7. JUDGMENT ($ 238*)-JOINT PARTIES–DIS- 326, 75 N. E. 724; Walpole v. Quirk, 143 CONTINUANCE.

Mass. 72, 9 N. E. 9; Cowley v. Patch, 120 a joint contract were joined in an action against Mass. 137; Tuttle v. Cooper, 10 Pick. 281. the survivors, a verdict for the executors op- [5-7] But if under R. L. c. 141, § 8, the erated only as a discontinuance, and the suit executors in a separate action would be liable remained joint as to the survivors.

as if the contract of the testator had been [Ed. Note.-For other cases, see Judgment, joint and several, yet at common law as well Cent. Dig. $$ 415, 416; Dec. Dig. § 238.*]

as by R. L. C: 177, § 6, the living defendants 8. APPEAL AND ERROR (8 320*) TIME FOR and promisors, although neither is bound by PERFECTING APPEAL-REPORTS.

Under Rev. Laws, c. 173, § 105, providing himself, are bound jointly to the full extent that a justice of the Supreme Judicial Court or of the promise. New Haven & Northampton superior court, after verdict, may report the Co. v. Hayden, 119 Mass. 361; Colt V. case for determination by the full court, if he Learned, 133 Mass. 409; Foote v. Cotting, be of the opinion that a finding or order made by him ought to be determined by the full court, 195 Mass. 55, SO N. E. 000, 15 L. R. A. (X. and may stay further proceedings, the question s.) 693; Meyer v. Estes, 164 Mass. 457, 41 whether a case shall be reported rests in the N. E. 683, 32 L. R. A. 283. It was open to discretion of the judge, who need not accede to the request of the party, and whose action is the plaintiff as soon as the defense of misgoverned by what he deems to be reasonable joinder had been raised to have moved to and just; there being no time fixed, as in case discontinue, and no amendment to the declaof exceptions and appeal, within which the right ration would have been necessary. Taft v. must be exercised. Therefore a delay of more than two years in filing a report will not de- Church, 162 Mass. 533, 39 N. E. 283; s. C., prive the defeated party of review; it appearing 164 Mass. 504, 41 N. E. 671. The verdict that during all that time the successful parties for the executors, however, in so far as the made no request that the report be prepared or other defendants were concerned operated filed, and that they suffered no impairment of any legal right.

only as a discontinuance, and the suit re. [Ed. Note. For other cases, see Appeal and mained joint as to the survivors. PhiladelError, Cent. Dig. $$ 1790–1794, 2299; Dec. Dig. phia & Reading Coal & Iron Co. V. Butler, § 320.*]

181 Mass. 468, 63 N. E. 919; Hathaway v, Report from Superior Court, Suffolk Coun- Crocker, 7 Metc. 262, 268. ty; John F. Brown, Judge.

[8] The plaintiff having been entitled to a Action by Charles E. Lee against Walter trial on the merits, the judge erroneously H. Blodget and others. On report, after ver- ruled that the action could not be maindict for defendants. Judgment on the ver- tained.

Judgment on the ver- tained. It is urged that, even if reversible dict as to certain defendants, and the cause error appears, this court has no jurisdiction reversed and remanded as to others.

because of the delay of more than two years

which have elapsed between the trial and Arthur H. Russell, of Boston, for plaintiff. the filing of the report. A party aggrieved John S. Gould, of Worcester, for defendants may come to the full court on questions of Heslor. Romney Spring, of Boston, for de- law, either by appeal from errors of law apfendants Hamilton, Ely, and Dewey.

parent on the record, or by exceptions, or

in the discretion of the trial judge by reBRALEY, J. [1-4] The contract declared port. R. L. C. 173, $$ 96, 105, 106. If he on is the joint undertaking of the subscribers resorts to an appeal, or bill of exceptions, to pay the plaintiff for his services in organ. the time within which the right must be exizing the corporation, and under the answers, ercised is limited. But whether a case shall each of which contains a general denial, he be reported rests upon the discretionary powwas required to prove the promise as al- er of the judge, who need not accede to the leged. Bartlett v. Robbins, 5 Metc. 184; request of the defeated party, and whose acWood v. Farmer, 200 Mass. 209, 86 N. Ę. tion in taking the necessary steps where a 297; Boston Relief & Submarine Co. v. Bur- report is to be made is governed by what he nett, 1 Allen, 410; Amsinck v. Boylston Mut. deems to be reasonable and just under the Ins. Co., 129 Mass. 185, 188. And the cause circumstances. R. L. C. 173, 8 105; Newbury

§ of action having been severed by the death port Inst. for Savings v. Coffin, 189 Mass. of Stephen Salisbury, his executors, although 74, 75 N. E. 81; Smith v. Lincoln, 198 Mass. sued with them, were not jointly liable with 388, 84 N. E. 498; Strong v. Carver Cotton the survivors. Von Arnim v. American Tube Gin Co., 202 Mass. 209, 8S N. E. 582. The Works, 188 Mass. 515, 520, 74 N. E. 680, defendants understood by the judge's order, and cases cited. The misjoinder could have shown by an entry on the docket, that the been availed of by demurrer, but as this de- case had been continued for the purpose of fense also could have been raised under a being reported, and the mere lapse of time, request made after the plaintiff's opening, where the defendants do not appear even to and before any evidence had been introduced, have requested that the report be prepared the court properly directed a verdict for and filed, or to have suffered the loss or imthese defendants. Hey v. Prime, 197 Mass. pairment of any legal right, is insuflicient to 474, 475, 84 N. E. 141, 17 L. R. A. (N. S.) deprive the plaintiff of the benefit of the 570; Livermore v. County of Norfolk, 186 statute. By the terms of the report, judgMass. 133, 135, 71 N. E. 305; s. C., 189 Mass.ment on the verdict is to be entered for the

executors, while the verdict for the other de- , ful arrest of the plaintiff. There was a verdict fendants is set aside and a new trial granted. for the plaintiff; and the case is here on So ordered,

three exceptions taken by the defendants.

[1] 1. The court rightly instructed the jury

that unless they found that the plaintiff was (214 Mass. 480)

drunk at the time of the arrest, the defendELDREDGE v. MITCHELL et al.

ants had shown no justification and there (Supreme Judicial Court of Massachusetts.

was no defence to the action for assault. Plymouth. May 22, 1913.)

The arrest was made without a warrant. 1. ASSAULT AND BATTERY ($ 6*) ARREST WITHOUT WARRANT-ASSAULT BY OFFICERS.

The defendant Eugene Mitchell, who made An arrest by officers without a warrant for the complaint against Eldredge for drunkenthe offense of drunkenness is unjustifiable, if the ness and assault on an officer, testified that person arrested was not in fact drunk at the he made the arrest for drunkenness and nothtime, and the officers, committing an assault on him in connection with the arrest, are civilly ing else, and that the charge of assault was liable therefor.

made for acts alleged to have been done [Ed. Note.-For other cases, see Assault and while the officers were arresting him for Battery, Cent. Dig. § 26; Dec. Dig. § 6.*] drunkenness. Clearly, if Eldredge was not 2. ARREST (8 63*)—CRIMINAL CHARGES-Right in fact drunk at the time, the arrest without TO ARREST WITHOUT WARRANT.

a warrant and the assault in connection In the absence of any special statutory au- therewith were without justification in law thority, officers may not arrest without a warrant on mere information that assaults had been and made the officers liable. committed by the person arrested on the day be- [2, 3] 2. The instruction requested by the fore.

defendants was not applicable to the evi[Ed. Note.-For other cases, see Arrest, Cent. dence in the case, which shows that the arDig. $8 145–156; Dec. Dig. $ 63.*]

rest was made for the offence of drunkenness. 3. ARREST (8 63*)—CRIMINAL CHARGES-RIGHT Furthermore, in the absence of any special TO ARREST WITHOUT WARRANT.

Officers are not justified in arresting one statutory authority, they had no right to on the ground that they believe he is a danger-arrest without a warrant upon mere informaous person to leave at large.

tion that assaults had been committed by [Ed. Note. For other cases, see Arrest, Cent. Eldredge on the day. before. Com. v. RugDig. $8 145-156; Dec. Dig. $ 63.*] 4. EVIDENCE (8 382*)—PHOTOGRAPHS – VERI- gles, 6 Allen, 588; Com. v. Carey, 12 Cush. FICATION,

246; Scott v. Eldridge, 154 Mass. 25, 27 N. The verification of the accuracy of a photo- E. 677, 12 L. R. A. 379. And there was nothgraph offered in evidence rests with the trial ing in the evidence to call for an instruction court as an inquiry preliminary to its admis- as to the right of a constable to arrest withsion, and the question whether it will be of assistance to the jury must be determined by its out a warrant for the purpose of preventing sound discretion.

an imminent breach of the peace. It is need[Ed. Note.-For other cases, see Arrest, Cent. less to add that the court could not properly Dig. $8 1658, 1659; Dec. Dig. § 382.*]

instruct the jury, as the defendants requestExceptions from Superior Court, Plymouth ed, that the officers would be justified in arCounty; Lloyd E. White, Judge.

resting Eldredge on the ground that they Action by Charles A. Eldredge against believed that he was “a dangerous person to Eugene Mitchell, Jr., and another. There

leave at large.” was a verdict for plaintiff, and defendants

[4] 3. The verification of the accuracy of bring exceptions. Overruled.

the photograph rested with the court, as an

inquiry preliminary to its admission; and The plaintiff produced a photograph which the question whether it would be of practical purported to show his head and the dress- assistance to the jury must be determined ings put on the cuts or bruises by the doctor. by his sound discretion. McKarren v. BosThe plaintiff did not offer to produce as a ton & Northern St. Ry., 194 Mass. 179, 80 N. witness the man who took the photograph, E. 477, 10 Ann. Cas. 961. nor the one who printed it from the negative,

Exceptions overruled. but, on the mere statement of plaintiff that it was a true picture of his head as it appeared the day after the accident, offered it

(214 Mass. 549) in evidence.

FOURTH NAT. BANK OF BOSTON v.

MEAD. J. J. Feely and Roger Clapp, both of Boston, for plaintiff. Geo. L. Mayberry and (Supreme Judicial Court of Massachusetts. Lowell A. Mayberry, both of Boston, for de

Suffolk. May 23, 1913.) fendant Eugene Mitchell. Geo. F. James, of 1. EXECUTORS AND ADMINISTRATORS (8 417*)Boston, for defendant Wm. B. Mitchell.

POWERS OF EXECUTOR-INSOLVENT ESTATE.

Under Rev. Laws, c. 142, § 30, providing

that, if an estate has been represented to be in: DE COURCY, J. In this action for as-solvent, no action shall be maintained to charge sault and battery the defendants pleaded in the executor or administrator with debts of the justification that they were police officers deceased, except in case of a preference not af of the town of Hull, and that they used only exceed the debts allowed by the commissioners,

fected by the insolvency, or where the assets such force as was necessary in making a law-T and chapter 146, § 17, providing that, if an ex

.

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

ecutor or administrator be licensed to sell land makes full provision for the presentation fraudulently conveyed by the deceased, he may, and allowance of claims, but by section 30 within one year after such license, bring an ac- after the estate has been represented inceased is alone entitled to sue to set aside a solvent no action shall be maintained either preference or to recover lands fraudulently con- at law or in equity to charge an executor veyed, and therefore a creditor cannot by bil] in equity deprive her of that power, and remove or administrator with the payment of debts the administration of an insolvent estate into due from the deceased except in cases of equity; the remedy of the creditor, if the exec-preference not affected by the insolvency of utrix is incapable of exercising the trust im- the estate, or where the assets prove more posed upon her in favor of the creditors, because beneficiary of the fraudulent conveyances, be-than sufficient to pay debts allowed by the ing to apply to the probate court for her re- commissioners. Herthel v. McKim, 190 Mass. moval.

522, 524, 77 N. E. 695, 5 Ann. Cas. 911; Ryan [Ed. Note.-For other cases, see Executors v. Lyon, 212 Mass. 416, 420, 99 N. E. 169. and Administrators, Cent. Dig. 88 1646-1651; Dec. Dig. § 417.*]

The defendant as executrix, moreover, upon 2. COURTS (S 200*)— JURISDICTION OF COURts- insolvency of the estate represented crediPROBATE COURTS.

tors, and being bound to recover and hold Under Rev. Laws, cc. 142, 146, respective for their benefit all the assets, which inly giving to probate courts the administration cludes lands fraudulently conveyed, and of an insolvent estate and the power of sale over such estate, and St. 1907, c. 549, provid- hence liable to attachment and execution by ing for the sale of decedent's land for the pay- a creditor of the testator in his lifetime, ment of debts, the jurisdiction of a probate the plaintiff cannot under the guise of a bill court to administer such an estate cannot be divested by a bill in the superior court, for the to reach and apply usurp these powers, or establishment of plaintiff's indebtedness and the transfer to a court of equity the settlement setting aside of fraudulent conveyances by the of the insolvent estate over which the court decedent. [Ed. Note:- For other cases, see Courts, Cent. of probate is given by statute exclusive ju

. Dig, $$ 441, 442, 454, 469-471; Dec. Dig. grisdiction. R. L. C. 142, and c. 146, § 2; St. 200.*]

1907, c. 549; Cummings v. Cummings, 143 3. Courts (§ 24*)—JURISDICTION OF SUBJECT- Mass. 340, 9 N. E. 730; Putney v. Fletcher, MATTER-CONSENT.

148 Mass. 247, 248, 19 N. E. 370; Flynn v. The consent or waiver of a defendant, even Flynn, 183 Mass. 365, 366, 67 N. E. 314; Dunif sufficient to give jurisdiction over herself, cannot give the trial court jurisdiction over the bar v. Kelley, 189 Mass. 390, 392, 75 N. E. cause and subject-matter.

740; Tracy v. Strassel, 191 Mass. 187, 77 N. [Ed. Note.-For other cases, see Courts, Cent. E. 700; Coram v. Davis, 209 Mass. 229, 247, Dig. $$ 76–78; Dec. Dig. $ 24.*]

95 N. E. 298; Norton v. Lilley, 210 Mass. 214, 4. APPEAL AND ERROR ($ 782*)-NECESSITY OF 217, 96 N. E. 351; Horton v. Robinson, 212 JURISDICTION OF LOWER COURT.

Where the lower court has no jurisdiction Mass. 248, 98 N. E. 681. The properly apover the subject-matter of the action, an appeal pointed representative of the estate is the from its determination must be dismissed. only person to institute proceedings for the

[Ed. Note. For other cases, see Appeal and recovery of the property, which if recovered Error, Cent. Dig. 88 3123, 3124; Dec. Đig. S is held in trust for creditors. French v. 782.*]

Peters, 177 Mass. 568, 572, 59 N. E. 449; Appeal from Superior Court, Suffolk Coun- Sargent v. Wood, 196 Mass. 1, 81 N. E. 901; ty; Charles F. Jenney, Judge.

York v. Flaherty, 210 Mass. 35, 43, 96 N. E. Bill by the Fourth National Bank of Bos-53, and cases cited; Stockwell v. Shalit, 204 ton against Lura F. Mead, individually and Mass. 270, 90 N. E. 570; Tyndale v. Stanas executrix, etc. From the decree, plaintiff wood, 186 Mass. 59, 71 N. E. 83; R. L. C. appeals. Appeal dismissed.

146, § 17. If by reason of the conveyances Bates, Nay & Abbott and Wm. A. Knee- the executrix is rendered incapable of propland, all of Boston, for plaintiff. Richard erly executing the trust, the remedy of the B. Stanley, of Boston, for defendant.

creditors, and of the plaintiff, is to apply to

the court of probate for her removal if upon BRALEY, J. [1, 2] The bill is brought request she refuses to account for the propagainst the defendant as executrix of her erty, and asserts her title. Glines v. Weeks, husband's will to have the indebtedness due 137 Mass. 547; Putney v. Fletcher, 148 Mass. from him to the plaintiff at the time of his 247, 248, 19 N. E. 370; Dunbar v. Kelley, death on three promissory notes for money 189 Mass. 390, 391, 392, 75 N. E. 740; Norton lent established, and against her individual-v. Lilley, 210 Mass. 214, 217, 96 N. E. 351. ly to reach and apply three parcels of real But neither by demurrer nor answer have property alleged to have been deeded to her these defences been raised, and the case is with the intention of hindering, delaying here on the plaintiff's appeal after a trial and defrauding the testator's creditors. It on the merits at which it prevailed only as is averred, and the answer admits, that the to one parcel. estate has been represented insolvent under [3, 4] The consent or waiver of the defendR. L. c. 142, § 2, and commissioners have ant, if sufficient to give jurisdiction of herbeen appointed by the court of probate to self, could not create jurisdiction over the receive proof of claims. The statute not only cause and subject-matter, which has not been vested by law in the trial court. Elder v. ant, in order to show that the street was slipDwight Mfg. Co., 4 Gray, 201, 204; Santom pery, called a foreman of the street department v. Ballard, 133 Mass. 464; National Fertiliz- to show that the street had been recently oiled,

and the witness to refresh his memory freely er Co. v. Fall River Five Cents Savs. Bank, used a memorandum, made by him and filed for 196 Mass, 458, 462, 82 N. E. 671, 14 L. R. A. the information of his superiors, the memoran(N. S.) 561, 13 Ann. Cas. 510. The decree dum was inadmissible for any purpose, and was being void this court cannot decide the case

properly excluded. on appeal, and the order must be appeal dis-cent. Dig. § 892; Dec. Dig.' $ 257.*]

[Ed. Note.-For other cases, see Witnesses, missed. Jochumsen v. Suffolk Savs. Bank, 7. DAMAGES ($ 34*) — PERSONAL INJURIES

– 3 Allen, 87; Bearce V. Bowker, 115 Mass.

MISTREATMENT BY PHYSICIAN. 129; Peabody v. School Committee of Bos- Where a person injured by defendant's negton, 115 Mass. 383.

ligence used due care in applying for treatment Ordered accordingly.

to a reputable physician, defendant was liable for the injuries resulting, though they were ag. gravated by an accidental and improper, but

honest, treatment on the part of the physician. (215 Mass. 143)

[Ed. Note. For other cases, see Damages, GRAY V. BOSTON ELEVATED RY. CO. Cent. Dig. § 43; Dec. Dig. § 34.*] (Supreme Judicial Court of Massachusetts. 8. DAMAGES ($ 216*).- PERSONAL INJURIES — Middlesex. May 24, 1913.)

EARNING CAPACITY_INSTRUCTIONS. 1. DAMAGES ($ 172*) - PERSONAL INJURIES

In an action for injuries, an instruction VALUE OF TIME-EVIDENCE,

that the jury, in determining the amount of

plaintiff's damages, might consider the amount In an action for injuries to a passenger: of his average earnings, his professional reputahe was properly permitted to show the extent tion, and his special attainments in his profesof his studies and equipment in a department sion, was proper. of learning in which he had specialized, as bear

[Ed. Note. For other cases, see Damages, ing on the value of his lost time.

Cent. Dig. $8 548–555; Dec. Dig. & 216.*] [Ed. Note.-For other cases, see Damages, Cent. Dig. 88 490-492, 501; Dec. Dig. 172.*1 9. TRIAL ($ 260*) - INSTRUCTIONS - REQUEST

TO CHARGE. 2. DAMAGES ($ 172*) - PERSONAL INJURIES – LOSS OF SERVICES—EVIDENCE.

A request to charge, substantially covered Where plaintiff

, a university professor, had by instructions given, may be properly refused. made a special study of public service corpora

[Ed. Note.-For other cases, see Trial, Cent. tions, evidence that he had made a profitable Dig. $8 651-659; Dec. Dig. § 260.*] contract for the preparation of a series of ar- 10. TRIAL ($ 252*)— INSTRUCTIONS-WITNESSticles and was prevented from executing the ES. contract during a summer vacation, as he had Where, in an action for injuries, the witplanned, because he was injured while alighting nesses did not have equal opportunities for obfrom one of defendant's street cars, was admis- servation, a request to charge that where witsible to show the value of time lost by reason nesses are of equal candor, fairness, and intelliof his injury, though the contract price of gence, with equal opportunity, knowledge, and writing the articles was not recoverable specif- memory, and their testimony is in all respects ically.

of equal credibility, and there is a conflict as [Ed. Note. For other cases, see Damages, to facts, which cannot be reconciled, the number Cent. Dig. $8 490-492, 501; Dec. Dig. & 172.*1 of witnesses constitutes preponderance, and the 3. DAMAGES (8 40*) - PERSONAL INJURIES

verdict should be in harmony with the greater REMOTENESS.

number of witnesses, was properly refused, as Where an injury to a university professor inapplicable to the facts. resulted in his inability to comply with a con

(Ed. Note. For other cases, see Trial, Cent. tract to write certain articles during a summer | Dig. $$ 505, 596–612; Dec. Dig. § 252.*] vacation, which would have been profitable, his 11. TRIAL (8267*) - REQUEST TO CHARGE failure to write such articles was not too re- MODIFICATION. mote to be considered in determining the dam- In an action for injuries to a passenger ages, he was entitled to recover.

while alighting from a street car, an instruc[Ed. Note.-For other cases, see Damages, tion that plaintiff must show that a signal to Cent. Dig. 88 72-88; Dec. Dig. $ 40.*] start the car was given by the conductor, or 4. DAMAGES (8 64*)-PERSONAL INJURIES-IN- that the car was started by the motorman withSURANCE.

out signal, and that plaintiff could not recover evidence that he received money under a policy charge that plaintiff was required to show that In an action for injuries to a passenger, by showing that the car was started, and noth

ing more
was properly modified, so

as to of accident insurance was irrelevant.

a signal to start the car was given by the con[Ed. Note.-For other cases, see Damages, Cent. Dig. $ 113; Dec. Dig. $ 64.*]

ductor, or that it was started by the motor

man without signal, but that, if the jury be5. EVIDENCE (8 123*)—RES GESTÆ-DECLARA- lieved plaintiff's testimony, they would be war. TION OF THIRD PERSON-CONCLUSION. ranted in finding that a signal was given, or

In an action for injuries to a passenger that the car was started without signal. as he was alighting from a street car, evidence [Ed. Note.-For other cases, see Trial, Cent. that an unidentified person stated, as plain- Dig. $$ 668–672, 674; Dec. Dig. § 267.*] tiff was being picked up, “it was his [plain-12. NEW TRIAL (§ 42*)—GROUNDS–DISQUALtiff's] own fault," was a mere exclamation of a conclusion and inadmissible.

IFICATION OF JUROR. [Ed. Note.-For other cases, see Evidence,

Where defendant street railroad did not Cent. Dig. $$ 369-371; Dec. Dig. 123.*]

move at any time, as authorized by Rev. Laws,

c. 176, § 28, to examine a juror under oath, 6. WITNESSES ($ 257*)–REFRESHING MEMORY and the court found that the juror was impar-ADMISSIBILITY OF MEMORANDA.

tial, defendant was not entitled to a new trial Where, in an action for injuries to a pas- because the juror had a stale claim for damsenger in alighting from a street car, defend-lages against defendant, of which it had a rec*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

ord in its office, but of which defendant's attor- | January prior to his injury, which occurred ney had no knowledge at the time of the trial. in June, he entered into a profitable contract

[Ed. Note. For other cases, see New Trial, for the preparation of a series of articles Cent. Dig. 88 74–79; Dec. Dig. § 42.*]

on “Economics of Advertising," and that he Exceptions from Superior Court, Middle- was prevented from executing this contract sex County; Patrick M. Keating, Judge. during the summer vacation as he had plan

Action by John H. Gray against the Bos- ned, because of the injury. The contract and ton Elevated Railway Company. Plaintiff the evidence respecting it were competent. was awarded $1,690 damages, and defend- The plaintiff was entitled to recover as damant brings exceptions, and moves for a new ages compensation not only for the pain and trial. Exceptions overruled, and motion de suffering endured, but also for the loss of nied.

time of the valuable use of which he was Defendant's fourteenth request to charge deprived. The contract price for writing was as follows:

the articles was not recoverable specifically. “The plaintiff, having alleged that the in- It was admissible as bearing upon the genjury was the fault of the defendant, must eral damages sustained by him. Sibley v. prove it. If he does not, he cannot recover. Nason, 196 Mass. 125, 131, 81 N. E. 887, 12 The plaintiff must show that a signal to L. R. A. (N. S.) 1173, 124 Ain. St. Rep 520, start the car was given by the conductor, or 12 Ann. Cas. 938. Failure to write the artithat the car was started by the motorman cles was not too remote. It might have without signal. This must be shown by the been found as to the plaintiff to have been evidence. The plaintiff cannot recover by a direct and immediate result of the inshowing that the car started and nothing jury. Ballou v. Farnum, 11 Allen, 73; Hallomore. Unless evidence is given of negligent ran v. N. Y., N. H. & H. R. R. Co., 211 Mass. starting, the jury must find for defendant.” 132, 97 N. E. 631; Randall v. Peerless Motor

The court modified and gave the instruc- Car Co., 212 Mass. 352, and cases cited at tion as follows:

381, 99 N. E. 221. "The plaintiff must show that a signal to [4] 3. Evidence to show that the plaintiff start the car was given by the conductor, or received money under a policy of accident that the car was started by the motorman insurance properly was excluded. The relawithout signal; but if you believe the testi- tions between an insurance company and the mony introduced by plaintiff you will be plaintiff as its insured had no bearing upon warranted in finding either that a signal to the extent of his injuries, nor upon the destart was given by the conductor or that the fendant's liability. Clark v. Wilson, 103 motorman started the car without receiving Mass. 219, 4 Am. Rep. 532; International a signal.”

Trust Co. v. Boardman, 149 Mass. 158, 21 N. Frank G. Cook and G. Harvey Hull, both E. 239. of Boston, for plaintiff. Wilmot R. Evans,

[5] 4. There was evidence that the plainJr., of Boston, for defendant.

tiff was thrown or fell from the car to the

street. The defendant offered to show that, RUGG, C. J. This is an action of tort in while the plaintiff was being picked up, some which the plaintiff seeks to recover damages one who was not a witness to the accident for injuries received by him while a passen- would testify that she heard some noise and ger of the defendant. The question of lia- somebody said, "It was his own fault.” This bility hinges upon the point whether the evidence was excluded rightly. It was the plaintiff, having given the conductor the expression of a conclusion or of an opinion, proper signal, attemped to alight from the and not the exclamation of an observation. car before it came to a stop, or whether, It was not a statement accompanying an after the car had stopped in response to his act, nor was it a part of the controversy which signal, it started again before he had a was under investigation. The case is plainly chance to reach a place of safety on the distinguishable from Hartnett v. McMahan, ground.

168 Mass. 3, 46 N. E. 392, on which the de[1] 1. The plaintiff was rightly permitted fendant relies. to show the extent of his studies and his [6] 5. As tending to show that the street special equipment in the department of learn- was slippery, the defendant called a foreman ing in which he specialized. His skill and of the street department to show that the experience had some bearing upon the value street where the accident occurred recently of his time.

had been oiled. The witness testified to the [2, 3] 2. There was evidence tending to fact and date of oiling after refreshing his show that the plaintiff was a professor of recollection from a record which was filed economics in the University of Minnesota, every morning after the oiling. This record that he had made a special study of public was then offered in evidence and excluded. service corporations and had acquired a con- | In this there was no error. It does not apsiderable reputation in that branch of politi- pear that the writing had any force beyond cal science. Against the exception of the de- that of a memorandum made by the witness fendant, he was allowed to show that in himself for the information of his superiors.