consistent with the mode of conveyance employed. The car or train was in control of the conductor, and he was required to know, if by the exercise of due care, caution, and diligence in the discharge of his duties he could know, whether any person was attempting to get on or off his train or car, before permitting the same to start in such manner as would be liable or likely to injure a person so getting on or off the same. * * * "9 Winona, etc., R. Co. v. Rousseau, supra; McCurdy v. United Trac. Co., 15 Pa. Super. Ct. 29; Leavenworth Elec. R. Co. v. Cusick, 60 Kan. 590, 57 Pac. 519, 72 Am. St. Rep. 374; Nichols v. Lynn, etc., R. Co., 168 Mass. 528, 47 N. E. 427; Haluptzok v. Railway Co., 55 Minn. 446, 57 N. W. 144, 26 L. R. A. 739; Booth v. Mister, 7 Car. & P. 66 (1); Metropolitan R. R. Co. v. Jones, 1 App. D. C. 200; Birmingham, etc., R. Co. v. Smith, 90 Ala. 60, 8 South. 86, 24 Am. St. Rep. 761; Thompson on Negligence, §§ 1959, 3523; Nellis, St. Sur. R. R., page 463. * [3] 2. "When a person desires to take passage on a street car, and signals such car, indicating his intention, if such person be at a point or place on the line where such a car is required to stop to receive passengers, if the car is stopped, the company thus extends an invitation to such person to become a passenger, and he has a right to enter. He becomes a passenger under such circumstances as soon as he steps upon the running board or steps of the car, and the company is bound to treat him as a passenger. This proposition presupposes the fact that the employés in charge of the car are aware of the facts stated." (Our italics.) Citzens', etc., R. Co. v. Merl, 26 Ind. App. 290, 59 N. E. 493, and authorities there cited. [4] 3. It is the duty of a common carrier operating a street car to give to persons intending to become passengers for whom they stop at their usual stopping places a reasonable opportunity to board their cars. Citi zens', etc., R. Co. v. Merl, supra, 26 Ind. App. 291, 59 N. E. 491, and authorities cited. [5] 4. "Ordinarily negligence is a question of fact for the jury to determine from the evidence, and not for the court to declare as a matter of law; ‘and it is only when the standard of duty is fixed and certain, or where the negligence is so clear and palpable that no verdict could make it otherwise, that the question of negligence becomes one of law and not of fact." Indiana, etc., Co. v. Sullivan, 101 N. E. 401-406, and authorities there cited; Buehner Chair Co. v. Feulner, 164 Ind. 368, 373, 73 N. E. 816, and authorities there cited; Anderson v. Citizens', etc., R. Co., 12 Ind. App. 194, 196, 38 N. E. 1109; Hoggatt v. Evansville, etc., R. Co., 3 Ind. App. 437, 442, 29 N. E. 941; Pennsylvania Co. v. Hensil, 70 Ind. 569, 575, 36 Am. Rep. 188; Wabash, etc., Co. v. Locke, 112 Ind. 404, 422, 14 N. E. 391, 2 Am. St. Rep. 193. the court directs a particular verdict, if the jury should find from the evidence certain facts to exist, the instruction must embrace all the facts and conditions essential to such a verdict." American, etc., Tin Plate Co. v. Bucy, 43 Ind. App. 501, 87 N. E. 1051, and cases there cited. Lake Shore, etc., Co. v. Johnson, 172 Ind. 548, 550, 551, 88 N. E. 849, and cases cited. [7] An application of the foregoing principles to the instruction under consideration can lead to but one conclusion. It completely ignored the possibility of appellee's agents being guilty of negligence in any respects other than as therein indicated, and, by directing the jury to return a verdict for appellee in case they found the facts enumerated therein, the court in effect assumed that such agents were not negligent in any other respect, and thereby and to such extent invaded the province of the jury, and determined for the jury one of the questions, which, under the law, it was the jury's right and duty to determine. Upon this question our Supreme Court in the case of Wabash Co. v. Locke, supra, at page 422 of 112 Ind., at page 399 of 14 N. E. (2 Am. St. Rep. 193), said: "It would be a serious inroad on the province of the jury, if, in a case where there are facts from which negligence may reasonably be inferred, the judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred." We do not mean to say that the court may not assume or state hypothetically in an instruction the facts within the issues and evidence, and direct the jury to return a verdict for the one party or the other in case they find that such facts have been proven; but when the court undertakes to state the facts upon which a verdict may be returned for either party, it must state in its instruction every fact essential and necessary to a recovery by the party in whose favor the verdict is directed. Under the instruction in question the appellee was entitled to a verdict even though the motorman may have seen and known that appellant was not on the car, but in a place of danger when he, the motorman, received the starting signal and started the car, and appellee was likewise entitled to recover, though such motorman may have carelessly and recklessly started the car with an unusual and unnecessary jerk and suddenness, and though the conductor may have heard the starting signal given by the passenger in time to have countermanded it before the car started. In discussing an instruction involving this last proposition the Supreme Court of Illinois in the case of North Chicago, etc., Co. v. Cook, supra, said: "It is also insisted that the court erred in giving the following instruction: 'If the jury believe from the evidence that some person not in the employment of the defendant train at the time in question, still that fact | Supreme Court in the case of Louisville, etc., will not exempt the defendant company from Co. v. Korbe, supra, at pages 456, 457, of 175 liability in this case, provided the jury be- Ind., at page 769 of 94 N. E., said: "The lieve from the evidence that the conductor court having erred in giving the instruction, could, by use of due care and diligence, have the legal presumption follows that such error countermanded the unauthorized signal for was prejudicial to appellant, and the burden starting the train in time to have prevented is on appellee to show the contrary by the any injury to the plaintiff, if he (the conduc- record." See, also, Cleveland, etc., R. Co. tor) had exercised due care and diligence in v. Case, 174 Ind. 369, 91 N. E. 238. These the discharge of his duties, and provided the answers rather tend to show that, in the rejury believe from the evidence the plaintiff turn of its general verdict, the jury followed at the time in question was in the exercise of the directions given in the instruction, bereasonable care and diligence for his own cause such answers show that the jury safety.' The point made is that the instruc- found, in effect, the particular facts to extion ‘failed to submit to the jury the ques- ist which the instruction told it would aution as to whether or not reasonable care on thorize such verdict. The answers found the part of the conductor required that he nothing upon the subject of negligence as to should have countermanded the signal, even the manner of the starting of the car, nothif he could have done so in time to have pre- ing upon the subject of what actual knowlvented the injury to the plaintiff,' and that, edge appellee's motorman had as to whether as a matter of law, the fact that the conductor appellant was on the car or in a place of might, 'by the exercise of due care and dili- danger when he started it, and nothing upon gence, have countermanded the signal,' even the subject of what the conductor did, or by if the conductor did not know, and had no the exercise of that high degree of diligence reasonable ground to believe, that any one and care required of him could have done, in was attempting to get upon the car, would the way of countermanding, before the car make appellant liable, although the signal was started, the starting signal so given by had been given by a stranger. We see no ob- the passenger. As in the case just quoted jection to the instruction. It was the duty from, so in this "the answers of the jury to of appellant to stop its car a sufficient length interrogatories propounded to it do not susof time to enable appellee to get fully and tain the contention of appellee that the error safely on the same." See, also, Nichols v. in giving the instruction was harmless." Lynn, etc., Co., 168 Mass. 528, 47 N. E. 427, and cases there cited. We think it clear under the numerous authorities herein cited that the facts, hypothetically stated by the court, in the instruction in question were not such as to enable it to say conclusively and as a matter of law that the verdict should be for the appellee, in case the jury found such facts to be proved, but, assuming such facts to be true, it still remained to be determined under the evidence, whether defendant's servants in all respects other than those included in the instruction had observed that "utmost and highest degree of care, skill, and diligence," for appellant's safety when she was attempting to board appellee's car required by the authorities before cited, and for this reason the giving of the instruction was clearly error. Pittsburgh, etc., Co. v. Wright, 80 Ind. 236; American, etc., Tin Plate Co. v. Bucy, supra; Lake Shore, etc., Co. v. Johnson, supra; Winona, etc., Co. v. Rousseau, supra. [8] Nor is the instruction of that kind which may be added to or cured by other instructions given in the case. Lake Shore, etc., Co. v. Johnson, supra, and cases cited; Plate Co. v. Bucy, supra, 43 Ind. App. 504505, 87 N. E. 1051, and cases cited; Pittsburgh, etc., Co. v. Wright, supra. [9, 10] Appellee insists that the instruction, if erroneous, is shown to be harmless by the answers of the jury to interrogato [11] Lastly, it is insisted, in effect, that these findings, when supplemented by the evidence, clearly show that appellee was not harmed by the instruction, and that the presumption indulged in favor of the general verdict and the judgment thereon requires us to search the record to affirm, and that such search will conclusively show that appellee was not harmed. Appellant controverts appellee's contention that we should look to the evidence to ascertain whether harm resulted from an instruction which is erroneous, and relies on the case of Wooters v. Osborn, 77 Ind. 513, 515. This case lends support to appellant's contention, but we do not think that it goes to the extent claimed. Of course this court will not weigh evidence to ascertain whether an erroneous ruling has been harmful, and, as above indicated, the burden is on appellee to show that no harm resulted to appellant from the giving of the erroneous instruction. Yet, if we could say that appellee has shown by undisputed evidence in the record that appellant's injury was due solely and entirely to the negligence in giving the starting signal, and that there was no evidence of any kind showing any negligence on the part of appellee or its agents that in any way contributed to such injury, we think the rule which requires us to search the record to affirm would require us, in such case, to say that such instruction was harmless, and refuse to reverse on account of its having been given. dence we find, as before indicated, that there was affirmative evidence showing that when appellant had one foot upon the car step and her hand on the railing, ready to get upon the car, that it started very suddenly with a jerk, and that she was thereby thrown to the ground. This evidence was susceptible of the inference that it was not the starting of the car alone which caused appellant's fall therefrom, but that the suddenness of the starting, the jerk of the car when it started, may have been at least a contributory cause of such fall, and hence that appellee's agents, in respect to the manner of the starting of the car, at least, did not exercise the highest degree of diligence and care which the authorities before cited re quired of it. Winona, etc., Co. v. Rousseau, supra. The appellant was entitled to have the jury draw such inferences as they might draw from such evidence. The instruction in question ignored the existence of such evidence, and the possible inference that might have been drawn therefrom, and to this extent, at least, invaded the province of the jury and failed to include in the instruction all the essentials of that high degree of care and diligence on the part of the agents of appellee, which the law makes necessary in such cases before the appellee was entitled to be relieved from liability. In view of the conclusion reached, we deem it unnecessary to set out or discuss the second instruction objected to, further than to say that in its main features it has the approval of the Supreme Court in the cases of Richardson v. Coleman, 131 Ind. 210, 29 N. E. 909, 31 Am. St. Rep. 429; Keesier v. State, 154 Ind. 242-247, 56 N. E. 232; In re Darrow and Talbot, 175 Ind. 44, 58, 59, 92 N. E. 369. One of its statements may possibly be open to criticism, but when considered in its entirety, we do not think it contained any announcement that could be said to be prejudicial, or harmful, to appellant's cause, and hence its giving did not, in any event, constitute reversible error. Because of the error in giving instruction No. 1, the motion for new trial should have been sustained. The judgment is therefore reversed, with instructions to the trial court to grant a new trial, and for further proceedings consistent with this opinion. street on a line with the buildings then erected thereon, two more subject to a different restriction that all buildings should be set back from the street 10 feet, except in the case of circular front buildings, when the circular part of the front might be within the 10 feet, and the sixth lot subject to no restrictions whatever, although the grantee subsequently conveyed it subject to the same restrictions as the first three, the grantor made no plan showing that the lots were subject to restrictions, one lot the benefit of the restrictions to which and the deeds showed no intent to annex to the others were subject, no equitable easement in the other lots was created in favor of a lot forced' by him, since the deeds showed that no owner, and the restrictions could not be engeneral plan or scheme in regard to restrictions was contemplated or established, although a common advantage to all of the lots from the restrictions may have been anticipated. Dig. § 543; Dec. Dig. § 173.*] [Ed. Note.-For other cases, see Deeds, Cent. Exceptions from Land Court,. Court, Suffolk County. Proceeding to register title to land by Charles P. Webber and others, trustees, against James T. Landrigan, trustee. Decree ordered for petitioners, and respondent brings exceptions. Exceptions overruled. John A. Curtin, of Boston, for petitioners. Jas. R. Murphy and David H. Fulton, both of Boston, for respondent. MORTON, J. This is a petition brought in the land court by the petitioners as trustees under the will of John P. Webber, late of Brookline, to register and confirm their title to a certain lot of land situated at the corner of Shawmut avenue and Worcester street in Boston. The petitioners seek to register their title free so far as the respondent is concerned from certain restrictions which appear of record in the deeds of their predecessors in title and which the respondent as the owner of the adjacent lot seeks to enforce against them. The lot belonging to the petitioners and that belonging to the respondent constitute parts of a larger tract conveyed by the city of Boston to H. Hollis Hunnewell by deed dated June 26, 1855, and recorded July 16, 1855, and subdivided by him into six lots; and the question submitted to the land court was whether upon all the evidence as matter of law a general scheme was established by Hunnewell which created an equitable easement for the benefit of the respondent. The land court found that no such general scheme was contemplated or established, and ordered a decree for the petitioners free from restrictions. The respondent excepted to this finding and order. We think that the ruling of the land court was right. Three of the six lots into which the tract was subdivided by Hunnewell were conveyed by him subject to similar restrictions, namely, "that all buildings that may hereafter be erected on said premises shall (215 Mass. 212) HATHAWAY et al. v. STONE. (Supreme Judicial Court of Massachusetts. Suffolk. June 17, 1913.) CONTINUANCE OF SUIT BY SURVIVING PARTNER. Where a partner dies pending an action by himself and copartner, the action must be prosecuted by the surviving partner alone. [Ed. Note. For other cases, see Partnership, Cent. Dig. § 375; Dec. Dig. § 203.*] 2. CONTRACTS (§ 147*) - CONSTRUCTION — IN TENTION OF PARTIES. The court, in construing a provision in a contract, must consider the entire contract, and ascertain from it the intention of the parties, and give effect to that intent as far as possible. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. § 147.*] 3. CONTRACTS (§ 284*)-BUILDING CONTRACTS -CONSTRUCTION-CERTIFICATE OF ARCHITECT -CONCLUSIVENESS. be set back from Worcester street on a line with the building now erected thereon." Two were conveyed subject to different restrictions, namely, "that all buildings that shall be erected on the premises shall be set back from Worcester street at least ten feet, 1. PARTNERSHIP (§ 203*)-DEATH OF PARTNER excepting however that in case circular front buildings shall be placed thereon; this restriction shall not prevent the building the circular part of said front in front of said line of ten feet; provided however that the projection or swell made by said circle shall not be more than two feet six inches from the line last mentioned, viz., ten feet back from Worcester street." And the sixth and last lot was conveyed subject to no restrictions. It is true that this was conveyed to a Mr. Pratt who had been Hunnewell's confidential man of business for 50 years and who drew his deeds, and that when Pratt conveyed it a year later the deed contained a restriction similar to that in the first three deeds. But there is nothing to show that Hunnewell had A building contract, which stipulates for anything to do with the insertion of the re-payment in monthly installments as the work striction or that the conveyance by him to progresses, on certificates of the architect, and Pratt was not an absolute conveyance, and for the final payment after the completion of it is manifest, we think, from the original the work, and which provides that no certificate given or payment made, except the final deeds that no general plan or scheme in certificate or final payment, shall be conclusive regard to restrictions was contemplated or evidence of performance, that the work shall established by Hunnewell. No doubt it was be done under the direction of the architect, whose decision as to the construction of the expected that the restrictions would benefit specifications shall be final, that the contractor the premises which were subjected to them, shall provide facilities for the inspection of the and a common advantage to all of the lots work by the architect, and shall remove matemay thus have been anticipated. But that rials condemned by the architect, who shall certify to any negligence, or the refusal of the is far from establishing a general scheme or contractor to supply sufficient workmen or propplan. Noyes v. Cushing, 209 Mass. 123, 95 er materials, makes the architect a quasi arN. E. 83. The difference in the restrictions bitrator to determine questions arising as to the details of the work, as to the quality of the cannot be regarded, we think, as unimpor- materials furnished, and as to the character of tant, nor the conveyance of the sixth lot the work done and the condition thereof when without restrictions as an insignificant cir- completed, and the work must be done to the cumstance and so as bringing the case with- satisfaction of the architect, so as to gain his final approval. in Hano v. Bigelow, 155 Mass. 341, 29 N. E. 628, and Bacon v. Sandberg, 179 Mass. 396, 60 N. E. 936. In addition to the difference in the restrictions in the two groups of original conveyances in which restrictions were inserted and the conveyance of the sixth lot without restrictions, it is to be noted that there was no plan by Hunnewell showing that the lots were subject to restrictions, and there is no language in the deeds under which the petitioners and respondent respectively claim from which any intent can be gathered to annex the benefit of the restrictions to which the petitioners' lot is subject to the premises belonging to the respondent, both of which were deemed matters of some importance by Bigelow, C. J., in Badger v. Boardman, 16 Gray, 559. Besides the cases referred to above see Donahoe v. Turner, 204 Mass. 274, 90 N. E. 549; Dana v. Wentworth, 111 Mass. 291; Sharp v. Ropes, 110 Mass. 381; Jewell v. Lee, 14 Allen, 145, 92 Am. Dec. 744. Exceptions overruled. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1292-1302, 1308-1310, 1312-1316, 1326-1338, 1340-1342, 1344-1346, 1350, 1351; Dec. Dig. § 284.*] 4. CONTRACTS (§ 287*)-BUILDING CONTRACTS CONSTRUCTION- CERTIFICATE OF ARCHITECT-CONCLUSIVENESS. A final certificate by the architect, made 5. CONTRACTS (§ 290*)-CONSTRUCTION-VA- [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 1317; Dec. Dig. § 290.*] Exceptions from Superior Court, Suffolk County; Richard W. Irwin, Judge. Action by A. Judson Hathaway and another, partners, against Richard Stone, prose cuted on the death of A. Judson Hathaway the architect, and that his decision as to the by Hattie S. Hathaway, executrix, and the construction of the drawings and specificasurviving partner. There was a verdict for tions should be final. No alterations were to plaintiffs, and defendant brings exceptions. be made in the work except upon his writOverruled. ten order. The plaintiff was to provide at Francis J. Carney and Willard N. Pollard, all times facilities for the inspection of the both of Boston, for plaintiffs. Robert B. Stone, of Boston, for defendant. SHELDON, J. [1] After the death of one of the partners by whom the action was brought, and after the auditor's report had been filed, the executrix of the will of the deceased partner came in as a party plaintiff and the case since then has been prosecuted by her and the surviving partner together, instead of the latter alone, as should have been done. Walker v. Maxwell, 1 Mass. 104. As however no question with regard to this erroneous procedure has been raised by the exceptions, we merely call attention to the matter that it may not be thought to have been approved by the court. * work by the architect or his representatives, was to remove all materials condemned by him, to take down and remove all work condemned by him as unsound or improper, and make good all work damaged or destroyed thereby. The architect was to certify if there was any neglect or refusal on the part of the plaintiffs to supply a sufficient force of workmen or a sufficient supply of proper materials, and substantial rights were thereupon to be vested in the defendant and substantial burdens to be imposed on the plaintiff, going so far finally as to allow the defendant to terminate the employment of the plaintiff, to exclude him from the premises, and to complete the work at his, the plaintiff's, risk and even at his expense, if that expense, to be audited and certified to by the erwise would be payable to the plaintiff. The architect was in the first instance to determine whether any and what allowance should be made to the plaintiff if the prosecution or completion of the work should be delayed by the act or default of the owner or of the architect, or otherwise without fault of the plaintiff. By the written contract between these parties, the plaintiff agreed to make certain al-architect, should exceed the amount that othterations and additions to the defendant's house for a fixed price, which was to be paid in monthly installments as the work went on, "only upon certificates of the architect in amounts equal to eighty-five per cent. of the value of the work done"; the final payment to be made within 30 days after the completion of the work, and all payments to be due when certificates for the same were issued. It was stipulated by the tenth article of the contract "that no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper material." [2, 3] The first question is whether by the terms of the agreement it was left to the architect not only to determine and to state by what have been called "progress" or provisional certificates the value of the work done at the end of each month, but also at the completion of the work or within 30 days thereafter to decide whether the whole work had been properly done, and if so to give his final certificate for the payment of the full contract price. The question must be settled by looking at the whole contract. This is a very inartificial document and one not easy of interpretation; but we are to ascertain from it, as best we may, the real intent of the parties when they executed it, and as far as possible give effect to that intent. We find in the contract no provision other than what has been stated for the giving of such certificates by the architect. But some parts of the contract do throw light upon the question. It was stipulated that the Looking at these stipulations in connection with the provision as to the making of the payments upon certificates to be given by the architect, we are of opinion that the parties intended to make the architect a quasi arbitrator to determine whatever questions should arise as to the details of the work to be done, as to the quality of the materials to be furnished by the plaintiff, and as to the character of his work and the condition of the undertaking as it was to be completed by the plaintiff. There was no provision that the work should be made satisfactory to the defendant, the owner of the building, or that it should meet his approval when completed. The whole scope and purpose of the contract seem to have been that everything should be done to the satisfaction of the architect, and so as to gain his final approval. He was to stand between the plaintiff and the defendant. It was upon his provisional certificates that partial payments of the contract price, according to the value as fixed by him of what had been done, were to be made by the defendants. It was upon his final certificate that the residue of that price was to be paid. We cannot doubt that all these questions were intended by the parties to be left to the determination of the architect. Hebert v. Dewey, 191 Mass. 403, 77 N. E. 822. [4] It remains to be decided whether his final decision and the final certificate issued |
