* *

*

ry admissions and statements of plaintiff and the following language: "The plaintiff claims his witnesses, a ruling, that if he made such that while so employed he was injured by

a statements the jury would be warranted in be- the falling of a fence upon him. lieving that they were true, notwithstanding his the falling of a fence upon him. testimony to the contrary, should have been giv- The defendant denies that he was injured in en, since his statements were evidence of the that way and claims that he was injured by truthfulness of the thing stated, and the request falling off the ladder resting on the hopper, had reference, not to a part of the evidence presented by the defendant, but to substantially [while he was] engaged in the repair of the

: the whole of it.

hopper so called." And the jury were told [Ed. Note.-For other cases, see Trial, Cent. in substance that the burden was upon the Dig. $ 500; Dec. Dig. $ 206.*]

plaintiff to show that his injuries were causExceptions from Superior Court, Suffolk unless they believed the story of the plaintiff

ed by the fall of the fence upon him; that County; Hugo A. Dubuque, Judge.

in this respect the defendant was entitled to Action by Frank Jaglenaski against the Andersen Coal Mining Company. Verdict for issue, reaching to the vitals of the case.

a verdict. Here, then, was a sharply defined

If plaintiff, and defendant brings exceptions. the jury took the defendant's view, or were Exceptions sustained.

in doubt as to which way the evidence preDefendant's fourth request was for a rul- ponderated on the plaintiff's view, then the ing that, if the jury believed that plaintiff verdict was to be for the defendant. made the statements attributed to him to the

The only person on the wharf at the time effect that he fell off the hopper and thereby of the accident beside the plaintiff was one received his injury, the jury would be war- Brown. Called by the plaintiff, he testified ranted in believing that such statements that he and the plaintiff were repairing the were true, notwithstanding the plaintiff's tes- hopper; that the "plaintiff went to get some timony to the contrary during the trial.

pieces of board for that purpose, but did not W. W. Clarke, of Boston, and C. J. Mul- bring the board"; that the witness was doon, Jr., of Somerville, for plaintiff. M. o. working inside the hopper and heard a Garner, of Boston, for defendant.

scream, and went out and saw the plaintiff

under the fence; that after considerable difHAMMOND, J. The plaintiff was injured ficulty he released him, and that the plaintiff while at work for the defendant upon its

appeared badly hurt. wharf. Upon the evidence, the questions

The defendant, having no actual witness whether he was in the exercise of due care to the accident, was compelled on this part of

, whether the fence was in a dangerous con- its defense to rely almost entirely upon aldition and if so for how long a time the dan-leged admissions of the plaintiff as to the ger had existed, whether the defendant knew manner of the accident, and, so far as affector ought to have known of the danger, and ed the credibility of Brown, upon alleged whether the accident was attributable to the statements made by him inconsistent with negligence of the defendant, were all ques

his testimony. To prove these admissions tions for the jury. The first request was of the plaintiff and the inconsistent statetherefore rightly refused.

ments of Brown, the defendant called : First, [1, 2] There is, however, another excep-one Charest, who testified that shortly after tion taken by the defendant which requires the accident he, while in the employ of counconsideration in some detail. It appeared sel for the defense, went with Miss Hogan, a that the plaintiff was at work with one stenographer, and saw her "take a stenoBrown in the repair of a hopper. He testi- graphic statement from the plaintiff”; “that fied that boards were needed for the repairs; in his statement the plaintiff said he had that Brown was repairing the hopper and the received his injury by falling from a hopper plaintiff was bringing boards from a place which he was repairing; that he was enclose to the fence to the hopper, a distance deavoring to pull some nails out of boards in of about 75 feet; that the boards were "right the hopper, and his hammer slipped and he side of the fence"; that while he "was pull-fell to the wharf, sustaining the injuries ing up [the board] the fence fell” upon him complained of.” Second, Miss Hogan, who and he was hurt. He further testified that testified that while in the employment of the fence was 9 or 10 feet high, and that counsel for the defendant she went as stenog"the top of the hopper was about as high as rapher with Charest to take the statement a tall person could reach with a cane." of the plaintiff ; that in that statement the There was other evidence that the height of plaintiff said he was injured “by falling the hopper was 11 or more feet.

from the hopper," and that "he made no menOne of the grounds of the defense was that tion of an injury caused by a fence falling the plaintiff's story of the way he was hurt on him.” Both of these witnesses said that was not true; that the plaintiff was not in they had no difficulty in understanding the jured by the fall of the fence upon him, but English spoken by the plaintiff, and the latby his fall from a ladder leaning against the ter that she had no difficulty in taking his hopper. This ground of defense is stated at statement. Third, one Farnham, who testithe beginning of the charge to the jury in fied that in a conversation held by him with *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

*

he *

the plaintiff and Brown on the wharf a few the boards in place of the old boards to put minutes after the accident, both told him that on the hopper, or did it mean that he was the “plaintiff had fallen from the hopper and actually on the hopper himself and on the injured himself.” One Tighe (the person ladder ?” who, acting for the defendant, hired the It will be noted that no one of the witnesses plaintiff) testified for the defendant that the called to testify as to the admissions of the plaintiff told him that he "had fallen from plaintiff said that he used the words "while the hopper." Each of these two witnesses he was working upon the hopper.” On the said that he was well acquainted with the contrary, every one of them testified that he plaintiff and that he and the plaintiff could said he "fell from the hopper," and one of understand each other. The plaintiff was a them also describes the precise cause of the Pole, and had lived in Chelsea in this state fall, namely, the slipping of his hammer as for 15 years. The evidence as to his abil- he was attempting to pull out a nail. It is ity to understand or to speak our language to be presumed that the judge supposed he was somewhat conflicting, and the jury might was rightly quoting the testimony, but it is have found that he understood and spoke it clear that he was not, that he entirely failed only in an imperfect way.

to quote it properly, and that the charge In this state of the evidence the judge as based upon a misapplication of it was not to this part of the case charged the jury as only uninstructive, but entirely misleading, follows: "The plaintiff says * that and was highly prejudicial to the defendant.

was requested by the superin. And we do not think the statement to the tendent of the defendant company, Mr. Tighe, jury, in another part of the charge, that the to go and get some boards and to repair the jury are to act upon their understanding of hopper, and that at the time he was looking the testimony and not upon that of the judge for a board, and that while so doing he was cures in this case the difficulty. pulling a board from a fence that was down,

It may be that if the defendant had failed or something that was down,

that

to call the attention of the judge to this the fence fell on him. The defendant says inaccuracy in stating the testimony and the that the accident did not occur in this way; consequent prejudice to the defendant in his that the plaintiff said that the accident oc- treatment of it, the defendant would have curred while he was working on the hopper; been deprived of the right to raise the quesand right there you want to consider what tion here. But at the close of the charge, was meant when he said that he was working and before the jury had finally retired to on the hopper. Supposing a man is working consider the case, a colloquy not in the hearin the erection of a building and he is either ing of the jury took place between the judge at the carpenter's bench or attending a car- and the counsel for the defendant; and the penter who is working on the ground and latter called the attention of the judge to they are preparing boards for that building. this radical misstatement of the evidence Is he working on the building? That is one and specifically stated the difference between way to test it.

Is he working on that build- the language of the witnesses and that of ing; although not actually upon the building the court; and he excepted to this part of or a ladder resting on the building, or inside

the charge. of the building, if he is outside doing some

After further talk upon other alleged work towards the erection or the repair of

grounds of complaint on the part of the counin , talking about it, do so say that the man is sel for the defendant, the jury were further working on the building?" And then, after instructed but nothing was said as to this

matter. We are constrained to say that the some general observations bearing upon the

defendant has reasonable ground of comquestion of the degree of knowledge possess-plaint as to the charge upon this part of the ed by the plaintiff of our language and the chance of being misunderstood, he proceeds case, and that for this reason there should

be a new trial. as follows: “Now when he was there in the

[3] As the case is to go back it may be hospital did the parties who came there come there with an idea that the accident had al- well to say that the evidence as to the comready happened by his falling off the hop- pensation of Miss Hogan was inadmissible. per? Did they come there with the precon- It had no tendency to show whether or not ceived idea, or did they come there simply not she could or did rightly understand the knowing anything about it and trying to as

plaintiff. certain from him? If they came there with a

[4] And the fourth request could properly preconceived idea, information received from

have been given. It is true it may be said either Farnham or from Tighe that the ac- that it called upon the court to charge as to cident had happened in a certain way, did the effect of a particular fact or series of they put their questions to him in such form facts, a thing which many times should not as to elicit the fact that he was at the time be done. But the sole evidence (except posengaged in working on the hopper; and when sible inferences which could be drawn from he said, if he did say, that he was working on the nature of the injuries) in support of the the hopper, did it mean any more than that theory of the defendant was that as to the sions were to be rejected by the jury there al injuries. Verdict for plaintiff, and defendwas but little, if any, evidence in support of ant brings exceptions. Sustained. the defendant's theory. If the admissions

Plaintiff was a laborer, and had been in were accepted by the jury, then the plaintiff defendant's foundry for 212 years. In the had no case. In a word, so far as respected foundry were three brass furnaces, the tops this ground of defense, the verdict hinged of which were flush with the floor and the on the view the jury might take of the ad-bottoms about 32 inches below floor level. missions. It is also to be borne in mind The pots of molten brass were lifted out of that the request had another aspect. While the furnace red hot with tongs, and were any statement of the witness Brown incon-carried to the molds where the brass was sistent with his testimony could not be evi- poured. Plaintiff had assisted in lifting out dence of the truthfulness of the statement one pot, and as he was immediately thereand its only bearing would be on the degree after assisting in lifting out a second one his of credibility to be given to his testimony, clothes took fire from the heat radiating from and would not have been admissible at all the pots, and he was burned. if he had not been a witness, yet the statements of the plaintiff himself being in the of Boston, for plaintiff. M. 0. Garner, of

Jas. F. Creed and John J. Mansfield, both nature of admissions may be taken as evi

Boston, for defendant. dence of the truthfulness of the things stated; and that would have been so even if he SHIELDON, J. If we assume that Charles had not been a witness. The fourth request Paul was or could be found to be intrusted was true as a proposition of law; it had by the defendant with and exercising superreference, not to a part of the evidence pre- intendence and having that for his sole or sented by the defendant on this issue, but to principal duty, or at least to be a person substantially the whole of it. While the acting as superintendent with the authority failure to give it may not strictly have been and consent of the defendant in the absence legal error, yet its manifest effect would of the regular superintendent, within the have been to call sharply the attention of the meaning of R. L. c. 106, $ 71, cl. 2, now conjury to the body of the evidence upon this tained in St. 1909, c. 514, $ 127, cl. 2, we are issue, its probative effect and thus to simpli- yet of opinion that the plaintiff was not enfy the cases so far as dependent upon the titled to maintain his action, upon his conissue.

tention (which was the only ground submitExceptions sustained.

ted to the jury) that his injury was due to the negligence of Paul.

[1] His injury was due to the fact that (214 Mass. 429)

his clothes caught fire by reason of the heat SAKAS v. LUMSDEN & VAN STONE CO. radiating from a pot or crucible of molten (Supreme Judicial Court of Massachusetts. brass, which under the order of Paul he was Suffolk. May 21, 1913.)

assisting another man to lift and empty. 1. MASTER AND SERVANT (8213*)-INJURIES He had just before done the same thing TO SERVANT- ASSUMPTION OF RISK.

with another like crucible; and it could be Because of the intense heat radiating from found that the prior exposure of his garments crucibles when in use, it was customary that the same man should not carry two crucibles in to the great heat (some 2,000 degrees) radiatsuccession. When assisting in pouring molten ing therefrom rendered it more dangerous to brass therefrom, plaintiff carried a second cruci subject them again to the same ordeal, and ble, and his clothing, being overheated, caught that for this reason it was customary that the fire. Held, that plaintiff assumed the risk of the second exposure of his inflammable clothing same man should not lift and carry two such to the extreme heat.

pots or crucibles in succession. But the ef[Ed. Note.-For other cases, see Master and fects of exposure to excessive temperatures Servant, Cent. Dig. 88 559–564; Dec. Dig. 8 are within the common knowledge of man213.*]

kind. No grown man of ordinary intelli2. MASTER AND SERVANT (8 177*)-INJURIES TO SERVANT-NEGLIGENCE OF FOREMAN.

gence could be heard to say, for example, Where, when plaintiff was holding with that he was ignorant of the result of putting another a crucible used to convey molten brass a slice of beef upon a gridiron immediately for the purpose of knocking off clinkers from over an aperture in the top of a heated its bottom, his clothes began to smoke from the intense heat from the crucible, that the fore- range, or. of placing a combustible substance man, as soon as he saw it, told him to contin- in close proximity to any matter heated to ue to hold it up, did not constitute negligence, such a temperature as is here in question. where, if the crucible had been put down with And it is equally a matter of common knowlclinkers on the bottom, a dangerous explosion edge that the effect of additional exposures would have resulted.

[Ed. Note. For other cases, see Master and immediately succeeding each other will much Servant, Cent. Dig. $$ 307, 352, 353; Dec. Dig. enhance the result thereof in parching, burn§ 177.*]

ling such a crucible. But he allowed the jury corporation and was under its exclusive conto find that there was such an added, in- trol, the master was under obligations to use creased danger in lifting a second crucible due care as to employés; the rule being the as to constitute a separate and distinct dan- / same, regardless of the ownership of the

barge. ger, which the plaintiff could not reasonably

[Ed. Note. For other cases, see Master and foresee under the circumstances, but which Servant, Cent. Dig. $8 193-198; Dec. Dig. S one charged with the duty of superintendence 106.*] ought to have foreseen. But all the evidence was that it was no uncommon thing for the

Exceptions from Superior Court, Suffolk men to become burned in handling these cru-County; William B. Stevens, Judge. sibles; and we can see no ground for saying

Action by Joseph Tierney against the Merthat (to use arbitrary figures) a workman chants' Steam Lighter Company.

'

Verdict

Exmust be deemed to appreciate and assume for plaintiff, and defendant excepts. the risk of exposure to the enormous heat ceptions overruled. for five minutes, but that an exposure to the Daggett & Jefferson and Garland & Berensame heat for double that time involved a son, all of Boston, for plaintiff. M. 0. danger which was of a distinct character, Garner, of Boston, for defendant. which was not obvious and which he properly might require to have explained to him.

HAMMOND, J. At the time of the acciEach risk is of the same character; it is dent the barge was being used in the business no more necessary to give warning against of the defendant corporation and was under the one than against the other. The case its exclusive control. The defendant was comes within the same principles that were therefore under an obligation to use due care applied in Cunningham v. Blake Steam Pump to see that in using it there was no danger Works, 208 Mass. 68, 70, 94 N. E. 450 ; Bois-to a careful employé; and that is so whether vert v. Ward, 199 Mass. 594, 85 N. E. 849; the barge was owned or borrowed by the deand Whalen v. Rosnosky, 195 Mass. 545, 81 fendant. Spaulding v. Flynt Granite Co., 159 N. E. 282, 122 Am. St. Rep. 271. Indeed the Mass. 587, 34 N. E. 1134; Ladd v. N. Y., N. plaintiff did not testify, nor do we find any H. & H. R. R., 193 Mass. 359, 79 N. E. 742, other evidence tending to show, that he did

9 L. R. A. (N. S.) 874, 9 Ann. Cas. 988, and not appreciate the danger of a further exposure to heat from a second crucible as well

cases cited. as that of the first exposure.

The evidence warranted findings that the [2] The plaintiff testified that while he and rope which parted was defective and unsafe another were holding up the second crucible for the use for which it was intended; that to knock off clinkers from its bottom, his a proper inspection on the part of the de clothes began to smoke, and he said, “I am i fendant would have disclosed the defect; burning,” but that Paul answered, "Never that such inspection was not made by the demind, hold up.” He testified also that Paul, fendant; that the plaintiff, however, had the as soon as he saw the fire, told the plain- right to assume that it had been made and : tiff to let it down. This first mentioned order to act accordingly; that the defect was not cannot be said to have been negligently giv- obvious to the plaintiff, and that in using

McHugh, a witness for the plaintiff, the rope as he did he did not assume the testified, and it appears to have been un- risk; that he neither knew of nor had any disputed, that to put down the crucible with reason to suspect the defect, and that while clinkers on the bottom would have been more in the exercise of due care he was using the dangerous than to hold it up, from the risk rope, he was injured by reason of the negliof its turning over and causing an explosion ; gence of the defendant. No citations are that the clinkers must be knocked off before needed to show that such findings would enit could be set down.

title the plaintiff to a verdict. The case is We find no evidence of negligence for clearly distinguishable from the class of which the defendant was responsible; and cases of which Roughan v. Boston & Lockthe order must be:

port Block Co., 161 Mass. 24, 36 N. E. 461, Exceptions sustained.

cited by the defendant is a type. The court rightly refused to rule as requested by the

defendant. (214 Mass. 540)

The exception taken to a portion of the TIERNEY v. MERCHANTS’ STEAM LIGHT-charge to the jury is not pressed in the brief ER CO.

of the defendant, and in view of its nature (Supreme Judicial Court of Massachusetts.

we regard it as waived. Suffolk. May 23, 1913.)

The defendant complains of the amount MASTER AND SERVANT (§ 106*)-INJURIES TO of the verdict. But with that question this SERVANT-SAFE PLACE TO WORK.

Where, at the time of an accident, a court cannot deal. barge was being used in the business of a Exceptions overruled. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexos

en.

(214 Mass. 492)

that in the present case she had to show malGEROMINI V. BRUNELLE.

ice on his part. This she failed to do. It (Supreme Judicial Court of Massachusetts. follows that the exceptions must be overNorfolk. May 22, 1913.)

ruled. See Corey v. Eastman, 166 Mass. 279, HUSBAND AND WIFE ($325*)-ALIENATION OF | 287, 44 N. E. 217, 55 Am. St. Rep. 401; Plant AFFECTIONS-LIABILITY.

v. Woods, 176 Mass. 492, 500, 57 N. E. 1011, A person who gives a husband advice, with 51 L. R. Á. 339, 79 Am. St. Rep. 330; Multer an honest and friendly desire to assist him, even though it leads to his separation from his wife, v. Knibbs, 193 Mass. 556, 79 N. E. 762, 9 L. and may turn out not to have been the best R. A. (N. S.) 322, 9 Ann. Cas. 958. advice that could have been given, is not liable

Exceptions overruled. to the wife, in the absence of malice.

[Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 1119; Dec. Dig. § 325.*]

(214 Mass. 374) Exceptions from Superior Court, Norfolk County; John C. Crosby, Judge.

LEE v. BLODGET et al. Action by Elizabeth Geromini against (Supreme Judicial Court of Massachusetts. Louis Brunelle. Verdict for defendant, and

Suffolk. May 20, 1913.) plaintiff brings exceptions. Exceptions over- 1. PLEADING (8 392*)—GENERAL DENIAL-EFruled.

FECT. E. O. Howard, of Boston, for plaintiff. H. joint undertaking, and the answer of all the

Where plaintiff sued several, setting up a T. Richardson and G. P. Holbrook, both of defendants contained a general denial, proof of Boston, for defendant.

the promise as alleged is essential to recovery.

[Ed. Note.-For other cases, see Pleading, MORTON, J. The only exception in this Cent. Dig. $$ 1312-1319; Dec. Dig. $ 392.*] case is to the refusal of the court to instruct 2. EXECUTORS AND ADMINISTRATORS ($ 203*),

JOINT CONTRACTS-SURVIVORSHIP. the jury as requested by the plaintiff that

The executors of one who was a party to she need not prove malice on the part of a joint contract are not jointly liable with the the defendant in order to entitle her to re- survivors. cover. We do not understand the plaintiff

[Ed. Note. For other cases, see Executors to find any fault with the instructions that and Administrators, Cent. Dig. § 731; Dec.

Dig. § 203.*] were given if the instruction requested was 3. PARTIES ($ 75*)—MISJOINDER—MODE OF ATrightly refused.

TACK. We think that the instruction asked for The impropriety of joining in one cause of could not have been properly given. In Tas- action the executors of a deceased person, who

was a party to a joint contract, with the surker v. Stanley, 153 Mass. 148, 150, 26 N. E. vivors, may be taken advantage of by demurrer. 417, 10 L. R. A. 468, in an action for alien- [Ed. Note.-For other cases, see Parties, Cent. ating the affections of the plaintiff's wife Dig. $$ 115, 116, 167, Dec. Dig. $ 75;* Pleadand enticing her to leave him, it was held ing, Cent. Dig. $ 494.] that the defendants had a right to show that 4. PARTIES (875*)—MISJOINDER-DEFECTS

MODE OF ATTACK. their advice was honestly given with a view

The misjoinder of the executors of a deto the welfare of both parties, and that in ceased party to a joint contract with the surorder to render them liable it should appear vivors may be attacked by a request, made aftthat the advice was not given honestly or evidence, and consequently, upon such attack,

er opening and before the introdution of any was given from malevolent motives. We the court may direct a verdict for the executors. think that the same principles apply in an [Ed. Note. For other cases, see Parties, Cent. action by the wife for persuading and entic- Dig. $$ 115, 116, 167; Dec. Dig. § 75.*] ing her husband to leave her and take with 5. CONTRACTS (8 182*)-JOINT CONTRACTS him their minor children. It is true that

LIABILITY OF SURVIVORS.

Even though the executors of a deceased the husband is bound to support his wife and party to a joint contract may be liable, under that he is liable to a criminal complaint if | Rev. Laws, c. 141, § 8, in a separate action, he unreasonably refuses or neglects to do so. yet both at common law and under chapter 177, But we do not think that that fact can af. 6, providing, in an action against two or more But we do not think that that fact can af-defendants upon a contract, the plaintiff shall

§ fect his right to such advice or render a be entitled to judgment against those who, upthird party liable for advice which is given on trial, are found liable, though it is not found with an honest and friendly desire to assist that all of the defendants are jointly liable, the

survivors are bound to the full extent of the him even though it may lead to his separa-promise. tion from his wife and may turn out not to TEd. Note.-For other cases, see Contracts, have been the best advice that could have Cent. Dig. SS 780–787; Dec. Dig. § 182.*] been given. The liability of the defendant 6. PARTIES ($ 65*)—MISJOINDER EFFECT OF does not depend upon whether the separation

MISJOINDER-NECESSITY OF AMENDMENT. resulted wholly or in part from the advice against the survivors, liable on a joint contract,

Where an action was brought, not only which he gave, but quo animo the advice but against the executors of a deceased party. was given. There'must have been an inva- no amendment is necessary if, upon the plea of sion of the plaintiff's rights in some form by as to the executors, who were improperly joined.

misjoinder, plaintiff moved for a discontinuance the defendant in order to entitle her to main

[Ed. Note.-For other cases, see Parties, Cent. tain an action against him. In order to show Dig. 88 100-107; Dec. Dig. $ 65.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes