands in his place and performs his duties. " By REASON OF THE NEGLIGENCE OF ANY PERSON IN THE SERVICE OF THE EMPLOYER." 154. The Negligence of the Superintendent. What is negligence on the part of a superintendent under this clause is, of course, to be determined according to common law principles. It may be sufficient, therefore, to simply state the general proposition that the negligent acts of a superin- 1 Malcolm v. Fuller, 152 Mass. 160, 165 (1890). 160 STATUTORY TORTS IN MASSACHUSETTS. tendent, for which the employer can be held liable, are of two kinds : first, they may consist of some positive negligent acts, as the giving of an im- proper order, 1 or the continuing of the work under dangerous conditions; 2 or, second, they may con- sist of a failure to act under circumstances that called for some positive action of a precautionary nature. 3 155. The Negligence of the Superintendent need not be the Sole Cause of the Injury. In order to recover for the negligence of the superintendent under this clause, it is not necessary to show that it was the sole cause of the accident. An employer cannot, therefore, escape liability under the act for the negligence of his superintendent by show- ing that acts of his own also contributed to the injury. 4 " ENTRUSTED WITH AND EXERCISING SUPERINTEND- ENCE." 156. What is a Superintendent. For the pur- poses of this statute, a superintendent has been defined as " a man having the control, with the power of authority. That is to say, when he speaks, the workmen are to obey, not because he advises them, or requests them, or hopes they will, but because, by virtue of his position, they have 1 McPhee v. Scully, 163 Mass. 216, 218 (1895). 2 Connolly v. Waltham, 156 Mass. 368, 370 (1892). 8 McCauley v. Norcross, 155 Mass. 584 (1892). Carroll v. Willcntt, 163 Mass. 221, 224 (1895). 4 Connolly v. Waltham, 156 Mass. 368 (1892), point 1. THE LIABILITY OF EMPLOYERS. 161 agreed to obey him. That is the nature of his authority. He is entitled to obedience." 1 It has been held, accordingly, that an ordinary weaver, whose usual work was to operate a loom, was not a superintendent within the meaning of the statute, merely because it was also a part of her duty to notify the loom-fixer when her loom was out of repair. 2 157. He must be the Person intrusted with Superintendence. In order to charge an employer with the negligence of a third person under this clause, it is not enough to show simply that such person was, at the time of the negligent act, over- seeing workmen who were engaged in doing work for the defendant upon his premises. 3 There must be some evidence tending to show that he was the person intrusted by the employer with the super- intendence of those workmen. The average case presents little or no difficulty upon this point, but there is a somewhat perplexing class of cases where it is not clear upon the facts whether the position of the third person with reference to the defendant is that of an independent contractor, or of a person intrusted with superintendence. 4 A decisive test for the determination of the point in that class of cases is : Whether, upon all the 1 Per Mr. Justice Hammond in his charge to the jury, Malcolm v. Fuller, 152 Mass. 160, 163 (1890). 2 Roseback v. Aetna Mills, 158 Mass. 379 (1893). 8 See Dane r. Cochrane Chemical Co., 164 Mass. 453 (1895). * Dane v. Cochrane Chemical Co., 164 Mass. 453 (1895). .11 162 STATUTORY TORTS IN MASSACHUSETTS. evidence, the relation between the plaintiff l and the defendant was that of employer and employee. That this element of being " entrusted with " superintendence was wanting appears to be the real ground of the decision in the case of Dane v. Cochrane Chemical Co. 2 That was a case where the plaintiff, the workman, was injured by the negligent act of A, the person who had charge of the work, and sought to hold the defendant re- sponsible for the consequences of that negligence. It appeared in evidence that the defendant em- ployed A, under a continuing contract, to do all of the work of a certain kind upon its premises, and paid him so much therefor in addition to the pay of each man that he hired to perform the labor ; that the defendant furnished the materials for the work and gave to A all the necessary directions for its performance, but left him entirely free to employ his own workmen, of whom the plaintiff was one, to superintend, pay, and discharge them as he saw fit ; that the defendant kept all of its accounts with A, and none with the workmen ; it was held that the defendant was not liable under this clause for the negligence of A, on the ground that the facts failed to establish the relation of employer and employee between the plaintiff and the defendant. In other words, the defendant had never intrusted A with any superintendence over the plaintiff as one of its employees. 1 The plaintiff in the case being, of course, the injured workman. 2 164 Mass. 453 (1895). THE LIABILITY OP EMPLOYERS. 163 Qucere, whether an employer would be liable for the negligence of his foreman in doing an act that was properly one of superintendence, but was outside the scope of the superintendence, which had been intrusted to him. 1 The fair meaning of the words " intrusted with " as here used would seem to favor a negative view of the question. And the justice of such a construction is apparent when it is considered that a superintendent is selected with reference to his fitness for the duties that he is employed to perform, and that he may have no qualifications for overseeing other matters which may, incidentally or otherwise, be a part of the employer's business, and which he may, purely as a volunteer, undertake to superintend. 2 158. He must be a Person exercising Superin- tendence. To meet the requirements of this pro- vision of the clause, the negligence of the third person must occur while he is actually in the exercise of the superintendence with which he has been intrusted. 3 In other words, the negligent act must be not only the act of a person intrusted 1 Mahoney v. New York, etc. Railroad, 160 Mass. 573 (1894), appears to have been such a case ; this particular point was not raised, however. 2 The discussion in Shea v. Wellington, 163 Mass. 364, 370 (1895), upon a kindred topic, may serve to throw light upon this question also. Whether the plaintiff's injury was due to the negligence of a "person in the service of the employer, intrusted with and exercis- ing superintendence," is a question for the jury. See Cavagnaro v. Clark, 171 Mass. 359, 365 (1898). 8 Cashman v. Chase, 156 Mass. 342 (1892). 164 STATUTORY TORTS IN MASSACHUSETTS. with superintendence, but itself an act of superin- tendence. As was said by Mr. Justice Barker in Cashman v. Chase : 1 " The employer is not answerable for the negligence of a person in- trusted with superintendence, who at the time, and in doing the act complained of, is not ex- ercising superintendence, but is engaged in mere manual labor, the duty of a common workman. The law recognizes that an employee may have two duties : that he may be a superintendent for some purposes, and also an ordinary workman, and that if negligent in the latter capacity the employer is not answerable. Unless the act itself is one of direction or of oversight, tending to control others and to vary their situation or action because of his direction, it cannot fairly be said to be one in the doing of which the person intrusted with superintendence is in the exercise of superintend- ence." Whether or not the superintendent was exercis- ing superintendence in the act that caused the injury may be a question for the jury to determine. 2 " WHOSE SOLE OR PRINCIPAL DUTY is THAT OF SUPERINTENDENCE." 159. Sole or Principal Duty. Assuming that a plaintiff has established the point that the negli- gent third person was a superintendent within this clause, then comes the inquiry : Was superintend- ence his. sole or principal duty ? It is to be noticed 1 156 Mass. 342, at page 344 (1892). 2 See Green v. Smith, 169 Mass. 485, 491 (1897). THE LIABILITY OP EMPLOYERS. 165 that the descriptive words of this phrase are used ill the alternative. Provision is thus made for two classes of cases : the one where it appears upon the evidence that superintendence was the sole duty of the person intrusted with and exer- cising it ; the other where it appears that super- intendence was his principal duty. According to the interpretation put upon them by the court, the words " principal duty " mean chief duty in point of time, rather than highest duty in point of grade. 1 160. Superintendence as a Sole Duty. Whether or not superintendence is a sole duty appears to depend altogether upon the commission that is given to the superintendent. What is his employment ? What is expected of him ? If he is hired solely to oversee the work that is to be done, and no manual labor is expected of him, then it would seem that superintendence is his sole duty within the meaning of this provision, even though, simply as a volunteer, he occasionally does acts of manual labor ; but otherwise if he is also required to do manual labor. A consequence of the establishment of the fact that superintendence was the foreman's sole duty is that no question can be raised in such a case as to the capacity in which he acts when he gives directions to the workmen in the course of the business. He is at no time a common workman, but at all times a superintendent. Therefore, 1 See O'Neil v. O'Leary, 164 Mass. 387, 390 (1895). 166 STATUTORY TORTS IN MASSACHUSETTS. when he gives directions as to the work, they are always more than mere assurances of a fellow workman ; it is not possible to interpret them otherwise than as the orders of a superintendent. Hence if superintendence is the foreman's sole duty, the employer is answerable under this clause for all of his directions to the workmen in the course of the business that are negligently given, and as well for all that are negligently omitted under circumstances that called for some positive orders. 1 161. Superintendence as a Principal Duty. If it appears upon the evidence in any given case that the superintendent was expected not only to oversee the work, but also to do manual labor, then comes the question whether or not superin- tendence was his principal .duty. To bring a case within the provision as it is interpreted by the court, 2 it is clear that it is not enough to show that he was at the time of the accident performing acts usually done by a superintendent, which it was a part of his duty to perform. On the other hand it is perhaps equally clear that evidence tending to show that he also performed manual labor is not conclusive against the plaintiff. 8 The vital question is : How much manual labor, in point of the time spent upon it, was he required to perform ? Upon one side or the other of this question, all of the cases range themselves. Thus, 1 Cavagnaro v. Clark, 171 Mass. 359, point 2 (1898). 2 See 159, ante, second paragraph. 8 Reynolds v. Barnard, 168 Mass. 226, point 2 (1897). THE LIABILITY OF EMPLOYERS. 167 if it appears that a man is set to work with a gang of men, and is expected to do his share of the manual labor, he is held not to be a person whose principal duty is that of superintendence within the meaning of this clause, even though it is also a part of his duty to perform some acts that are con- sistent with superintendence. 1 But if, on the other hand, a man is placed in charge of a gang of work- men, and is expected to determine the manner in which they shall do the work and to direct them as to it, he is a person whose principal duty is super- intendence, although he may at times take hold with his own hands and assist in the perform- ance of the manual labor. 2 Whether or not superintendence was his prin- cipal duty is, therefore, a question of fact for the jury to decide upon all the evidence in the case. 3 1 Cashman v. Chase, 156 Mass. 342 (1892). O'Connor v. Neal, 153 Mass. 281, 283 (1891). Malcolm v. Fuller, 152 Mass. 160, 163 (1890), semble. O'Brien v. Eideout, 161 Mass. 170 (1894). Dowd v, Boston & Albany Railroad, 162 Mass. 185 (1894). O'Neal v. O'Leary, 164 Mass. 387, 389 (1895). Adasken v. Gilbert, 165 Mass. 443, 445 (1896). Roseback v. Aetna Mills, 158 Mass. 379 (1893). Cunningham v. Lynn & Boston Street Railway, 170 Mass. 298(1898). 2 Malcolm v. Fuller, 152 Mass. 160 (1890). Davis v. New York, New Haven, etc. Railroad, 159 Mass. 532, 535 (1893). Prendible v. Connecticut River Manuf. Co., 160 Mass. 131, 138 (1893). Gardner r. New England Telephone, etc. Co., 170 Mass. 156 (1898). O'Brien v. Look, 171 Mass. 36 (1898). Riou v. Rockport Granite Co., 171 Mass. 162 (1898). 3 Geloneek v. Dean Steam Pump Co., 165 Mass. 202,216 (1896). Crowley v. Cutting, 165 Mass. 436 (1896). Malcolm v. Fuller, 152 Mass. 160 (1890). As to the wages paid to the alleged super- 168 STATUTORY TORTS IN MASSACHUSETTS. Although it appears upon all the evidence that superintendence was the foreman's principal duty, there are still one or two questions that may affect the employer's liability for his negligent acts. First, in what capacity was he acting when he did the negligent act ? In his capacity as a superin- tendent or in that as a fellow workman ? Since he occupies this dual position, his negligent direc- tions to the workmen, though in their character acts of superintendence, may be as a matter of fact capable of interpretation either as the orders of a superintendent or as the assurances of a fel- low workman. And if they are in fact the latter, the employer will not be liable for their con- sequences under this clause. 1 Again, assuming that he was acting in the capacity of a superintendent, was the negligent act in its character an act of superintendence, or merely an act of manual labor ? It has been held upon this question that if " there was nothing in it involving any control over or direction to or oversight of any other workman, or requiring any skill, or distinguishing it from any other act of manual labor," it could not be regarded as an act of superintendence for which the employer would be responsible under this clause. 2 intendent as evidence upon this issue, see O'Brien v. Look, 171 Mass. 36,41 (1898). 1 Whittaker v. Bent, 167 Mass. 588 (1897), and see also the discussion in Cavagnaro v. Clark, 171 Mass. 359, point 2 (1898). 2 Riou v. Rockport Granite Co., 171 Mass 162 (1898). Fljun v. Boston Electric Light Company, 171 Mass. 395 (1898). THE LIABILITY OF EMPLOYERS. 169 162. The Limits of the Operation of the Clause. There are certain limits to the general scope of this clause that are fairly well defined. The law recognizes that every employer owes to his em- ployees certain duties, upon the performance of which their safety very largely depends. He is bound to take all of those ordinary and usual pre- cautions that common experience has shown to be necessary in order to protect them from the com- mon dangers of their employment, but he is not required to go further, either personally or by his superintendent. It can, therefore, be laid down as a general proposition that an employer is not liable under this clause for the consequences of a negligent act of his superintendent, though such act may properly be in its character an act of superintendence, as to matters outside the scope of his duties toward his employees, unless it clearly appears that he has undertaken to do by his superintendent that which he was not called upon to do. 1 It has been held, thus, that since no duty rests upon the employer to inspect the exploders used in blasting in his quarries, he is not liable under this clause if his superintendent undertakes to inspect them, and is negligent in so doing. 2 And 1 Shea v. Wellington, 163 Mass. 364, 370 (1895). McCann v. Kennedy, 167 Mass. 23 (1896). Burns v. Washburn, 160 Mass. 457, 458 (1894). Fitzgerald v. Boston & Albany Railroad, 156 Mass. 293, 295 (1892). 2 Shea v. Wellington, 163 Mass. 364, 370 (1895). 170 STATUTORY TORTS IN MASSACHUSETTS. again, as an employer's duty to look out for the safety of his employees does not extend to every possible risk to which they may be exposed, it has been held that he cannot be charged with the negligence of his superintendent in failing to warn them of momentary, passing dangers, in those cases where the employees know the likelihood, though perhaps not the exact time, of their occur- rence. 1 But if it is a part of the duty of the super- intendent to do certain specific acts for the pro- tection of the employees in his charge, such as the giving of a warning on the approach of danger, they have a right to rely upon his doing those acts, and can recover from the employer for injuries resulting from a neglect of this duty. This rule applies especially to those cases where the duties of the employees are such as to prevent them from protecting themselves from the dangers in question. 2 1 McCann v. Kennedy, 167 Mass. 23 (1896). 2 Davis v. New York, New Haven, etc. Railroad, 159 Mass. 532, 535 (1893). See also Hennessy v. Boston, 161 Mass. 502 (1894), and Mahoney v. New York, etc. Railroad, 160 Mass. 573,579 (1894). For suggestions as to form for declaration under clause two, see Malcolm v. Fuller, 152 Mass. 160 (1890). Fitzgerald U.Boston & Albany Railroad, 156 Mass. 293 (1892). O'Brien v. Rideout, 161 Mass. 170 (1894). Dane v. Cochrane Chemical Co, 164 Mass. 453 (1895). The question of the negligence of the superintendent under various sets of circumstances was discussed in the following cases : Sullivan v. Lally, 166 Mass. 265 (1896). Gagnon v. Seaconnet Mills, 165 Mass. 221 (1896). Crowley v. Cutting, 165 Mass. 436, THE LIABILITY OF EMPLOYERS. 171 SECTION 1, CLAUSE 3. By reason of the negligence of any person in the service of the employer who has the charge or control of any signal, switch, locomotive engine or train upon a railroad, the employee, or in case the injury results in death the legal representatives of such employee, shall have the same right of com- pensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer, nor engaged in its work. 163. General Effect of the Clause. It is ele- mentary law that an employee injured in conse- quence of the negligence of such a person as is described in this clause had no remedy before the passage of the Employer's Liability Act, against his employer. 1 The fellow-servant doctrine served as an effectual bar to any recovery in such a case. This provision of the statute has, therefore, still further enlarged the liability of employers. It has shifted to their shoulders a burden that at common law rested only upon the negligent fellow employee. Thus, as in the case of the second clause, this clause in effect takes the particular class of employees 438 (1896). Perry v. Old Colony Railroad, 164 Mass. 296, 300 (1895). McPhee v. Scully, 163 Mass. 216, 218 (1895). Carroll v. Willcutt, 163 Mass. 221, 224 (1895). Hennessy v. Boston, 161 Mass. 502 (1894). Tremblay v. Mapes-Reeve Construction Co., 169 Mass. 284 (1897). Scullane v. Kellogg, 169 Mass. 544 (1897). Dean v. Smith, 169 Mass. 569 (1897). Fleming v. Elston, 171 Mass. 187 (1898). Gouin v. Wampanoag Mills, 172 Mass. 222 (1898). 1 Farwell v. Boston & Worcester Railroad Co., 4 Met. 49 (1842). 172 STATUTORY TORTS IN MASSACHUSETTS. which it describes out of the common law category of fellow servants to a certain extent, and to that extent makes the employers directly responsible for certain of their negligent acts. 164. The Scope of the Clause. This third clause has a more restricted field for its operation than the preceding clauses, both by reason of the nature of its subject-matter and by reason of the construction given to it. As to the subject-matter, it is plain that it is of such a nature that it can apply, not to employ- ers in general, but only to a particular class of employers. This fact alone serves of course to materially abridge its field of operation. The construction placed upon its terms by the court has still further limited its scope. The rule as to the construction of statutes in derogation of the common law l is, it seems, to be more strictly applied to the provisions of this clause. They are construed, therefore, as imposing a liability upon the employer only for the negligence of an em- ployee in the management of the particulars which are specifically mentioned in it as being in the charge or control of such employee : it does not enlarge the common-law liability as to the manage- ment of any other matter. 2 And further, the clause is construed as imposing a liability upon the employer only for the negligence of an em- ployee in the charge or control of a " signal, 1 See Gibson v. Jenney, 15 Mass. 205 (1818). 2 Thyng v. Fitchburg Railroad, 156 Mass. 13, 18 (1892), semble. THE LIABILITY OP EMPLOYERS. 173 switch, locomotive engine or train," when com- pleted and used as a whole : it does not apply to negligence in. the management of any of them while in the process of construction. 1 This latter point is illustrated in Thyng v. Fitchburg Rail- road. 2 In that case it appeared that the employee, a brakemau, was injured by the breaking apart of the freight train upon which he was riding in the performance of his duty, while in transit from one station to another ; and that the train broke apart by reason of the negligence of the conductor of a switch engine in making up the train in the freight yard. It was held that the injury was not due to the'negligence of any person in charge or control of the train within the meaning of this clause, on the ground that the conductor of the switch engine never had the charge or control of the train as a whole. " BY REASON OF THE NEGLIGENCE OF ANY PERSON IN THE SERVICE OF THE EMPLOYER." 165. Who comes within the Meaning of this Provision. This provision does not require that the person who has the charge or control should be a conductor or an engineer, or that he should have any particular official position. It is the negligence of " any person" who has the charge or control of the matters specified, even though he has it only for the time being and for a temporary 1 Thyng v. Fitchburg Railroad, 156 Mass. 13, 17 (1892). 156 Mass. 13, 17 (1892). 174 STATUTORY TORTS IN MASSACHUSETTS. purpose. As a matter of construction, therefore, and without the aid of legislative enactment, 1 the case is brought within the clause where a train was backing down with only an engineer and a brakeman in charge or control, it being the duty of the latter to see that there was no obstruction upon the track and to stop the train or to give a warning in case of danger, and the plaintiff was injured by reason of the negligence of the brakeman in the performance of those duties. 2 " WHO HAS THE CHARGE OR CONTROL." 166. Charge or Control. Although the de- scriptive words of this provision are used in the alternative, the distinctive meaning of the two words is not given effect. As interpreted by the court, the important word of the two is " charge : " the word " control " is assimilated to it in mean- ing. It is not, the court holds, that the two words are to be regarded as exactly synonymous, but " as explanatory of each other, and used together for the purpose of describing more fully one and the same thing." 3 This construction, when applied to a " train," must bar out of the statute, it seems, that class of cases where an injury results in consequence of the negligent management of the train by some subordinate member of the train gang, who had at 1 St. 1897, ch. 491, s. 2. See 166. 2 Steffee v. Old Colony Railroad, 156 Mass. 262 (1892). 8 Caron v. Boston & Albany Railroad, 164 Mass. 523, 527 (1895> THE LIABILITY OP EMPLOYERS. 175 the time the physical power to direct its move- ments, but not the right to exercise that power save under the immediate orders of his superior. 1 This result does not follow, of course, from the fact that the negligent employee was a subordinate ; he may be a subordinate and yet have the " charge or control " of the train. 2 The distinction between the two classes of cases the one falling with- out the clause and the other within appears to be the distinction between the mere physical power to manage the train, and that power coupled with the right or duty to exercise it. That is, in the first class of cases the negligent employee has simply the physical power to direct the movements of the train, without the right or duty of exercising it, save as he is ordered so to do by his superior ; while in the second class of cases the negligent employee has, not alone the physical power to manage the train, but also the right and duty of so doing at his own discretion untrammelled by the particular control of a superior. The legislature has defined " a person in charge or control " in the following language : 3 1 See instructions to the jury, Devine v. Boston & Albany Railroad, 159 Mass. 348, 349 (1893). 2 Steffee v. Old Colony Railroad, 156 Mass. 262 (1892). And see 165. 8 St. 1897, ch. 491, s. 2. " By the words ' any person . . . who has the charge or con- trol ' is meant a person who, for the time being at least, has im- mediate authority to direct the movements and management of the train as a whole, and of the men engaged upon it." Caron v. Boston & Albany Railroad, 164 Mass. 523, 528 (1895). 176 STATUTORY TORTS IN MASSACHUSETTS. " Any person who, as a part of his duty for the time being, physically controls or directs the move- ments of a signal, switch or train shall be deemed to be a person in charge or control of a signal, switch or train within the meaning of clause three of section one of chapter two hundred and seventy of the acts of the year eighteen hundred and eighty- seven and acts in addition thereto or in amend- ment thereof." It may be observed in passing that this legisla- tive definition is not applied specifically to a " locomotive engine." 167. The entire " Charge or Control " need not be in one Person. It does not follow from the construction given to this provision that the entire " charge or control " of a train must be vested in only one person at a time. It may, on the con- trary, be vested in at least two persons at the same time. It has been held, thus, that for some pur- poses the " charge or control " of a train is to be regarded as vested in the conductor, 1 , while for other purposes, as for giving signals or for slack- ening speed on the approach to danger, it is to be considered as vested in the engineer. 3 168. Person in " Charge or Control " need not be upon the Train. It is not necessary, in order to bring a case within the accepted meaning of this 1 Donahoe v. Old Colcmy Railroad, 153 Mass. 356 (1891). Devine v. Boston & Albany Railroad, 159 Mass. 348 (1893). 2 Davis v. New York, New Haven, etc. Railroad, 159 Mass. 532 (1893). THE LIABILITY OP EMPLOYERS. 177 provision, to show that the person alleged to have been in " charge or control " of the train was actually upon it, 1 or even near to it, 2 at the time of the accident, provided it is moved under, and in accordance with, his directions. It has been held accordingly that where, by the orders of the conductor who stood near by and operated the switch, two cars were uncoupled from the engine and shunted on to a siding with too great force, in consequence of which the brakeman upon them was injured, the conductor was so far in " charge or control " of the train as to render the railroad company liable for the brakeman's injury. 3 So also where the conductor left his train at Hyde Park in order to perform there certain duties incident to his employment, and meanwhile by his directions the train proceeded to Reedville, a short distance beyond, for the purpose of taking on certain empty cars, and the plaintiff was in- jured during this operation, it was held that the conductor was still in " charge or control " of the train at the time when the accident happened, within the meaning of this clause. 4 " OF ANT SIGNAL, SWITCH, LOCOMOTIVE ENGINE OK TRAIN." 169. Meaning of the Provision. It seems that this clause applies only to a signal, switch, locomo- 1 Devine v. Boston & Albany Railroad, 159 Mass. 348 (1893). 2 Donahoe v. Old Colony Railroad, 153 Mass. 356 (1891). 8 Devine v. Boston & Albany Railroad, 159 Mass. 348 (1893). * Donahoe v. Old Colony Railroad, 153 Mass. 356 (1891). 12 178 STATUTORY TORTS IN MASSACHUSETTS. tive engine, or train as a whole. The negligence of any person in " charge or control " of any of these matters while in the process of construction would not, therefore, come within the statute. 1 170. What constitutes a "Train." In Dacey v. Old Colony Railroad, 2 Mr. Justice Knowlton, speaking for the court upon this subject, said : " We think a locomotive and one or more cars connected together and run upon a railroad con- stitute a train within the meaning of that word as used in the statute." It was subsequently held that it was not essential to the definition that the cars should, at the time of the accident, be moving by direct power from the engine, it was enough if they were moving by their own momentum. It is not necessary, therefore, that there should be a locomotive attached to the cars at the moment when the accident happens. 3 In the light of this decision the court in a subsequent case defined a train as " a number of cars coupled together, form- ing one connected whole and moving from one point to another upon a railroad, in the ordinary course of its traffic, under an impetus imparted to them by a locomotive which shortly before the accident had been detached." 3 1 See Thyng v. Fitchburg Railroad, 156 Mass. 13, 18 (1892). " The language of the statute seems to us clearly to show that a person having control of a switch is not a person in charge or control of a train." Fairman v. Boston & Albany Railroad, 169 Mass. 170, 177 (1897). 2 153 Mass. 112, 115 (1891). 8 Caron v. Boston & Albany Railroad, 164 Mass. 523, 527 (1895). THE LIABILITY OF EMPLOYERS. 179 The legislature has defined a train as fol- lows: 1 " One or more cars in motion, whether attached to an engine or not, shall constitute a train within the meaning of clause three of section one of chapter two hundred and seventy of the acts of the year eighteen hundred and eighty-seven and acts in addition thereto or in amendment thereof." The chief contribution to the subject made by this act appears to be that it settles the question as to the number of cars which may constitute a " train." "UPON A RAILROAD." 171. Construction of the Word "Railroad." This term is given a popular, rather than a strict, interpretation. Its meaning, therefore, is not con- fined to railroads owned and operated by railroad corporations, but includes whatever may popularly be termed a railroad. Hence, the length or per- manence of the track is not material : although it be short, and laid and used by a contractor for a temporary purpose only, it is a railroad within the meaning of the word as here used. 2 Furthermore, these words are interpreted to mean a railroad upon which the engines and trains are operated and run, or were " originally intended to be operated and run in some manner and to some extent by steam." It has been held, there- i St. 1897, ch. 491, s. 1. * Coughlan v. Cambridge, 166 Mass. 268 (1896). Doughty . Firbank, 10 Q. B. D. 355 (1883). 180 STATUTORY TORTS IN MASSACHUSETTS. fore, that a car of a street railway operated by electricity in the manner in which cars upon street electric lines usually are, could not be regarded as a locomotive engine, or train upon a railroad within the meaning of this provision. 1 172. Construction of the Provision. It was said in Thyng v. Fitchburg Railroad 2 that the stat- ute " seems chiefly to contemplate the danger from a locomotive engine or train as a moving body, and to provide against the negligence of those who, either wholly or in part, control its move- ments." The idea there expressed largely shapes the construction to be given to this provision. In order to come within the meaning of the clause, therefore, it must appear that the locomotive engine or train was, at the time of the accident, upon the railroad track and actually used, or possibly about to be used, in the ordinary course of the company's business. This interpretation bars out of the statute the case where an employee was injured by reason of the negligent manage- ment of his engine by the engineer, in the course of certain repairs that he was making upon it while it was stalled in the roundhouse. 3 1 Fallen v. West End Street Railway, 171 Mass. 249 (1898). The court in that case further says : " Possibly a railroad, where the motive power has been changed in part or altogether from steam to electricity, or some other mechanical agency, but which retains in other respects the characteristics of a steam railroad, would come within the purview of the act." 2 156 Mass. 13, 18 (1892). 8 Perry v. Old Colony Railroad, 164 Mass. 296, 301 (1895). THE LIABILITY OP EMPLOYERS. 181 " THE EMPLOYEE, OR IN CASE THE INJURY RESULTS IN DEATH THE LEGAL REPRESENTATIVES OF SUCH EMPLOYEE." 173. Meaning of the Provision. This pro- vision is not so construed as to make the death of the employee a substantive cause of action. The legal representatives of the deceased employee are held to simply succeed to the rights and rem- edies of their testate or intestate. 1 " SHALL HAVE THE SAME RIGHT OF COMPENSATION AND REMEDIES AGAINST THE EMPLOYER AS IF THE EMPLOYEE HAD NOT BEEN AN EMPLOYEE OF NOR IN THE SERVICE OF THE EMPLOYER, NOR ENGAGED IN ITS WORK." 174. Position of an Employee suing under the Act. The language of this provision pretty clearly indicates an intention on the part of the legislature that an employee who sued under this statute should occupy a position as advantageous as, but no better than, that of any one of the public suing under the same circumstances. This posi- tion the courts have, in most respects, accorded to him. Whatever advantages the rules of law afford to one of the public in establishing a case for personal injuries, are given to the employee who sues under the act. In actions at common law for personal injuries, an employee could very rarely, if ever, make out a prima facie case by simply show- ing that the accident happened ; he was obliged to go further and to submit some evidence of 1 Ramsdell v. New York, etc. Eailroad, 151 Mass. 245 (1890). 182 STATUTORY TORTS IN MASSACHUSETTS. negligence on the part of the employer. 1 But in a suit under the statute he can avail himself of the maxim res ipsa loquitur to the same extent and with the same effect as though he had not been an employee. When, therefore, the accident is one that the exercise of ordinary care on the part of the employer would commonly prevent, evidence of the happening of the accident, without more, makes out for him a prima facie case. 2 As to the defences available against an employee who sues under the statute, it is generally conceded that all which are not based upon the relation of master and servant are still open to the employer. In this respect the employee has no better position than any stranger. 3 But, on the other hand, he is not given, in all points, so good a position. As the statute is construed, not quite all the special defences that the common law afforded to an employer are abolished : the relation of master and servant is recognized as so far continuing in existence between them that the employer can avail himself of the defence of assumption of risk 1 Duffy v. Upton, 113 Mass. 544 (1873). Reed v. Boston & Albany Railroad, 164 Mass. 129 (1895). 2 Graham v. Badger, 164 Mass. 42, 47 (1895). Hennessy v. Boston, 161 Mass. 502 (1894). Mahoney v. New York, etc. Rail- road, 160 Mass. 573, 579 (1894). Suggestions as to the form of a declaration under this clause may perhaps be found in Ramsdell v. New York, etc. Railroad, 151 Mass. 245 (1890). 8 Weblin v. Ballard, 17 Q. B. D. 122 (1886). PettingeU v. Chelsea, 161 Mass. 368 (1894). THE LIABILITY OF EMPLOYERS. 183 a defence growing directly out of the contract of employment. 1 In this single instance the nat- ural and uniform development of the law under the act appears to have been departed from. The position of the employee who sues under the statute is not, therefore, on the whole exactly that occupied by one of the public suing under the same circumstances. Nor does it appear to have any exact legal analogy the nearest approach thereto is perhaps the position occupied by an in- dependent contractor. ACTS, 1892, 2 AMENDING SECTION 1. And in case such death is not instantaneous, or is preceded by conscious suffering, said legal representatives may in the action brought under this section, except as here- inafter provided, also recover damages for such death. The total damages awarded hereunder, both for said death and said injury, shall not exceed five thousand dollars, and shall be apportioned by the jury between the legal representatives and the persons, if any, en- titled under the succeeding section of this act, to bring an action for instantaneous death. If there are no such persons then no damages for such death shall be re- covered, and the damages, so far as the same are awarded for said death, shall be assessed with refer- ence to the degree of culpability of the employer herein, or the person for whose negligence he is made liable. 1 See 122, ante. 2 St. 1892, ch. 260,8. 1. 184 STATUTORY TORTS IN MASSACHUSETTS. 175. Rights given by this Amendment. The Employer's Liability Act, as it now stands, rec- ognizes two kinds of death, and deals with each in a different manner. The provisions of this amendment, by express limitation, deal only with that kind of death which " is not instantaneous, or is preceded by conscious suffering." Under this particular division of the subject, two distinct causes of action are specified and regulated : the one for the injury, the other for the death. For both of these causes, the right of action, it will be observed, is vested in the same persons, the legal representatives of the deceased employee. The terms of the act place no limitation upon the right to sue for the conscious suffering of the deceased ; that was given by the statute as it was originally enacted, 1 and survives to the legal rep- resentatives under all circumstances. The amount of damages recovered in such suit would, it seems, become a part of the assets of the estate of the deceased, and thus be subject to the claims of creditors and legatees. On the other hand, the right of action for the death itself is expressly limited to those cases where the deceased leaves a widow or dependent next of kin. And the amount apportioned as dam- ages for this cause of action does not go to the legal representatives of the deceased, but directly to his widow or dependent next of kin. 1 Eamsdell v. New York, etc. Railroad, 151 Mass. 245 (1890). Clark v. Same, 160 Mass. 39 (1893). THE LIABILITY OF EMPLOYERS. 185 176. Effect of the Amendment. The general effect of this amendment, in so far as it makes death itself a substantive cause of action, is to bring about another wide departure from the com- mon law of master and servant, under which there was, of course, no liability for causing the death of an employee. And by so doing, it increases the liability of employers, even beyond the point reached under the original act of 1887. SECTION 2. Where an employee is instantly killed or dies without conscious suffering, as the result of the negligence of an employer, or of the negligence of any person for whose negligence the employer is liable under the provisions of this act, the widow of the deceased, or in case there is no widow, the next of kin, provided that such next of kin were at the time of the death of such employee dependent upon the wages of such employee for support, may maintain an action for damages therefor and may recover in the same manner, to the same extent, as if the death of the deceased had not been instantaneous, or as if the de- ceased had consciously suffered. 177. Subject-matter and Object of the Sec- tion. This section deals with the second kind of death recognized by the statute, namely, death that is instantaneous or without conscious suffering. It is treated differently from death that is not in- stantaneous or is preceded by conscious suffering mainly in respect to the parties in whom the right of action is vested. 1 1 See 175, ante. 186 STATUTORY TORTS IN MASSACHUSETTS. .The intention of the legislature in enacting this portion of the statute was obviously to make some provision for those persons who were dependent upon the deceased employee for support. The process that was adopted for the accomplishment of this object is both simple and direct, the widow of the deceased is given the right to main- tain in her own name an action against the em- ployer for causing the death ; or if there is no widow, then the same right is extended to any de- pendent next of kin. And the amount of damages recovered in such suit is given directly to the widow or to the dependent next of kin, as the case may be. Never constituting a part of the assets of the estate of the deceased, it is freed from all pos- sible claims of his creditors, or of legatees under any will he may leave. 178. Due Care on the Part of the Deceased. It is a plain condition that, in order to maintain an action under this section, the plaintiff must show that the deceased was, at the time of the accident which resulted in his death, in the exer- cise of due care. 1 So far as this burden is con- cerned, the widow or next of kin stand in no better position than would the employee if he had survived. The onlv difference that can be sug- 1 Lothrop v. Fitchburg Railroad, 150 Mass. 423 (1890). Shea v. Boston & Maine Railroad, 154 Mass. 31 (1891). Browne v. New York, etc. Railroad, 158 Mass. 247 (1893). McLean v. Chem- ical Paper Co., 165 Mass. 5 (1895). Dyer v. Fitchburg Railroad, 170 Mass. 148 (1898). THE LIABILITY OP EMPLOYERS. 187 gested as to the position of these two classes of plaintiffs in this respect is in the character of the evidence with which the burden of proof is gen- erally sustained. In most suits brought by the employee himself there is direct evidence upon the subject; while in most cases of death which is instantaneous or without conscious suffering there can be no such evidence. In these latter cases the plaintiff is generally obliged to establish the fact of due care by the aid of evidence from which it may properly be inferred. And it has been held that the jury may as properly infer due care on the part of the deceased from the absence of negli- gence, where there is a full disclosure of the facts of the case, as from direct evidence of diligence. 1 ' ' WHERE AN EMPLOYEE is INSTANTLY KILLED OR DIES WITHOUT CONSCIOUS SUFFERING." 179. Burden of Proof under this Provision. In order to maintain an action under this section, the widow or dependent next of kin must satisfy the jury that the death of the employee was instantan- eous or without conscious suffering. Where there is no direct evidence bearing upon this point, the jury may, nevertheless, infer that such was the fact from all the evidence in the case. 2 Thus, where the deceased was knocked from the rear car 1 Caron v. Boston & Albany Railroad, 164 Mass. 523, 525 (1895), and see 129. 2 Maher v. Boston & Albany Railroad, 158 Mass. 36 (1893). Mears v. Boston & Maine Railroad, 163 Mass. 150 (1895). Green v. Smith, 169 Mass. 485 (1897). 188 STATUTORY TORTS IN MASSACHUSETTS. of a freight train by the contact of his head with a bridge, the court held that, taking into account the speed of the train, the lesions upon his head, and the fact that no outcry was heard, the in- ference was justified that he died instantly or without conscious suffering. 1 It is to be observed that these phrases are used in the alternative. If, therefore, it appears from the evidence that the employee was not instantly killed, the plaintiff may still sustain the burden of proof imposed by this provision by showing that, though not instantly killed, he died without ever having regained consciousness. 2 180. "What constitutes Death without Conscious Suffering. What constitutes death without con- scious suffering within the meaning of this section is, of course, a question of fact. It has been held that the jury was warranted in finding that the employee died without conscious suffering where it appeared that his body was crushed by a car, but that he took two or three steps after he was struck by it. 3 So, also, where the evidence showed that death resulted from concussion of the brain, al- though it appeared that he uttered a few scattering words after the accident. 4 1 Maher v. Boston & Albany Railroad, 158 Mass. 36, 45 (1893). 2 Hodnett v. Boston & Albany Railroad, 156 Mass. 86 (1892). 8 Mears v. Boston & Maine Railroad, 163 Mass. 150 (1895). 4 Willey v. Boston Electric Light Co., 168 Mass. 40 (1897). See also Mulcahey v. Washburn Car Wheel Co., 145 Mass. 281 (1887). Hodnett v. Boston & Albany Railroad, 156 Mass. 86 (1892). Green v. Smith, 169 Mass. 485 (1897). THE LIABILITY OP EMPLOYERS. 189 "As THE RESULT OF THE NEGLIGENCE OP AN EMPLOYER, OR OF THE NEGLIGENCE OF ANY PERSON FOR WHOSE NEGLIGENCE THE EMPLOYER IS LIABLE UNDER THE PROVISIONS OF THIS ACT." 181. Effect of the Provision. The statute here makes a plain distinction between the negli- gence of the employer himself and the negligence of those employees for which this act makes him liable. The effect of the distinction, so far as this part of the act is concerned, is that the liability imposed by this section for the negligence of the employer himself is very broad, covering any negli- gent act of his whatsoever ; but as to the negligence of an employee is strictly limited, including only the negligent acts of a particular class, namely, those specified in section one. 1 As was said by Mr. Justice Knowlton in a recent case : l " The clause ' under the provisions of this act ' qualifies only the clause ' any person for whosa negligence the employer is liable,' and does not limit the preced- ing clause, * as the result of the negligence of an em- ployer.' The effect of the section is to give a right of recovery whenever a person is instantly killed or dies without conscious suffering as the result of any negligence of the employer himself, but not to give the right when a death occurs from the negli- gence of an employee, unless the negligence is of a kind that would subject the employer to a liability under the first section of the statute if the deceased person had been injured and had survived." 1 Welch v. Grace, 167 Mass. 590, 592 (1897). 190 STATUTORY TORTS IN MASSACHUSETTS. " THE WIDOW OF THE DECEASED, OR IN CASE THERE IS NO WIDOW, THE NEXT OF KIN." 182. In whom the Right of Action is Vested. This section gives the right of action only to the widow or dependent next of kin of the deceased employee. 1 Not only does it not give any right of action to his legal representatives, but this section cannot be so combined with the statute of eighteen hundred and eighty-three, chapter two hundred and forty-three, as to enable such representatives to maintain an action where the death of the employee was instantaneous or without conscious suffering, and no widow nor dependent next of kin survived. 2 This clause does not require, however, that where there is no widow, the action shall be main- tained by all of the next of kin suing jointly. Any one of them alone, who was dependent upon the wages of the deceased for support, can main- tain the action. 3 " PROVIDED THAT SUCH NEXT OF KIN WERE AT THE TIME OF THE DEATH OF SUCH EMPLOYEE DEPENDENT UPON THE WAGES OF SUCH EMPLOYEE FOR SUPPORT." 183. What must be shown under this Provision. Under this provision the burden rests upon the next of kin who brings the suit to prove that he or she was, at the time of the death of the deceased, 1 See Clark v. New York, etc. Railroad, 160 Mass. 39 (1893). 2 Dacey v. Old Colony Railroad, 153 Mass. 112, 118 (1891). 8 Daly v. New Jersey Steel & Iron Co., 155 Mass. 1, 4 (1891). THE LIABILITY OP EMPLOYERS. 191 dependent upon his wages for support. 1 But in order to sustain this burden, the plaintiff is not required to show legal dependence : whether or not the deceased was bound, under the provisions of Public Statutes, chapter 84, section 6, to support the plaintiff is not material here. Evidence show- ing the mere fact of dependence is sufficient. 2 184. What constitutes Dependence. The question of dependency under this act, as under the statute relating to beneficiary associations, is treated solely as a question of fact. Thus where it appeared that the plaintiff, who was a daughter of the deceased, had lived with him ; that he had turned over to her all his wages, with which she ran the house and bought her clothing ; that she had also some income from another source, but that she used all the money received from both sources, it was held that she was dependent upon the wages of the deceased for support within the meaning of this provision. 3 A similar decision was reached where it appeared that the plaintiff, a sister of the deceased, was an invalid and not able to work regularly, and that she received monthly a sum of money from him for her support. 2 But evi- dence showing that the deceased sent to the plaintiff a sum of money every other week or so with which to pay her rent ; that she had no means of support 1 Hodnett v. Boston & Albany Railroad, 156 Mass. 86 (1892). 2 Daly v. New Jersey Steel & Iron Co., 155 Mass. 1, 5 (1891). * Houlihan v. Connecticut Eiver Railroad, 164 Mass. 555 (1895). 192 STATUTORY TORTS IN MASSACHUSETTS. except her own earnings ; and that since the death of the deceased she had been obliged to support herself, was held not to satisfy this provision. 1 ' ' MAY MAINTAIN AN ACTION FOR DAMAGES THEREFOR AND MAY RECOVER IN THE SAME MANNER, TO THE SAME EXTENT, AS IF THE DEATH OF THE DECEASED HAD NOT BEEN INSTANTANEOUS, OR AS IF THE DECEASED HAD CON- SCIOUSLY SUFFERED." 185. Meaning of the Provision. The exact meaning intended to be conveyed by this provision is perhaps somewhat obscured by the language used. Relative to it the court has said that these words " can hardly be used with literal accuracy, for there was no law under which a widow or next of kin could recover at all for the death of the husband or relative until this statute was passed. The meaning obviously is, that the right of action given in the first part of the section shall not be affected by the fact that the deceased died in- stantaneously, or without conscious suffering." 2 SECTION 3. Except in actions brought by the personal representatives under section one of this act to recover damages for both the injury and death of an em- ployee, 8 the amount of compensation receivable under 1 Hodnett v. Boston & Albany Railroad, 156 Mass. 86 (1892). 2 Ramsdelli*. New York, etc. Railroad, 151 Mass. 245, 249 (1890). For possible suggestions as to the form of declarations in actions by the widow, next of kin, or legal representatives of the deceased, see Gustafsen v. Washburn & Moen Manuf. Co., 153 Mass. 468 (1891). O'Keefe v. Brownell, 156 Mass. 131 (1892). Maher v. Boston & Albany Railroad, 158 Mass. 36 (1893). 8 This clause is added by St. 1892, ch. 260, s. 2. THE LIABILITY OP EMPLOYEES. 193 this act in cases of personal injury shall not exceed the sum of four thousand dollars. In case of death which follows instantaneously or without conscious suffer- ing, 1 compensation in lieu thereof may be recovered in not less than five hundred and not more than five thousand dollars, to be assessed with reference to the degree of culpability of the employer herein, or the person for whose negligence he is made liable ; and no action for the recovery of compensation for injury or death under this act shall be maintained, unless notice of the time, place and cause of the injury is given to the employer within thirty days, and the action is com- menced within one year, from the occurrence of the accident causing the injury or death. The notice re- quired by this section shall be in writing, signed by the person injured or by some one in his behalf; but if from physical or mental incapacity it is impossible for the person injured to give the notice within the time provided in said section, he may give the same within ten days after such incapacity is removed, and in case of his death without having given the notice and without having been for ten days at any time after his injury of sufficient capacity to give the notice, his executor or administrator may give such notice within thirty days after his appointment? But no notice given under the provisions of this section shall be deemed to be in- valid or insufficient solely by reason of any inaccuracy 1 This clause is added by St. 1892, ch. 260, s. 2. 2 This provision is inserted by St. 1888, ch. 155. For further provisions relative to the notice here required, see Acts, 1894, ch. 389, which is given on page 55, ante. 13 194 STATUTORY TORTS IN MASSACHUSETTS. in stating the time, place or cause of the injury : provided, it is shown that there was no intention to mislead, and that the party entitled to notice was not in fact misled thereby. 186. The Subject-matter of the Section. This section deals altogether with matters relating to practice under the act. Its provisions, in the first place, fix the limits to the amount that may be recovered as damages ; and, in the second place, regulate the matter of notice. As to the first point, it will be noticed that the section makes a distinction between actions for personal injuries and actions for death which is instantaneous or without conscious suffering, plac- ing different limits upon the amount that may be recovered in each case. 1 " No ACTION FOR THE RECOVERY OF COMPENSATION FOR INJURY OR DEATH UNDER THIS ACT SHALL BE MAINTAINED, UNLESS NOTICE OF THE TIME, PLACE AND CAUSE OF THE INJURY IS GIVEN TO THE EMPLOYER WITHIN THIRTY DAYS." 187. The Requirement of Notice. This pro- vision requires in terms the giving of a notice both in cases under section one, where the action is brought by the injured employee himself, and in cases under section two, where the suit is brought by the widow or dependent next of kin. 2 1 Ramsdell v. New York, etc. Railroad, 151 Mass. 245, 250 (1890). Gustafsen v. Washburn & Moen Manuf. Co., 153 Mass. 468,473 (1891), semble. 2 See Daly v. New Jersey Steel & Iron Co., 155 Mass. 1, 3 (1891). THE LIABILITY OF EMPLOYERS. 195 The requirement of notice creates a strict con- dition precedent, and if a plaintiff has failed for any reason to comply with it, he cannot maintain his action. 1 Indeed, so strictly is this condition enforced that, in order to satisfy it, the notice must be actually served before the writ in the action is drawn : therefore, although a notice, given after the date of the writ, is served upon the employer within the required number of days after the accident, it will not support the action. 2 These provisions as to notice have, of course, no applica- tion to actions at common law. 3 188. The Construction of the Notice. The in- tention of the legislature in enacting the provisions as to notice appears to have been to have the em- ployer apprised of the claims for damages to be made against him with such a reasonable degree of promptness as would enable him to investigate the case, without delay, and to secure and preserve his evidence. Since this object can be accom- plished equally well without insisting upon exact accuracy of statement in all respects, the contents of a notice given under this section is not to be construed with technical strictness. Nevertheless, it should contain a reasonably correct statement of the time, place, and cause of the accident, and should also make it apparent that it was intended to be made the basis of a claim for damages * Foleyp. Pettee Machine Works, 149 Mass. 294, 296 (1889). 2 Veginan v. Morse, 160 Mass. 143 (1893). Ryalls v. Mechanics' Mills, 150 Mass. 190, 196 (1889). 196 STATUTORY TORTS IN MASSACHUSETTS. against the employer, and was given by, or on behalf of, the person who brings the suit. 1 The question of the sufficiency of such a notice is to be determined from an inspection of the whole document, 2 and is a question of law for the court, and not of fact for the jury. 3 189. The Statement of the Time. It is not necessary to state in the notice the hour at which the accident happened ; a statement of the day alone is in general sufficient. 4 190. The Statement of the Place. It seems that while it may not be necessary to describe the exact spot where the accident happened with accuracy of detail, yet the statement should be sufficiently full and clear so that the place can be identified with reasonable certainty. 5 191. The Statement of the Cause. A simple statement of the facts relating to the cause of the accident is sufficient to satisfy the requirements of this portion of the section. If the notice docs this much, it is not defective merely because it does not state the ultimate cause of the accident. Thus the statement that the injury resulted from " the 1 Driscoll v. Fall Kiver, 163 Mass. 105 (1895). 2 Lyman v. Hampshire, 138 Mass. 74 (1884). 3 Shea v. Lowell, 132 Mass. 187 (1882). * Donahoe v. Old Colony Kailroad, 153 Mass. 356, 358, 361 (1891); and 50, ante. 6 See 51, ante. For notices which have been held to be sufficient, see Donahoe . Old Colony Railroad, 153 Mass. 356 (1891). Brick v. Bosworth, 162 Mass. 334, 337 (1894). THE LIABILITY OP EMPLOYERS. 197 falling of a bank of earth" is a sufficient state- ment of the cause, although the plaintiff intended to rely upon the negligence of the defendant's superintendent in not properly shoring up the bank. 1 And it has been held that such a notice was not defective for the reason that it did not state the kind of negligence which caused the injury, so as to apprise the defendant as to which clause of section one of the statute the plaintiff was intend- ing to rely. 2 And again, that a notice was not defective simply because it stated more than one cause of the injury, each cause being sufficiently set forth. 8 192. The Service of the Notice. The notice required by this provision may be served in any manner that will insure its reaching the employer within the required time. " "Without reference to the modes of service prescribed by the law in or- dinary cases where notice is to be given, it is enough under this statute if a notice in proper form from the employee comes into the hands of the employer within thirty days after the accident." It was held, therefore, that due notice was given to the employer where a notice was taken to the office of its general superintendent, in its principal station in Boston, and, in his absence, was left for * Lynch v. Allyn, 160 Mass. 248, 255 (1893). 2 Brick v. Bosworth, 162 Mass. 334, 336 (1894). 8 Coughlan v. Cambridge, 166 Mass. 268, 276 (1896). See also 52, ante. 198 STATUTORY TORTS IN MASSACHUSETTS. him there with a young man who appeared to be a clerk. 1 193. The Allegation of Notice in the Declara- tion. It is not necessary that the plaintiff should allege in his declaration the time when the notice required by this section was given to the defend- ant. An averment that it was " duly " given is sufficient. 2 " THE NOTICE KEQTJIRED BY THIS SECTION SHALL BE IN WRITING, SIGNED BY THE PERSON INJURED OR BY SOME ONE IN HIS BEHALF." 194. Signing by the Attorney. Under this provision a notice that is signed with his own name by the attorney for the plaintiff is good, where there is evidence to show that he was authorized so to do. 3 In the absence of positive evidence of such authority, it will be presumed, especially if the at- torney who gave the notice also conducts the suit. 4 " IN CASE OF HIS DEATH WITHOUT HAVING GIVEN THE NOTICE AND WITHOUT HAVING BEEN FOR TEN DAYS AT ANY TIME AFTER HIS INJURY OF SUFFICIENT CAPACITY TO GIVE THE NOTICE, HIS EXECUTOR OR AD- MINISTRATOR MAY GIVE SUCH NOTICE." 195. The giving of the Notice where Death is instantaneous. The question as to who should 1 Shea v. New York, etc. Railroad, point 2, decided April 1 ; 1899. 2 Steffe v. Old Colony Railroad, 156 Mass. 262 (1892). 8 Dolan v. Alley, 153 Mass. 380 (1891). The notice in that case was signed " C & P , attorneys for Charles Dolan." * Steffe v. Old Colony Railroad, 156 Mass. 262 (1892). THE LIABILITY OF EMPLOYERS. 199 give the notice in cases under the second section, where the employee was instantly killed or died without conscious suffering, has been much dis- cussed in the cases. The result of the decisions is that in such cases it may be given either by some person on behalf of the deceased, within thirty days after the occurrence of the accident which caused the death, 1 or by the executor or adminis- trator of the deceased within thirty days after his appointment. 2 A notice given by the latter will, therefore, support an action by the widow or dependent next of kin. 3 ' ' BUT NO NOTICE GIVEN UNDER THE PROVISIONS OP THIS SECTION." 196. Construction of the Clause. This clause is interpreted as limiting the scope of this section to " those extremes, if any, lying outside the com- mon law rule," but coming within the provisions of this act, "unless a case shall arise in which the plaintiff, although he has a remedy at common law, insists on relying upon the statute alone." 4 " SHALL BE DEEMED TO BE INVALID OR INSUFFI- CIENT . . . : PROVIDED, IT IS SHOWN THAT THERE WAS NO INTENTION TO MISLEAD, AND THAT THE PARTY EN- TITLED TO NOTICE WAS NOT IN FACT MISLED THEREBY." 1 Gustafsen v. Washbnrn & Moen Manuf. Co., 153 Mass. 468 (1891). 2 Daly v. New Jersey Steel & Iron Co., 155 Mass. 1 (1891). 8 Jones v. Boston & Albany Railroad, 157 Mass. 51 (1892). Dickerman v. Old Colony Railroad, 157 Mass. 52 (1892). * Ryalla v. Mechanics' Mills, 150 Mass. 190, 196 (1889). 200 STATUTORY TORTS IN MASSACHUSETTS. 197. Effect of the Provision. The question of the sufficiency or insufficiency of a notice becomes immaterial in any case where there is evidence, properly submitted to the jury, showing that there was no intention to mislead, and that the defend- ant was not in fact misled, by the notice actually given. 1 The question raised by this provision is, of course, one of fact, the burden of establishing which rests with the plaintiff who would take advantage of it. SECTION 4. Whenever an employer enters into a contract, either written or verbal, with an independent contractor to do part of such employer's work, or whenever such contractor enters into a contract with a sub-contractor to do all or any part of the work com- prised in such contractor's contract with the employer, such contract or sub-contract shall not bar the liability of the employer for injuries to the employees of such contractor or sub-contractor, by reason of any defect in the condition of the ways, works, machinery or plant, if they are the property of the employer, or furnished by him, and if such defect arose or had not been discovered or remedied, through the negligence of the employer or of some person entrusted by him with the duty of seeing that they were in proper con- dition. 1 Drommie v. Hogan, 153 Mass. 29 (1891). For a case where it was held that the evidence failed to show that the notice was not given within the thirty days by reason of mental or physical incapacity, see Ledwidge v. Hathaway, 170 Mass. 348 (1898). And sec 59, ante. FOSTER ROGERS BUILDING, BOBTQN, THE LIABILITY OF EMPLOYERS. 201 198. The Effect of the Section. He who ill- vites another to use his premises or appliances upon his premises is bound to exercise due care in order to see that they are in a safe and suitable condition. Upon this familiar duty is based the common law rule that if a principal furnishes premises or appliances upon his premises to an independent contractor whom he has employed to do his work, he will be liable to an employee of such contractor for any injury sustained by reason of his failure to use reasonable care and diligence in order to see that they were in proper condition. Under this rule the principal is equally liable whether the negligence is his own or that of his employee whom he has intrusted with the duty of seeing that the premises or appliances are in proper condition. 1 The provisions of section four of the statute, it seems safe to say, go so far as to lay down the same rule ; that they will go further may admit of serious question. With reference to that question it is hardly possible to say more than that, while no doubt the purpose of the section was to enlarge still further the liability of employers, it is not in the present state of the common law quite clear in just what direction that purpose is to have effect. 2 1 Mulchey v. Methodist Religious Society, 125 Mass. 487 (1878), and cases cited. Drommie v. Hogan, 153 Mass. 29 (1891). Coughtry v. Globe Woolen Co., 56 N. Y. 124 (1874). 2 See Wood, Master and Servant, 338, where it is suggested that if the principal agrees to furnish appliances for the work not 202 STATUTORY TORTS IN MASSACHUSETTS. 199. The Contractor may be the " Person en- trusted." Under the provisions of this section, a person may occupy toward the employer a dual relation : he may be at the same time an independ- ent contractor and a person intrusted with the duty of seeing that the ways, works, machinery, or plant are in proper condition. If such a person is negligent in the performance of the duties of the latter position, the fact that he is also an independ- ent contractor will in no wise alter or affect the liability of the employer under this section for the consequences of that negligence. 1 SECTION 5. An employee or his legal representatives shall not be entitled under this act to any right of compensation or remedy against his employer in any case where such employee knew of the defect or negli- gence which caused the injury, and failed within a reasonable time to give, or cause to be given, infor- mation thereof to the employer, or to some person superior to himself in the service of the employer, who had entrusted to him some general superintend- ence. connected with his premises, he would not be answerable to the contractor's employees for any defects therein. If this should prove to be the common law, it opens up a possible field for the operation of this section that is in accordance with its manifest purpose. And see the discussion in Coughtry v. Globe Woolen Co., 56 N. Y. 124 (1874). 1 Toomey v. Donovan, 158 Mass. 232, 236 (1893). For a case which was held on the facts not to come within the provisions of section four, see Dane v. Cochrane Chemical Co., 164 Mass. 453 (1895). THE LIABILITY OP EMPLOYERS. 203 200. The Section creates, not a Condition, but a Defence. As construed by the court, this section does not create a condition precedent, the burden of showing compliance with which must be sus- tained by the employee before he can maintain his action. Its effect is simply to create a special de- fence for the benefit of the employer. Upon this point the court said in Connolly v. Waltham : * " The fifth section is not a part of the provisions which define the circumstances essential to show that a plaintiff comes within the right of recovery granted in the first section of the statute ; nor is it a requirement that something shall at all events be done before the right of action accrues, such as giving due notice of the injury, but it excepts from the right to recover employees who, knowing the danger, fail to give information thereof within a reasonable time. As this exception is not in that portion of the statute which gives the right of action, and as the failure to give information does not prevent recovery unless the employee knows of the defect or negligence so long a time before his injury that he can reasonably give in- formation, and with such knowledge fails to give the information, it is a matter of defence only, and need not be alleged or proved by the plaintiff." 1 156 Mass. 368, 371 (1892). For a case involving the question of the liability over of a per- son to a defendant against whom a judgment has been recovered under the Employer's Liability Act, see Consolidated, etc. Machine Company r. Bradley, 171 Mass. 127 (1898). 204 STATUTORY TORTS IN MASSACHUSETTS. PART V. THE LIABILITY OF OTHER PERSONS AND CORPORATIONS. I. Telegraph Companies. PUBLIC STATUTES, CHAPTER 109, SECTION 12. When an injury is done to a person or ,to property by the posts, wires, or other apparatus of a telegraphic line, the company shall be responsible in damages to the party injured. If the same are erected on a highway or town way, the city or town shall not, by reason of anything contained in this chapter or done thereunder, be discharged from its liability, but all damages and costs recovered against a city or town on account of such injury shall be reimbursed by the company owning the posts, wires, or other apparatus. 201. The Scope of the Section. There is as yet no decision that defines the precise field for the operation of this statute. However, in the course of the opinion in Commonwealth v. Boston 1 the 1 97 Mass. 555, 558 (1867). In Young v. Yarmouth, 9 Gray, 386 (1857), it was held that an action could not be maintained against a town for an injury occa- sioned to a traveller by telegraph poles placed in the highway under a license from the selectmen. LIABILITY OF OTHER PERSONS AND CORPORATIONS. 205 court says of it : " Whether this section is to be construed as giving or preserving a right of action, where the injury is caused by the mere placing of the poles at the places appointed for them, may perhaps admit of doubt. The liability of the poles to decay and fall, or to lean over, and of the wires to become displaced, would give the provision effect, if the right of the original location of them was regarded as unquestionable." Beyond this dictum there appears to be nothing bearing upon the scope or interpretation of this section of the statute. 1 1 In Hector v. Boston Electric Light Co., 161 Mass. 558, 570 (1894), the Court touched upon, but found it unnecessary to decide, the question whether this section was intended to include injuries received from an electric current transmitted through wires. Statute 1883, ch. 221, a. 1. All provisions of law granting to persons and corporations authority to erect, lay and maintain and to cities and towns authority to regulate telegraph and telephone lines, except sections sixteen and eighteen of chapter one hundred and nine of the Public Statutes, shall, so far as applicable, apply to lines for the transmission of electricity for the purpose of lighting. S. 2. This act shall take effect upon its passage. [June 2, 1883.] This statute " relates solely to the authority to erect, lay, and maintain lines for the transmission of electricity for the purpose of lighting, and to the regulation of such lines ; it does not relate to the liability of electric light companies for injuries received by any person from the posts, wires, or other apparatus of such com- panies." This section twelve of chapter one hundred and nine does not, therefore, apply to them. Hector v. Boston Electric Light Company, 161 Mass. 558, 570 (1894). Illingsworth v. Same, 161 Mass. 583, 585 (1894). 206 STATUTORY TORTS IN MASSACHUSETTS. II. Cras and Electric Light Corporations. ACT, 1897, CHAPTER 416. An Act to Authorize Actions of Tort Against Gas and Electric Light Cor- porations for the Loss of Life By Negligence. If by reason of the negligence or carelessness of a cor- poration operating a gas or electric light plant or system, or of the unfitness or gross negligence or carelessness of its servants or agents while engaged in its business, the life of a person who is exercising due diligence and who is not in the emplo}'ment of such corporation, is lost, the corporation shall be liable in damages not exceeding five thousand dollars nor less than five hundred dollars, to be assessed with reference to the degree of culpability of said corporation or of its servants or agents, and to be recovered in an action of tort commenced within one year from the injury caus- ing the death, by the executor or administrator of the deceased person, for the use of the widow and children of the deceased, in equal moieties ; or if there are no children, for the use of the widow ; or if there is no widow, for the use of the next of kin. 1 202. The Construction of the Act. This statute does not create a distinctly new liability, but rather extends a liability already in existence so as to make it apply to new parties. In making this extension the legislature has employed throughout the vital provisions, the identical words and phrases used in those earlier statutes that impose the same 1 Approved May 21, 1897. LIABILITY OF OTHER PERSONS AND CORPORATIONS. 20T liability. Consequently, in approaching the con- struction of this act, it may be assumed that the legislature, in adopting language which had al- ready received judicial interpretation as applied to the same subject matter, sanctioned that construc- tion, nothing to the contrary appearing in the act itself. Therefore, the law developed under those earlier statutes may, it would seem, be invoked in aid of the interpretation of this later statute. 1 III. Persons and Corporations in general. ACTS, 1898, CHAPTER 565. An Act Relative to the Liability of Persons and Corporations for Negli- gence Resulting in the Death of Persons not in Then: Employ. If, by reason of the negligence or carelessness of any person or corporation, or of the gross negli- gence or carelessness of any servant or agent of any person or corporation while engaged in the business of such person or corporation, the life of a person who is exercising due diligence and who is not in the em- 1 Whitcomb v. Rood, 20 Vt. 49 (1847). For the construction of the earlier statutes, see 82-113. The statute of 1883, chapter 221, makes all provisions of the statutes as to the erection, etc., of telegraph and telephone lines apply, "so far as applicable," to electric-light companies. It has been held that the provisions of section twelve of chapter one hundred and nine of the Public Statutes, which impose a liability for personal injury upon telegraph companies, do not, by virtue of this statute of 1883, apply to electric-light companies. Hector v. Boston Electric Light Company, 161 Mass. 558, 570 (1894). And see 201, note. 208 STATUTORY TORTS IN MASSACHUSETTS. ploy or service of such person or corporation is here- after lost, such person or corporation shall be liable in damages not exceeding five thousand dollars nor less than five hundred dollars, to be assessed with reference to the degree of culpability of such person or corpora- tion, or of the servants or agents of such person or corporation, and to be recovered in an action of tort commenced within one year from the injury which caused death, by the executor or administrator of the deceased person," for the use of the widow and children of the deceased in equal moieties ; or if there are no children, to the use of the widow ; or if there is no widow, to the use of the next of kin. 1 1 Approved June 23, 1898. This statute extends broadly a liability that, up to the aate of its enactment, had been confined to particular classes of persons and corporations: railroads, Pub. Sts. ch. 112, s. 212. See 82- 101. Street railways, Pub- Sts. ch. 112, s. 212, and St. 1886, ch. 140. See 110-113. Common carriers, Pub. Sts. ch. 73, s. 6. See 109. Gas and electric-light companies, St. 1897, ch. 416. See p. 206. For construction, see 202, ante, and notes. APPENDIX A. PUBLIC STATUTES, CHAPTER 52. OF THE REPAIRS OF WAYS AND BRIDGES. SECTION 17. If the life of a person is lost by reason of a defect or want of repair of a highway, town way, causeway, or bridge, or for want of suitable rails on such way or bridge, the county, town, or person by law obliged to repair the same shall be liable in damages not exceeding one thousand dollars, to be assessed with reference to the degree of cul- pability of the county, town, or person liable, and re- covered in an action of tort, commenced within one year from the injury causing the death, by the execu- tor or administrator of the deceased person, for the use of the widow and children of the deceased in equal moieties, or, if there are no children, to the use of the widow, or, if no widow, to the use of the next of kin: provided, that the county, town, or person had previous reasonable notice of the defect or want of repair of such way or bridge. SECTION 18. If a person receives or suffers bodily injury, or damage in his property, through a defect or want of repair or of sufficient railing in or upon a highway, town way, causeway, or bridge, which might have been remedied, or which damage or injury might 14 210 APPENDIX A. have been prevented by reasonable care and diligence on the part of the county, town, place, or persons by law obliged to repair the same, he may recover, in the manner hereinafter provided, of the said county, town, place, or persons, the amount of damage sustained thereby, if such county, town, place, or persons had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence on their part ; but no such damage shall be recovered by a person whose carriage and the load thereon exceed the weight of six tons. SECTION 19. l A person so injured shall within ten days thereafter, if such defect or want of repair is caused by or consists of snow or ice, or both, whether wholly or in part, and in all other cases within thirty days thereafter, give to the county, town, place or persons by law obliged to keep said highway, town way, causeway, or bridge in repair, notice of the time, place, and cause of the said injury or damage; and if the said county, town, place, or persons do not pay the amount thereof, he may within two years after the date of said injury or damage bring an action of tort against said county, town, place, or persons to recover the same. But no notice given under the provisions of this section shall be deemed to be invalid or in- sufficient solely by reason of any inaccuracy in stating the time, place, or cause of the injury : provided, that it is shown that there was no intention to mislead, and that the party entitled to notice was not in fact mis- led thereby. 1 As amended by Acts, 1882, ch. 36; Acts, 1888, ch. 114; Acts, 1894, ch. 422, s. 1. APPENDIX A. 211 SECTION 20. No person shall recover from a town, city, county, or place, in any such action, a greater sura for damages or injury than one-fifth of one per cent of the state valuation of such town, city, county, or place last preceding the commencement of the action, nor a greater sum than four thousand dollars. SECTION 21. The notice required by section nine- teen shall be in writing, signed by the person injured or by some one in his behalf, and may be given, in the case of a county, to one of the county commissioners or to the county treasurer ; in the case of a city, to the mayor, the city clerk, or the treasurer ; and in the case of a town, to one of the selectmen or to the town treasurer or clerk ; but if from physical or mental incapacity it is impossible for the person injured to give the notice within the time provided in said section, he may give the same within ten days after such in- capacity is removed, and in case of his death without having given the notice, and without having been for ten days at any time after his injury of sufficient capacity to give the notice, his executor or administra- tor may give such notice -within thirty days after his appointment. SECTION 22. If, before the entry of an action under section eighteen, the defendant tenders to the plaintiff the amount which he would be entitled to recover, together with all legal costs, and the plaintiff does not accept the same, and does not recover upon the trial more than the sum so tendered, the defendant shall recover his costs. 212 APPENDIX A. ACTS, 1887, CHAPTER 270. AN Act to Extend and Regulate the Liability of Employers to Make Compensation for Personal In- juries Suffered by Employees in Their Service. SECTION 1. Where, after the passage of this act, personal injury is caused to an employee, who is him- self in the exercise of due care and diligence at the time : (1) By reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer, which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and entrusted by him with the duty of seeing that the ways, works or ma- chinery were in proper condition ; or (2) By reason of the negligence of any person in the service of the employer, entrusted with and exer- cising superintendence, whose sole or principal duty is that of superintendence, or, in the absence of such superintendent, of any person acting as super- intendent with the authority or consent of such em- ployer; or 1 (3) By reason of the negligence of any person in the service of the employer who has the charge or control of any signal, switch, locomotive engine or train upon a railroad, the employee, or in case the injury results in death the legal representatives of such employee, shall have the same right of compensation and remedies against the employer as if the employee had not been 1 As amended by Acts, 1894, ch. 499. APPENDIX A. 213 an employee of nor in the service of the employer, nor engaged in its work. And in case such death is not in- stantaneous, or is preceded by conscious suffering, said legal representatives may in the action brought under this section, except as hereinafter prodded, also recover damages for such death. The total damages awarded hereunder, both for said death and said injury, shall not exceed five thousand dollars, and shall be appor- tioned by the jury between the legal representatives and the persons, if any, entitled under the succeeding section of this act, to bring an action for instantaneous death. If there are no such persons then no damages for such death shall be recovered, and the damages, so far as the same are awarded for said death, shall be assessed with reference to the degree of culpability of the employer herein, or the person for whose negligence he is made liable. 1 A car in use by or in the posses- sion of a railroad company shall be considered a part of the ways, works or machinery of the company using or having the same in possession, within the meaning of this act, whether such car is owned by it or by some other company or person. 2 SECTION 2. Where an employee is instantly killed or dies without conscious suffering, as the result of the negligence of an employer, or of the negligence of any person for whose negligence the employer is liable under the provisions of this act, the widow of the deceased, or in case there is no widow, the next of kin, provided that such next of kin were at the time of the death of such employee dependent upon the wages of such employee for support, may maintain an action for 1 Amendment added by Acts, 1892, ch. 260, a. 1. 2 Added by Acts, 1893, ch. 359. 214 APPENDIX A. damages therefor and may recover in the same manner, to the same extent, as if the death of the deceased had not been instantaneous, or as if the deceased had consciously suffered. SECTION 3. Except in "actions brought by the personal representatives under section one of this act to recover damages for both the injury and death of an em- ployee, 1 the amount of compensation receivable under this act in cases of personal injury shall not exceed the sum of four thousand dollars. In case of death which follows instantaneously or without conscious suffering, 1 compensation in lieu thereof may be re- covered in not less than five hundred and not more than five thousand dollars, to be assessed with refer- ence to the degree of culpability of the employer here- in, or the person for whose negligence he is made liable ; and no action for the recovery of compensation for injury or death under this act shall be maintained, unless notice of the time, place and cause of the in- jury is given to the employer within thirty days, and the action is commenced within one year, from the occurrence of the accident causing the injury or death. The notice required by this section shall be in writing, signed by the person injured or by some one in his be- half; but if from physical or mental incapacity it is impossible for the person injured to give the notice with- in the time provided in said section, he may give the same within ten days after such incapacity is removed, and in case of his death without having given the notice and without having been for ten days at any time after his injury of sufficient capacity to give the notice, his executor or administrator may give such notice within 1 This provision is added by Acts. 1892, ch. 260, s. 2. APPENDIX A. 215 thirty days after his appointment. 1 But no notice given under the provisions of this section shall be deemed to be invalid or insufficient solely by reason of any in- accuracy in stating the time, place or cause of the injury : provided, it is shown that there was no in- tention to mislead, and that the party entitled to notice was not in fact misled thereby. SECTION 4. Whenever an employer enters into a contract, either written or verbal, with an independent contractor to do part of such employer's work, or whenever such contractor enters into a contract with a sub-contractor to do all or any part of the work comprised in such contractor's contract with the em- ployer, such contract or sub-contract shall not bar the liability of the employer for injuries to the employees of such contractor or sub-contractor, by reason of any defect in the condition of the ways, works, machinery or plant, if they are the property of the employer, or furnished by him, and if such defect arose or had not been discovered or remedied, through the negligence of the employer or of some person entrusted by him with the duty of seeing that they were in proper con- dition. SECTION 5. An employee or his legal representatives shall not be entitled under this act to any right of compensation or remedy against his employer in any case where such employee knew of the defect or negli- gence which caused the injury, and failed within a reasonable time to give, or cause to be given, informa- tion thereof to the employer, or to some person su- perior to himself in the service of the employer, who had entrusted to him some general superintendence. 1 This provision is inserted by Acts, 1888, ch. 155. 216 APPENDIX 4, SECTION 6. Any employer who shall have contrib- uted to an insurance fund created and maintained for the mutual purpose of indemnifying an employee for per- sonal injuries for which compensation may be recovered under this act, or to any relief society formed under chapter two hundred and forty-four of the acts of the year eighteen hundred and eighty-two, as authorized by chapter one hundred and twenty-five of the acts of the year eighteen hundred and eighty-six, may prove, in mitigation of the damages recoverable by an employee under this act, such proportion of the pecuniary benefit which has been received by such employee from any such fund or society on account of such contribution of said employer, as the contribution of such employer to such fund or society bears to the whole contribution thereto. SECTION 7. This act shall not apply to injuries caused to domestic servants, or farm laborers, by other fellow employees, and shall take effect on the first day of September, eighteen hundred and eighty-seven. APPENDIX B. THE DEVELOPMENT OF THE STATUTES IMPOS- ING LIABILITY UPON MUNICIPAL CORPORA- TIONS FOR CAUSING PERSONAL INJURY OR DEATH. Legislation upon this subject dates back to a very early period. See Mass. Col. St. 1648 ; 2 Mass. Col. Rec. 229 ; Mass. Col. Sts. (ed. 1672) 12 ; Prov. St. 1693-94, c. 6, ss. 1, 6 ; 1 Prov. Laws (State ed.) 136, 137 ; Anc. Chart. 55, 56, 267, 269. But the first statute enacted after the adoption of the Con- stitution was that of 1786, ch. 81, s. 7. This act provided that " if any person shall lose a limb, break a bone or receive any other injury in his person " through any defect in the public ways, he may recover of the county, town, or person obliged to keep same in repair, in case they had reason- able notice of the defect, double the damages sus- tained ; and if the life of a person is lost through such defect, " or for want of rails on any bridge," the county, town, or persons obliged to repair such way shall be liable to a penalty of one thousand pounds, to be recovered by indictment or present- ment and to be paid to the executor or adminis- trator, " for the use of the heirs, devisees or 218 APPENDIX B. creditors," provided that actual notice of the want of repair had been given in a manner specifically required. The law remained substantially in this form down to the time of the revision in 1836. Several important changes were then made. The latter part of the statute of 1786, covering the provisions relative to causing death, was embodied in a sepa- rate section, and the requirement as to notice was so far modified as to require simply that " the county, town, or person had previous reasonable notice of the defect." Rev. Sts. ch. 25, s. 21. The first portion of the statute of 1786 that portion containing the provisions as to causing injury to the person was also made a separate section, and so amended as to give a right to recover the amount of damage sustained where the injury was caused by a defect whicli had existed for the space of twenty-four hours ; and to recover double the damages so sustained if the county, town, or per- son had reasonable notice of the defect. Rev. Sts. ch. 25, s. 22. The twenty-third section of the same chapter of the Revised Statutes introduced the provision relative to making a tender, which was retained without change in all subsequent revisions. Two years later the legislature inserted into the provisions of the Revised Statutes, ch. 25, s. 22, the exemption from liability where the vehicle and load exceeded six tons in weight. Acts, 1838, ch. 104. APPENDIX B. 219 In 1850 that provision of the Revised Statutes, ch. 25, s. 22, as to the recovery of double damages was repealed, and the section so amended as to make the recovery of the damages sustained depend upon the condition : " if such county, town, or per- sons had reasonable notice of the defect, want of repair, or of sufficient railing, or if the same had existed for the space of twenty-four hours previous to the occurrence of the injury." Acts, 1850, ch. 5. In the general revision ten years later -the pro- visions of the Revised Statutes as to causing death, ch. 25, s. 21, were simply re-enacted without change, see Gen. Sts. ch. 44, s. 21 ; while the provisions of the statute of 1838, ch. 104, and of the statute of 1850, ch. 5, were combined and incorporated in section 22 of the same chapter. During the succeeding seventeen years the legis- lature made no alteration in this law, but at the end of that period several changes and additions were made. Acts, 1877, ch. 234. This act, after providing in the first section that the highways should be kept in repair at the expense of the towns in which they were situated, so altered the liability for causing personal injury as to make it depend upon whether the defect that caused it might have been remedied, or the damage or in- jury might have been prevented by reasonable care and diligence on the part, of the county, town, or person obliged to make repairs, and added the requirement, " if such county, town, place or per- sons had reasonable notice of the defect or might 220 APPENDIX B. have had notice thereof by the exercise of proper care and diligence." See s. 2. The third section provided that the injured party should within thirty days give notice of the time, place, and cause of the injury, and placed the limit to the amount that might be recovered at four thousand dollars. And the fourth section provided to whom and by whom said notice should be given, and also made provision for the giving of the same in those cases where it had not been given within the pre- scribed time by reason of physical or mental in- capacity. In the following year an additional limit was placed upon the amount that might be recovered, so as to restrict it to a sum not greater than one-fifth of one per cent of the valuation of the town. Acts, 1878, ch. 259. Two acts dealing with this subject, each making important changes, were passed by the legislature in 1881. The first of these changed the remedy, in cases where death was caused, from indictment to an action of tort, to be brought within one year by the executor or administrator of the deceased, and provided that the amount recovered, which should not exceed one thousand dollars, should be assessed according to the degree of culpability of the county or town. Acts, 1881, ch. 199, ss. 4, 5. The second of these acts so amended the provisions of the statute of 1877 in regard to notice as to require that it be " in writing, signed by the person injured or by some one in his behalf;" and added the provision for the giving of the same where the APPENDIX B. 221 injured party died without having given it. Acts, 1881, ch. 236. In the Public Statutes the prior legislation is re- enacted with but slight change and made a part of chapter 52. Thus, the provisions of the statutes as to causing death, viz. Gen. Sts. ch. 44, s. 21, and Acts, 1881, ch. 199, ss. 4, 5, are blended together and incorporated in section seventeen. The provi- sions of the second and third sections of chapter 234 of the Acts of 1877 are re-enacted in sections eighteen and nineteen respectively ; while the pro- visions of chapter 259 of the Acts of 1878 are re- enacted in section twenty, and the provisions of the statuts of 1881, chapter 236, are embodied without substantial change in section twenty-one. THE DEVELOPMENT OF THE STATUTES IM- POSING LIABILITIES UPON COMMON CAR- RIERS FOR CAUSING PERSONAL INJURY OR DEATH. THE earliest act dealing with this subject is the statute of 1840, ch. 80. Its provisions simply give a remedy by indictment against the u proprietor or proprietors of any railroad, steamboat, stage coach, or of common carriers of passengers," for causing the death of a person, " being a passenger." The law stood in this form, without change, until 1853, when an act was passed embodying the pro- visions of the statute of 1840, ch. 80, but applying 222 APPENDIX B. them to railroads alone. Acts, 1853, ch. 414. This act, however, not merely re-enacted those provisions, but so extended the scope of the original as to cover cases where " the life of any person not being a passenger or employee," but being in the exercise of due care and not upon the railroad con- trary to law or the reasonable rules of the company, was lost. This same act also first introduced the limitation, which was retained in all subsequent legislation upon the subject, whereby the proceed- ings are required to be commenced within one year from the time of the injury. In the general revision of the statutes in 1860, the provisions of the statute of 1840, ch. 80, as specifically applied to railroads alone by statute of 1853, ch. 414, was re-enacted without substantial change, Gen. Sts. ch. 63, s. 97 ; while the pro- visions relating to persons not passengers or em- ployees, which were introduced in the statute of 1853, ch. 414, were embodied in a separate section, Gen. Sts. ch. 63, s. 98. The provisions of the statute of 1840, ch. 80, so far as they related to the other carriers named therein, were re-enacted with only slight changes of phraseology. Gen. Sts. ch. 160, s. 34. Two years later the legislature combined into one section the provisions of General Statutes, ch. 63, ss. 97 and 98, and applied them specifically to street-railway corporations, the only change being that this act required in terms that the passenger, as well as the person not being a passenger, should APPENDIX B. 223 be " in the exercise of due care." Acts, 1864, ch. 229, s. 37. When the street-railway laws were revised in 1871, these provisions were re-enacted, substantially in the same form. Acts, 1871, ch. 381, s. 49. In that same year, also, the first act was passed giving a remedy where " a person is injured in his person or property by collision " at a grade cross- ing, provided the corporation neglected to give the statutory signals and such neglect contributed to the injury, the injured party not being himself grossly or wilfully negligent, or acting in violation of law, so as to contribute to his own injury. Acts, 1871, ch. 352. When the revision and consolidation of the acts relating to railroads was made in 1874, the provi- sions of General Statutes, ch. 63, ss. 97 and 98, were combined and incorporated without the addition of any new element, in a single section. Acts, 1874, ch. 372, s. 163. The provisions relating to injuries received by collision at railroad crossings, as enacted in the statute of 1871, ch. 352, were re-enacted, with no material change, in section 164 of the same chapter. No further change was made in these enact- ments until the statute of 1881, ch. 199, was passed. This act made important changes in the law as it had stood up to that time. Section one gave a remedy by action of tort against railroad com- panies, to be brought by the executor or adminis- trator of the deceased, where the life of a passenger 224 ADPENDIX B. or of one not a passenger or employee but in the exercise of due care, was lost ; and section two gave the same remedy where the life of a person was lost by collision at a grade crossing. Section three re-enacted without change, save as to the remedy which was also to be by action of tort brought by the executor or administrator, the pro- visions of the General Statutes, ch. 160, s. 34, relative to carriers other than railroads or street railways. This act further provides that this new remedy shall be taken advantage of within one year from the date of the injury, and that it shall not be availed of in connection with the remedy by indictment. Here is also first introduced the provision that the amount of damages shall be assessed with reference to the degree of culpabil- ity of the corporation, or of its servants or agents. ss. 5, 6. In the general revision of the statutes in 1882, the provisions of the statute of 1874, ch. 372, s. 163, relative to railroads, and of the statute of 1871, ch. 381, ss. 49, 50, as to street railways, were blended together and embodied in the first portion of chapter 112, section 212, of the Public Statutes, while sec- tions one, five, and six of chapter 199 of the Acts of 1881 were combined and enacted in the latter part of the same section. The following section is a re-enactment of the provisions of the statute of 1874, ch. 372, s. 164, as amended by the statute of 1881, ch. 199, s. 2. Pub. Sts. ch. 112, s. 213. Section three of chapter 199 of the Acts of 1881, APPENDIX B. 225 relating to carriers other than railroads and street railways, is re-enacted in Public Statutes, ch. 73, s. 6. Throughout the series of statutes that culminates in Public Statutes, ch. 112, s. 212, and ch. 73, s. 6, the remedy, whether by indictment or by action of tort, is given when the life is lost by the negligence of the corporation or by the gross negligence of its servants or agents. The limits of the amount that may be recovered, and the manner in which such amount is to be distributed, also remains unchanged throughout. 15 INDEX KEFEKENCES ARE TO SECTIONS. A. ACCIDENT, as a concurrent cause of an injury on the highway, 17. cause of. (See CAUSE.) ADMINISTRATION, under Public Statutes, ch. 112, a. 212, must appear to have been taken out in this State, 97. ADMISSIONS, by the town, that the highway was defective, 65. statements of surveyor of highways not, by the town, 65, n. 2. statements of a selectman not, 65, n. 2. AGENTS. (See SERVANTS OR AGENTS.) AGREEMENT, towns canuot broaden their liability by, 2. ALLEYS. (See PUBLIC ALLEYS.) ASSUMPTION OF RISK, under Acts, 1883, ch. 243, the doctrine of, affords a good defence, 101. under Acts, 1887, ch. 270, the doctrine of, as to defects in ways, works, or machinery, 122. exceptions to the application of same, 123. of the negligence of a superintendent, 125. of the negligence of a person in " charge or con- trol," 125. 228 INDEX. [References are to sections.] ATTACK, acts of dog must constitute a direct, 76. or a demonstration of, 76. AUTHORITY, appliances must be used with the employer's, 143, 144. B. BAR, judgment for conscious suffering under Acts, 1887, not a, to action for death under Acts, 1883, 84, n. 2, 101, n. judgment under Acts, 1887, ch. 270, is as to action at common law, 116. BARRIERS, erected to close a highway, 28. erected to guard an excavation, 28. must be suitable and sufficient for the purpose, 28, 29. cannot be erected to change the line of travel, 28, n. the subsequent removal of, by other persons, 28. BENEFICIARY, under Public Statutes, ch. 112, s. 212, one must appear to exist, 98. that one does exist should be set out in the plead- ings, 98. the name of the, need not be alleged, 98. C. CARE. (See DUE CARE.) CARS, foreign, as a part of the employers' ways or works, 145. the number of, that constitute a train, 170. electric, do not constitute locomotive engine or train, 171. CAUSE OF THE ACCIDENT, under Public Statutes, ch. 52, the defect in the highway must be the proximate, 16. also the sole, 17. statement of the, in the notice, 52. INDEX. 225 [References are to sections.] CAUSE OF THE ACCIDENT, Continued. under Public Statutes, ch. 52, continued. effect of variance between statement and proof of, 52, n. nnder Public Statutes, ch. 102, s. 93, the acts of the dog must be the sole proximate, 71. under Acts, 1887, ch. 270, defect in ways, etc., or negligence of persons men- tioned in clauses 2 or 3 must be, 127. the negligence of the superintendent need not be tbe sole, 155. statement of the, in the notice, 191. CAUSE OF THE DEFECT, what is the, in the highway, not material, 19. evidence of causes that may produce defects in the future, as tending to show notice of the defect, 46. CHARGE OR CONTROL, clause 3 applies only to negligence in the, of a switch, etc., when same is completed, 164, 169. who may have the, 165. assumption of risk of the negligence of a person in, 125. meaning of the phrase, 166. effect when applied to a train, 166. the legislative definition of a person in, 166. the entire, of a train, need not be vested in one person, 167. the person in, of a train, need not be upon it, 168. CITY ORDINANCE, the effect of a violation of, when injured on the high- way, 8. CLOSING THE HIGHWAY, erecting barriers for the purpose of, 28. COAL-HOLE, a loose cover of, as a defect in the highway, 46, n. the liability of the abutter where an injury is due to a defective, 36, n. 230 INDEX. [References are to sections.] COLLISION AT GRADE CROSSINGS, under Public Statutes, ch. 112, s. 212, actions based upon a, may be maintained by show- ing any negligent act, 86, 102. actions based upon a, lie under this section only where death results, 102. the plaintiff must show that deceased was in the exercise of due care, 102. under Public Statutes, ch. 112, s. 213, actions based upon a, under this section can be maintained only by showing an omission of the required signals, 102. plaintiff need not show that deceased was in the exercise of due care, 102. what must be alleged in actions for injury or death by, 103. plaintiff must show that omission of the signals contributed to the, 107. COMMON EMPLOYMENT, under Acts, 1883, ch. 243, the doctrine of, affords a good defence, 101. under Acts, 1887, ch. 270, the doctrine of, abolished, 118. but only in the cases that come within the act, 118. COMMON LAW, towns not liable at, for defects in highways, 1. the liability of employers at, not affected by act of 1887, 115, 116. CONDITION PRECEDENT, showing that the town might have remedied the defect, a, 37. showing that the town had, or might have had, notice of the defect, a, 43. the giving of notice of the time, etc., of the accident, a, 47, 187. section 5 of acts of 1887 does not create a, 200. INDEX. 231 [References are to sections.] "CONNECTED WITH OR USED IN THE BUSINESS OF THE EMPLOYER," what must be shown under this provision, 143. general application of the rule under the provision, 144.. application of rule to foreign cars, 145. CONSCIOUS SUFFERING, under Public Statutes, ch. 112, ss. 212, 213, action may be maintained for death preceded by, 84. but no damages can be recovered for, 102, n. under Acts, 1887, ch. 270, death that is preceded by, 175. the amendment of 1892 does not limit the right to sue for, 175. who is entitled to the damages recovered in a suit for death preceded by, 175. who is entitled to sue where death is without, 177. who is entitled to damages recovered for death with- out, 177. upon whom burden of proving death without, rests, 179. what constitutes death without, 180. CONSTRUCTION, of the Highway Act, 3. of the Employer's Liability Act, 114. CONTRACTOR. (See INDEPENDENT CONTRACTOR.) CONTRIBUTORY NEGLIGENCE. (See DUE CARE.) CONTROL OF HORSE, plaintiff cannot recover if he had lost, when injured, 10. unless loss of, was only momentary, 10. CONVERSATIONS, evidence of, to supply deficiencies in notice of accident, not admissible, 49, n. 5, 56. but competent to show that town was not misled by notice given, 54, n. 3. 232 INDEX. [References are to sections.] COUNTS OF DECLARATION, under Acts, 1887, ch. 270, plaintiff may join counts at common law and counts under the act, 116. may be required to elect on which he will stand 116. no exception will be sustained when required to so elect, 116. plaintiff may also join counts based on different clauses of section 1, 117. cannot be required to elect between them, 117. CROSSING. (See GRADE CROSSINGS.) D. DAMAGES, under Public Statutes, ch. 102, s. 93, for what may be recovered, 79. for medical attendance and care of minor, 79, n. 3. the elements of, 80. the practice with respect to doubling the, 81. under Acts, 1887, ch. 270, amount of, recovered for conscious suffering, a part of estate of deceased, 175. amount of, recovered for the death in such case not a part of his estate, 175. amount of, recovered for instantaneous death not a part of his estate, 177. section 3 fixes the limits of the, 186. DEATH, under Public Statutes, ch. 52, action for, independent, 4. the giving of notice of the accident in case of, 60. under Public Statutes, ch. 112, s. 212, liability for causing, purely statutory, 82. liability same whether death instantaneous or not, 84. ' INDEX. 233 [References are to sections.] DEATH, Continued. under Acts, 1887, ch. 270, action for the, survives, 127. section 1 does not make, a substantive cause of action, 173. the act recognizes two kinds of, 175. that which is not instantaneous, 175. the limitation of the right of action for that kind of, 175. who is entitled to the damages recovered for that kind of, 175. amendment of 1892 makes, a substantive cause of action, 176. death that is instantaneous, 177. object of making that kind of, a cause of action, 177. who may sue in case of instantaneous, 127, 177. who is entitled to the damages recovered, 177. upon whom burden of showing instant, rests, 179. what constitutes, without conscious suffering, 180. limits of the amount recoverable for, 186. DECLARATION. (See COUNTS OF DECLARATION.) DEDICATION, highways established by, 34. DEFECT, in the highway, within the location of a railroad, 2, 41. mode of coming upon the, immaterial, 13. must be the proximate cause of the injury, 16. also the sole cause of the injury, 17. origin of the, not material, 17. what constitutes a, 18. need not endanger all modes of travel, 18. that it is concealed may not be material, 18. the cause of the, 19. must be in the travelled part, 20. 234 INDEX [References are to sections.] DEFECT, Continued. in the highway, continued. exceptions to that rule, 20. snow and ice as a, 21. an illegal use of the highway as a, 22. a failure to light the highway not a, 23. insecure projections as a, 24. objects that cause horses to take fright as a, 25. in the ways, works, or machinery, relation of the, to the injury, 131. what are defects in, within clause 1, 132. temporary, not within clause 1, 132. where employee fails to use safe appliances, no, 136. DELEGATION, the duty to repair the highway not avoided by, 42. DEPENDENCE, the burden is upon the next of kin to prove, 183. evidence showing the mere fact of, sufficient, 183, 184. what constitutes, 184. DISCONTINUANCE OF HIGHWAY, effect of, 42, n. 1. DISCOVERED OR REMEDIED, it must appear that the defect was capable of being, 147. meaning of the word " remedied," 148. DOGS, the liability for injuries by, 69-81. what acts of, may serve as the basis of an action, 76. the intent of the dog in doing the act not material, 77. the character of the dog not material, when, 78. and when material, 78. where the injury is done by two, together, 80, n. DUE CARE, under Public Statutes, ch. 52, burden rests on plaintiff to show, 5. the standard, 5. as to manner of travelling and equipment, 5. INDEX. 235 [References are to sections.] DUE CARE, Continued. under Public Statutes, ch. 52, continued. the standard applied to infants, 5. when may be inferred, 5. the effect of intoxication, 6. the effect of defective eyesight, 6. effect of knowledge of the existence of the defect, 7 Q /, y. effect of violation of law or city ordinance, 8. under Public Statutes, ch. 102, s. 93, extent of application of the doctrine of, 72. not the same degree of care exacted from a child, 72. degree of care exercised by child's mother im- portant, 72. under Public Statutes, ch. 112, s. 212, of a passenger need not be shown, 94. of one not a passenger must be shown, 95. under Public Statutes, ch. 112, s. 213, plaintiff need not show, 102. gross negligence a defence only, 108. under Acts, 1886, ch. 140, of a passenger need not be shown, 111. of one not a passenger must be shown, 111. under Acts, 1887, ch. 270, the common law doctrine of, retained, 128. also common law rule as to burden of establishing, 128. some principles of the law of, that have been ap- plied, 129. the doctrine of, applies also where employee is killed, 178. how due care of deceased may be shown, 178. DUTY, to repair the highway, source of the, 1. the means for enforcing the performance of the, 1. 236 INDEX. [References are to sections.] DUTY, Continued. to repair the highway, continued. is the measure of the liability for defects, 2. extent of the, 40. not affected by the location of other roads within the highway, 2, 41. the limits of that rule, 41. not avoided by delegation, 42. of employers, not to supply latest and best machinery, 134. to furnish and maintain safe appliances, 149. limits to the extent of that duty, 149. relative to inspection, 150. to give instruction, 150, n. general limits to, 162. not bound to inspect exploders, 162. not bound to warn of momentary, passing risks, 162. of railroads, toward trespassers, 99, 1 13. E. ELECTRIC CAR, not a locomotive engine or train upon a railroad, 171. ELECTRIC LIGHT COMPANIES, construction of act imposing liability upon, 202. not liable for personal injuries under Acts, 1883, ch. 221, 201, n. EMPLOYEE, under Acts, 1883, ch. 243, rights of, 101. under Acts, 1887, ch. 270, waiver by, of rights given, 121. position of, when suing, 174. EMPLOYERS' LIABILITY ACT, construction of, 114. general effect of, 115. INDEX. 237 [References are to sections.] EMPLOYERS' LIABILITY ACT, Continued. judgment in action under, bars action at common law, 116. destructive operation of, 118. creative operation of, 119. application of, to municipal corporations, 120. s. 1, cl. 1, of, enlarges liability of employers, 130, 151. s. 1, cl. 2, of, also enlarges liability of employers, 153. general effect of s. 1, cl. 3, of, 163. the scope of s. 1, cl. 3, of, 164. the effect of the amendment of 1892, 176. the subject matter and object of s. 2 of, 177, 185. the subject matter of s. 3 of, 186. the effect of s. 4 of, 198. s. 5 of, creates, not a condition, but a defence, 200. EMPLOYMENT, meaning of phrase, " in the, of such corporation," 96. who comes within the phrase, 96. "ENTRUSTED WITH AND EXERCISING SUPER- INTENDENCE," the foreman must be intrusted with superintendence, 157. must act within the scope of that superintendence, 157. must be exercising superintendence, 158. ESTOPPEL, accident at crossing established by, 104, n. EVIDENCE, of ability of the town to remedy defects, 38. of constructive notice of defects, 46. of conversations as to the time, place, etc., of the acci- dent, 49, n. 5, 54, n. 3, 56. of the acts of other persons, as tending to show a defect, 62. of the existence of similar defects in other places, 63. of the state of the highway at other times, 64. of the habitual condition of the place of the accident, 64, n. 3. 238 INDEX. [References are to section*.] EVIDENCE, Continued. of admissions of the existence of a defect, 65. of similar conditions, to show that defect might have been remedied, 66. of the expense of repairing the highways, 67. of the notoriety of the defect, to show notice, 68. of expert as to existence of defect in highway, not com- petent, 65, n. 2. of omission to give the statutory signals, 106. of a habit of giving or omitting them, 106. to show that the omission of them contributed to the injury, 107. EXCAVATIONS IN THE HIGHWAY, the erection of barriers to guard, 28. EXPERT TESTIMONY, as to the existence of a defect in the highway, not com- petent, 65, n. 2. EXPLODERS, employer not liable for failure of superintendent to in- spect, 162. EXPLOSIVES, as a part of the employer's ways or works, 141. EXTRANEOUS SUBSTANCES, as defects in ways, works, or machinery, 133. EYESIGHT, effect of defective, under Public Statutes, ch. 52, 6. F. FARE, how far payment of, essential to relation of passenger, 91. the payment of, may be in services rendered, 91. FEDERAL COURTS, no action can be maintained in, under Public Statutes, ch. 112, s. 212, 83, n. 4. actions in, under Acts, 1887, ch. 270, 126. INDEX. 239 [References are to sections.] FOOTWAYS, liability as to, by prescription in Boston, 33, n. 1. liability as to, across a common, 36, n. 2. by the side of a country road, 36, 11. 2. established by dedication, 34, n. 1. town not liable if used for other purposes, 34, n. 1. G. GAS COMPANIES, construction of the act imposing liability upon, 202. GENERAL DENIAL, evidence of a violation of law admissible under, 8. GRADE CROSSINGS, under Public Statutes, ch. 112, s. 212, the liability for accidents at, 86, 102. what precautions are required at, 86. under Public Statutes, ch. 112, s. 213, the liability for accidents at, 102. what must be alleged in the declaration, 103. what kind of, come within the statute, 104. GROSS NEGLIGENCE, under Public Statutes, ch. 112, ss. 212, 213, of servants, distinct from negligence of railroad, 85. on part of its servants must be alleged, 87. and proved, 87. of a person killed at grade crossing a defence, 108. meaning of phrase, 108. under Acts, 1886, ch. 140, of servants, distinct from negligence of railway, 111. on part of servants must be alleged and proved, 111. H. HABIT OF DOG, value of evidence of, 78. 240 INDEX. [References are to sections.] HIGHWAY, the liability of towns for defects in, 1-61. to be used for purpose of travel, 11. for what purposes may not be used, 11. motive for using for travel immaterial, 12. an illegal use of, not a defect in, 22. the modes of establishing, 31. the plaintiff must show the way where the accident hap- pened to be, 31. established by statute mode, 32. established by prescription, 33. established by dedication, 34. effect of evidence of repairs made in, within six years, 35. distinction between, and town way, 30, n. 5. HORSE, plaintiff cannot recover if he had lost control of his, 10. unless loss of control of, was only momentary, 10. objects that frighten plaintiff's, as defects in the way, 25. HUSBAND AND WIFE, under Public Statutes, ch. 52, no action lies for loss of services of wife, 3. signing of the notice of the accident by husband, 57. I. ICE, constitutes a defect in the highway, when, 21. when not a defect in the highway, 21. recent legislation as to, and its effect, 21. ILLEGAL USE, of the highway, not a defect therein, 22. IMPLICATION, liability of towns cannot be narrowed by, 2. INACCURACY OF NOTICE OF THE ACCIDENT, effect of, where no intention to mislead, 54. could not be waived by town prior to 1894, 49, n. 5. INDEX. 241 [References are to sections.] k INACCURACY OF NOTICE OF THE ACCIDENT, Continued. " inaccuracy " covers insufficiency as well as actual mistake, INCAPACITY TO GIVE NOTICE OF THE ACCIDENT, burden rests upon plaintiff to show, 59. what must be shown to sustain this burden, 59. is a question of fact for the jury, 59. INDEPENDENT CONTRACTOR, common law liability of employers to employees of, 198. effect of Employers' Liability Act upon this liability, 198. the, may be the " person entrusted," 199. INFANT, the degree of care exacted from, 5, 72. the degree of care exercised by mother of, important, 72. action for loss of services, etc., lies where injured by a dog, 79, n. 3. an unborn, as a " person," 14. INNOCENT INTERVENING ACTS, effect of, as concurrent causes, 17. what acts may be, 17. INSPECTION, the employer's duty relative to, 150. employer responsible for acts of employee charged with duty of, 150. INSTANTANEOUS DEATH. (See DEATH.) the giving of notice of the accident in cases of, 195. "IN THE CONDITION," meaning of the phrase, 139. INTOXICATION, effect of, in case of injury on the highway, 6. J. JOINDER OF COUNTS. (See COUNTS OF DECLARA- TION.) 16 242 INDEX. [References are to sections.] K. KEEPER OF A DOG. (See OWNER OR KEEPER.) what constitutes a, 75. temporary harboring not enough, 75. whether or not defendant a, is a question for the jury, 75. KNOWLEDGE, of existence of defect in highway, effect of, 7, 9. L. LADDERS, as a part of the employer's ways or works, 142, 144. LIABILITY, of towns for defects in highways, 1-61. of owners or keepers of dogs, 69-81. of steam railroads, 82-108. of the proprietors of steamboats, etc., 109. of street railways, 110-113. of employers, 114-200. LIABILITY OVER, in case of injuries received on the highway, 19, n. in case of injuries received by defect in employer's ways, etc., 200, n. LICENSEE, no recovery for death of, under Public Statutes, ch. 112, s. 212, 99. LIGHT, failure to, highway not a defect therein, 23. LOCOMOTIVE ENGINE. (See SIGNAL, SWITCH, LOCO- MOTIVE ENGINE, OR TRAIN.) must be upon a railroad at time of the accident, 172. an electric car not a, 171. LOCUS OF INJURY, under Public "Statutes, ch. 102, s. 93, no recovery if plaintiff injured outside the State, when, 73. INDEX. 243 [References are to sections.] LOCUS OF INJURY, Continued. under Public Statutes, ch. 112, s. 212, need not be tracks owned by defendant, 89. LOSS OF SERVICES, husband cannot maintain action for, of wife injured on highway, 3. father can maintain action for, of infant injured by a dog, 79, n. 3. M. MACHINERY. (See WAYS, WORKS, OR MACHINERY.) employer not bound to furnish latest and best, 134. MASTER AND SERVANT, effect of the relation, under Public Statutes, ch. 52, 14. under Acts, 1883, ch. 243, 101. under Acts, 1887, ch. 270, 118, 122, 125, 174. METROPOLITAN PARK COMMISSION, liability for defects in ways under the control of, 3G, n. 2. MISLEAD, effect of inaccuracy of notice where no intention to, 54. MOMENTARY DANGERS. (See TEMPORARY DEFECTS.) MUNICIPAL CORPORATIONS, liability of, for defects in highways, 1-61. liability of, under Acts, 1887, ch. 270, 120. N. NEGLIGENCE, under Public Statutes, ch. 112, s. 212, of the corporation and of its servants distinct, 85. effect of the distinction upon pleadings and proof, 85. of the corporation, 86. of the corporation at grade crossings, 86. 244 INDEX. [References are to sections.] NEGLIGENCE, Continued. under Public Statutes, ch. 112, s. 212, continued. of its servants must be alleged and proved to be gross, 87. of a passenger affords no defence, 94. of one not a passenger affords a defence, 95. evidence of, on part of corporation must be shown, 100. under Public Statutes, ch. 112, s. 213, mere, of person killed affords no defence, 102. plaintiff must show that, as to signals contributed to the injury, 107. evidence competent on that issue, 107. gross, of person killed affords a defence, 108. under Acts, 1886, ch. 140, of the corporation and of its servants distinct, 111. effect of distinction upon pleadings and proof, 111. under Acts, 1887, ch. 270, of the employer and his employees distinct, 181. effect of that distinction, 181. NEXT OF KIN, right of, to amount recovered where employee not in- stantly killed, 175. right of, to maintain action where he is instantly killed, 177, 182. right of, to amount recovered where he is instantly killed, 177. must show that deceased was in exercise of due care, 178. how that burden may be sustained, 178. must show that deceased was instantly killed, 179. or that he died without conscious suffering, 179. the fact may be inferred from all the evidence, 179. any one of the, who is dependent can bring the suit, 182. must show that he or she was dependent, 183. whether or not dependent a question of fact, 184. INDEX. 245 [References are to sections.] NOTICE, of the existence of the defect in the highway, plaintiff must show that town had, or might have had, 43. who must be shown to have, 44. what is actual, 45. notice of a cause that may produce a defect, not, 45, n. constructive, 46. evidence tending to show constructive, 46, 68. evidence of causes that may produce defects, effect of, 4(5. of the time, etc., of an accident in the highway, object of requiring the giving of, 47. effect of requiring the giving of, 47. only required in cases under the statute, 48. what is a sufficient, 49. the sufficiency of, is a question of law, 49. insufficiency of, could not be waived prior to 1894, 49, n. 5. insufficiency of, where no intention to mislead, 54. the statement of the time of the accident, 50. the statement of the place of the accident, 51. the statement of the cause of the accident, 52. must be wholly in writing, 56. by whom, may be signed, 57. the service of, by whom made, 58. the service of, upon whom made, 58. incapacity to give, the burden of showing, 59. incapacity to give, what constitutes, 59. the giving of, in case of death, 60. of the time, etc., of the accident to an employee, in what cases required, 187, 196. the requirement of, creates a strict condition pre- cedent, 187. the object of requiring the giving, 188. the construction of, 188. 246 INDEX. [References are to sections.] NOTICE, Continued. of the time, etc., of the accident to an employee, continued. the sufficiency of, is a question of law, 188. the statement of the time of the accident, 189. the statement of the place of the accident, 190. the statement of the cause of the accident, 191. the kind of negligence need not be stated, 191. more than one cause may be stated, 191. notices that have been held sufficient, 190, n. the service of, 192. the signing of, by the attorney, 194. the giving of, where death is instantaneous, 195. when insufficiency of, immaterial, 197. the allegation of, in the declaration, 193. o. ORDINANCE, effect of violation of city, when injured on highway, 8. OWNER OR KEEPER, the liability of, of a dog, several only, 74. but phrase affords two grounds of liability, 74. what constitutes a keeper of a dog, 75. temporary harboring of dog not enough, 75. whether defendant a keeper is question for the jury, 75. words are descriptive averments, and must be strictly proved, 74, n. 2. P. PARTIALLY COMPLETED STRUCTURES, as part of the employer's ways or works, 142. PASS, effect of travelling upon, which releases the railroad, 83. employee travelling upon, when in " employment of such corporation," 96. INDEX. 247 [References are to sections.] PASSENGER, under Public Statutes, ch. 112, s. 212, when the relation arises, 90. from what circumstances relation inferred, 90. the circumstance of place, 90. the circumstance of manner, 90. the circumstance of time, 90, u. the payment of fare, how far essential, 91. termination of the relation by his own acts, 92. leaving the train while in motion, 92. leaving the train before the station is reached, 92. termination of the relation in the usual course, 93. plaintiff need not show the due care of, 94. the negligence of, affords no defence, 94. under Acts, 1886, ch. 140, plaintiff need not show due care of, 111. meaning of the word, more limited, 112. PASSING RISKS. (See TEMPORARY DEFECTS.) PATHS, necessarily used, as a part of employer's ways, 140. PENAL LEGISLATION, the statute imposing liability upon towns as, 3. the liability of owners or keepers of dogs, not, 69. the liability of railroads for causing death, essentially, 83. PERSON, who is, under Public Statutes, ch. 52, 14. why the word is used in that statute, 39. meaning of the word in Public Statutes, ch. 102, s. 93, 79. PERSON IN CHARGE OR CONTROL, assumption of risk of negligence of, 125. who may be, 165. what is meant by the phrase, 166, n. the legislative definition of, 166. 248 INDEX. [References are to sections.] PERSON INTRUSTED, with duty of looking out for defects in ways, etc., 152. the requirements of, 152. PLACE. (See Locus OF INJURY.) statement of the, of the accident in notice, 51, 190. PLAYING, upon the highway when injured, effect of, 11. PLEADING, when defect relied on is a want of railing, 30. variance between cause of accident as stated in notice and as proved at trial, 52, n. 4. variance between declaration and proof as to character of defect in employer's ways, etc., 138. (See COUNTS OF DECLARATION ) POSITION, of employee suing under Acts, 1887, ch. 270, 174. PREMISES, of third persons, as part of employer's ways or works, 144. PRESCRIPTION, highways established by, 33. the time of, 33, n. 2. PRINCIPAL DUTY. (See SOLE OR PRINCIPAL DUTY.) PRIVATE SIDEWALKS, the liability for defects in, 36, n. PRIVATE WAYS, the liability of towns for defects in, 36. PROCEDURE, provisions as to, in Acts, 1887, do not apply to common law actions, 116. PROJECTIONS, over highway, how far defects therein, 24. PUBLIC ALLEYS, liability for defects in, in Boston, 36, n. INDEX. 249 ^References are to sections.] K. RAILINGS, the duty of towns to erect, 26. the test of the necessity of, 27. how near the dangerous spot must be to make, neces- sary, 27. what other elements are to be considered, 27. erected to close a highway, 28. the kind of, required, 29. pleading, when the defect relied on is a want of, 30. RAILROAD, under Public Statutes, ch. 112, s. 212, meaning of phrase "operating a railroad," 88. meaning of " while engaged in its business," 89. passenger upon, 90-94. under Public Statutes, ch. 73, s. 6, no liability upon a corporation operating a, 109. under Acts, 1887, ch. 270, what constitutes a, within clause 3, 171. as to the motive power, 171, 171, n. (See UPOX A RAILROAD.) RELEASE, railroads cannot secure, from liability for causing death, 83. by employee of rights given by Acts, 18S7, 121. REMEDIED. (See DISCOVERED OR REMEDIED.) REMEDY, absence of right to, defects in highway a defence, 19. plaintiff must show that town might, defects in high- way, 37. REPAIRS, effect of evidence of, made in highway within six years, 35. towns are bound to make, in highway as located only, 32, n. 2. extent of the duty of the town to make, 40. no duty to make, where other provision therefor, 40. 250 INDEX. [References are to sections.] REPAIRS, Continued. no duty to make, outside their territorial limits, 40. bound to make, so as to meet ordinary exigencies of travel, 40. duty to make, not affected by location of other roads within highway, 41. exceptions to that rule, 41. the duty not avoided by delegation, 42. RES IPSA LOQUITUR, application of maxim under Acts, 1887, ch. 270, 174. RIGHT OF ACTION, when complete, under Public Statutes, ch. 52, 53. in whom vested, in case of death that is not instantane- ous, 175. in whom vested, in case of instantaneous death, 177. RUBBISH, as a defect in the employer's ways or works, 133. s. SAFETY CONTRIVANCES, failure to furnish, not a defect in ways, works, or ma- chinery, 134. SCIENTER, need not be alleged or proved, 70. SERVANTS OR AGENTS, the gross negligence of, 85, 87. what acts of, come within Public Statutes, ch. 112, s. 212, 89. SERVICE OF NOTICE, under Public Statutes, ch. 52, by whom made, 58. upon whom made, 58. under Acts, 1887, ch. 270, how may be made, 192. SHADE TREES, as defects in the highway, 24, n. INDEX. 251 [References are to sections.] SIGNAL, SWITCH, LOCOMOTIVE ENGINE, OR TRAIN, clause 3 applies to negligence in the management of a, only when same is completed, 164, 169. what constitutes a train, 170. the legislative definition of a train, 170. person in control of switch, not in charge or control of train, 169, n. SIGNALS AT GRADE CROSSINGS, omission of, under Public Statutes, ch. 112, s. 212, evi- dence of negligence, 86, 102. omission of, under Public Statutes, ch. 112, s. 213, fixes the liability, 102, 105. the common law liability for failure to give, 102, n. evidence of the omission to give, 106. value of that evidence, 106. SIGNING OF NOTICE OF THE ACCIDENT, ' under Public Statutes, ch. 52, 57. under Acts, 1887, ch. 270, 194. SNOW AND ICE, constitutes a defect in highway, when, 21. when not a defect, 21. recent legislation as to, and its effect, 21. SOLE OR PRINCIPAL DUTY, phrase makes provision for two classes of cases, 159. meaning of words " principal duty," 159. superintendence as a sole duty, 160. effect of showing that superintendence was the sole duty, 160. superintendence as a principal duty, 161. STAGE COACHES, the liability of proprietors of, 103. STAGING, as part of the employer's ways or works, 142. STATE HIGHWAY, who is liable for defects in, 30, n. 4. 252 INDEX. [References are to sections.] STATUTORY DUTY, employee cannot assume the risk that employer will fail to perform, 123. STATUTORY SIGNALS. (See SIGNALS AT GRADE CROSS- INGS.) STEAMBOATS, the liability of proprietors of, 109. STREET CAR. (See ELECTKIC CAR.) STREET RAILWAY, liability of, for injuries suffered on highway during con- struction, etc., 41, n. 5. company operating a, not liable under Public Statutes, ch. 73, s. 6, 109. Acts, 1886, ch. 140, creates a new remedy against, 110. construction of that act, 111. the question of the due care of the deceased, 111. a passenger upon a, 112. SUPERINTENDENCE, it must appear that foreman's sole or principal duty was, 159. as a sole duty, 160. effect of showing, to be the sole duty, 160. as a principal duty, 161. meaning of the words " principal duty," 159. whether, the principal duty a question of fact, 161. the act complained of must be an act of, 161. SUPERINTENDENT, assumption of risk of the negligence of, 125. duty of, to look out for safety of employees, 129. of what negligence of, may consist, 154. negligence of, need not be sole cause of the injury, 155. definition of a, 156. must have superintendence intrusted to him, 157. must be acting within scope of that superintendence, 157. must be exercising superintendence, 158. superintendence must be his sole or principal duty, 159. INDEX. . 253 [References are to sections.] SUPERINTENDENT, Continued. must be acting as, when doing the negligent act, 161. the negligent act must be an act of superintendence, 161. employer net liable for every negligent act of his, 162. not liable for his failure to inspect exploders, 162. nor for his failure to give warning of passing dangers, 162. but if the duty of, to give warning, employer liable if he omits to give it, 162. SWITCH. (See SIGNAL, SWITCH, LOCOMOTIVE ENGINE. OK TRAIN.) T. TELEGRAPH COMPANIES, the liability of, 201. TEMPORARY DEFECTS, employer not bound to guard against, 149, 162. not defects in employer's ways, works, or machinery, 132. TEMPORARY STRUCTURES, as a part of the employer's ways or works, 142. TENDER, under Public Statutes, ch. 52, s. 22, meaning of word as used in the section, 61. effect of making, 61. TIME OF THE ACCIDENT, under Public Statutes, ch. 52, meaning of the phrase, 5, n. statement of, in the notice, 50. under Acts, 1887, ch. 270, statement of, in the notice, 189. TOWNS. (See MUNICIPAL CORPORATIONS.) TRAIN, what it is to have the " charge or control " of, 166. the engineer may have the charge or control of, 167. the conductor may also have charge or control of, 167. 254 INDEX. [References are to sections.] TRAIN, Continued. person in charge or control of, need not be actually upon, 168. what constitutes a, 170. the legislative definition of, 170. an electric car not a, '171. clause 3 applies to negligence in the management of, only when completed, 164, 169. TRAVEL ON THE HIGHWAY, whatever renders unsafe, a defect, 18. the purpose of, immaterial, 12. TRAVELLED PART OF HIGHWAY, towns liable only for defects in, 20. exceptions to this rule, 20. meaning of the phrase, 20, n. TRAVELLED PLACE, what is a, within Public Statutes, ch. 112, s. 212, 104, n. TRAVELLER, plaintiff must be, upon the highway when injured, 11. what constitutes a, upon the highway, 11. whether plaintiff is, a question for the jury, 11. TRESPASSER, under Public Statutes, ch. 112, s. 212, the duty owed to, 99. no recovery for the death of, 99. person killed at crossing over way not duly estab- lished, is a, 99, n. 2. under Acts, 1886, ch. 140, no recovery for the death of, 113. u. UNSUITABLENESS, of safe appliances as defect in ways, works, or ma- chinery, 136. INDEX. 255 [References are to sections.] "UPON A RAILROAD," construction of the word " railroad," 171. an electric car, not a locomotive engine or train, 171. the locomotive engine or train must be, at time of ac- cident, 172. V. VALUATION OF TOWNS, burden of showing, to lessen damages rests on town, 55. VARIANCE, between cause of accident as stated in notice and as proved at trial, 52, n. 4. between declaration and proof as to character of defect in employer's ways, etc., 138. VENUE, of actions against towns for injuries on the highway, 68, n. 4. changes of, 68, n. 4. VIOLATION OF LAW, effect of, under Public Statutes, ch. 52, 8. effect of, under Public Statutes, ch. 102, s. 93, 71. evidence of, admissible under general denial, 8. VOLENTI NON FIT INJURIA, application of maxim to cases under Public Statutes, ch. 52, 9. application of maxim to cases under Acts, 1887, 124, 125. W. WAIVER, by town of insufficiency of notice of accident not pos- sible prior to 1891, 49, n. 5. by employee of rights given by Acts, 1887, ch. 270, 121. WARNING, right of employee to rely upon superintendent to give, 129. 256 INDEX. [References are to sections.] WARNING, Continued. right of employee to rely upon condition of ways or works to give, 129. at grade crossing. (See SIGNALS.) WAYS, WORKS, OR MACHINERY, assumption of risk of defects in, 122. right of employee to rely upon something in, to give warning, 129. common law duty of employers to furnish safe, 130. defect in, must be pi'oximate cause of injury, 131. what defects in, come within Acts, 1887, 132. ordinarily temporary defects in, not within act, 132. extraneous substances as defect in, 133. failure to supply safety contrivances as defect in, 134. negligent use of safe appliances as defect in, 135. unsuitableness of safe appliances as defect in, 156. a dangerous method of carrying on business as defect in, 137. variance in proof of defect in, 138. defect " in the condition " of, 139. paths necessarily used as a part of, 140. explosives as a part of, 141. partially completed structures as a part of, 142. temporary structures as a part of, 142. connected with or used in employer's business, 143-145. premises owned by third parties as a part of, 143, 144. appliances used without employer's authority as part of, 143, 144. foreign cars as a part of, 145. " WHICH AROSE FROM," effect of the provision, 146. WIDOW, . entitled to amount recovered for death where deceased not instantly killed, 175. right of, to maintain action where deceased instantly killed, 177, 182. INDEX. 257 [References are to sections.] WIDOW, Continued. entitled to amount recovered where death instantaneous, 177. must show that deceased was in exercise of due care, 178. how this burden may be sustained, 178. must show that deceased was instantly killed, 179. or died without conscious suffering, 179. how this burden may be sustained, 179. -' . K-. "* r*4 O /ROC. "