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So far as the direct testimony goes, the yardmaster told him that he would "line up" a track for him without telling him what track he would "line up" intending to find out what tracks were clear and then "line up" one of them for the deceased.

switch is set for 10," to which the deceased | If the engineer had testified that what the answered, “It is no matter; we will go in on deceased said to him was that the yardmas10 and come out on 8." The deceased stop- ter had told him to go in on track 8 and ped his train of 15 cars so that the middle come out on track 10, the case at bar would of it was about opposite the yardmaster's have come within the decision in Nagle v. office. It was his duty then to go to the Boston & Northern R. R. But in the case at yardmaster and deliver to him the waybills bar the engineer did not testify that the defor the 15 cars which were to be distributed ceased told him that the yardmaster directed from the Readville yard. On the train stop-him (the deceased) to go in on track 8 and ping opposite his office, the yardmaster went come out on track 10. Of course the jury to the rear of this train of 15 cars expecting could disbelieve the testimony of the yardto see the conductor there and receive from master, although he was put on the witness him these way bills. On arriving there he stand by the plaintiff, if there was any evidid not find the conductor. Thereupon he dence to contradict him. But there was none. returned to his office. When the 15 cars had The fact that the deceased said that he was been brought to a standstill, the conductor going to take a certain course after he had got down from the engine and cut them off. the conversation with the yardmaster is not He then boarded the engine again and rode evidence that the yardmaster told him to on it to the other end of track 10. When take that course of action. the engine reached this point he again got down and went to No. 8 switch and set that switch so that the engine could come back on track 8. While he was doing this, the engine went on to the "water plug" which was further on towards the tower 234 and he waited for the engine to come back. When 2. The plaintiff's second contention is that the engine had taken water it came back to the jury were warranted in finding that the No. 8 switch and the deceased then board-yardmaster was negligent because he returned the engine. The engineer said to him, ed to his office to attend to his duties when "We have no light on the tender." By the he failed to find the conductor at the rear rules of the road no engine can back down end of the 15 cars. His contention is that without a light on the tender. Thereupon when he found that the conductor was not the conductor boarded the rear end of the at the end of the 15 cars he ought to have tender and stood there with his conductor's gone out into the yard, found him and told lantern while the engine backed down on him what track to come back on. But the track 8 until they came into collision with jury were not warranted in making that the cars upon that track which were some finding. The yardmaster's duty was at his 250 feet in from the switch. When the en- office. He was not only the yardmaster of gine came into collision with these cars, the this yard but of five others. He did not know front ones (which were flat cars) rose up over what call would come to him next. It was the tender and struck the deceased. He was his duty to be at his office or in that immeimmediately carried to the Readville station, diate neighborhood so as to respond to any but died before he arrived there. call as to the conduct of the yards under his 1. The first contention made by the plain-control. More than that he had no reason tiff is founded upon the fact that the deceas- to suppose that the deceased would undered told the engineer when they were on the engine after leaving tower 180 that they were to go in on track 8 and come out on track 10, and that when the engineer, seeing that the switch had been set for the train to go in on track 10 told the deceased that, he said, "It is no matter; we will go in on 10 and come out on 8." From the fact that the deceased made these statements, in the course of the conversation which the deceased had with the yardmaster over the telephone while the deceased was in tower 180 to the engineer, the plaintiff contends that the jury were warranted in finding that the yardmaster had told the deceased to go in on track 8 and come out on track 10. In support of this contention the plaintiff has relied upon the case of Nagle v. Boston & Northern R. R., 188 Mass. 38, 73 N. E. 1019. But that decision does not support this contention. In Nagle v. Boston & Northern R. R., what the deceased said was that the car starter had

take to use any track in the yard without getting permission from him to do so. Under the rules of the company the deceased had no right to use a track in the yard with. out permission from the yardmaster. And lastly, it was the duty of the conductor to bring the waybills (which showed where the 15 cars to be left in the yard were to be sent to) to the yardmaster, and it was the duty of the yardmaster to remain at his of fice to receive them. The difficulty with the plaintiff's argument is that in this instance. and throughout his whole argument, he asks the court to judge of the character of the action of the defendant's employés in the light of what transpired afterwards, and not in the light of the conditions which confronted the employés at the time they took the action which the plaintiff complains of. It goes as a matter of course that if the yardmaster had known what the deceased was going to do he ought to have taken means to

to suppose that the deceased would do what | sponsible with him for the safety and proper he did in fact do. It was his duty (as we handling of the train, and for such use of sighave said before) to remain at his office to nals and other precautions as the case may require." answer any calls which might come to him for the conduct of this and the other yards. There is nothing in the cases cited by the

plaintiff in this connection. Grant v. U. P. Ry. (C. C.) 45 Fed. 673, 680; Evans v. Detroit G. H. & M. Ry., 181 Mich. 413, 148 N. W. 490; Texas & N. C. Ry. v. Tatman, 10 Tex. Civ. App. 435, 31 S. W. 333, which helps

him.

3. The answer to the next contention made by the plaintiff has been already given. That `contention is that when the yardmaster on going to the rear end of the 15 cars did not find the deceased, the jury were warranted in finding that he ought to have telephoned to tower 234 and told the tower man to tell the deceased through the megaphone not to come back on track 8. The conclusive answer, as we have already intimated, is that the yardmaster had no reason to suppose that the deceased would undertake to come back on track 8. An additional answer (if one were necessary) was given by the yardmaster in his testimony, namely, that it is bad railroading to send orders through a third person, and not only that, but through a third person who has to speak through a megaphone to deliver the order to be transmitted by him.

4. The next contention made by the plaintiff is that the yardmaster ought to have warned the deceased that there were cars on track 8 when he first spoke to him over the telephone while the deceased was in tower 180. But that would have been bad railroading, as the master testified. It was not proper for him to tell him to use a particular track until he found by actual inspection that the track was clear. That was the course pursued by the yardmaster. He gave permission to the deceased to come into the yard and told him that he would "line up" a track for him to use. Thereupon he left his office. He examined the tracks which were lying in front of it. He found that 10 and 6 were clear and 8 was blocked. Thereupon he set the switch for 10 and signaled the deceased to come in on 10. Under the course of action properly adopted by the yardmaster, it was the duty of the deceased to come to him to ascertain what track he was to use in going out.

5. The next contention of the plaintiff is that the engineer was equally culpable with the deceased under the rules. The plaintiff's contention here is that the rules make the engineer equally responsible with the conductor for the safety and proper handling of the train. This contention is based upon rule 544 which refers to engineers. That rule provides:

"Make the safety of the train of the first importance in the discharge of their duties. Should there be any doubt as to the right of road, or safety of proceeding, from any cause, consult with the conductor and be equally re

That rule must be read in connection with

rules 500 and 615. So far as material rules

500 and 615 are as follows:

"Rule 500. *** ‘Engine Men. On the road, obey orders of the conductor as to starting, stopping, cars; as to general management of the train, unless such orders endanger the safety of the train or would require a violation of the rules or cause injury to persons or to property.'"

"Rule 615. 'Conductors. Be responsible for all switching movements." "

6. The plaintiff's next contention is that the engineer was negligent because while he was backing down on track 8 he testified he was leaning out of his cab and looking at that track and he ought to have seen the cars. The engineer testified that he was watching in that direction, and it was his duty as much as the conductor's to see that his engine got out safely. When asked this question, "And although you were looking in that direction, and had nothing else to do but look and run your engine, you did not make that observation to see whether the track was clear or not?" he answered: "I was looking to see if it was clear, certainly. I was watching the conductor." He was then asked this question: "And if a man looked properly in the direction in which you were looking he would have seen the obstructions if they were there?" to which he answered: "Why yes; a man on the rear end of the tender had." This answer taken in connection with the rules of the railroad disposes of this contention. It was the duty of the engineer unless he knew that the action of the conductor brought about a condition of danger, to follow the conductor's orders. This engineer knew that he had been ordered by the conductor to back down on track 8. He knew that his conductor was standing on the rear tender. Under these circumstances there was no duty upon him to make certain that track 8 was clear and the jury were not warranted in finding that he was negligent because he did not see the cars upon track 8.

7. The next contention of the plaintiff is that the head brakeman was negligent. The head brakeman testified that after he had set the brakes on 4 or 5 of the 15 cars which were left on track 10, he climbed through the cars on track 8 and sat down on track 6 expecting the engine to come back on that track. If the head brakeman had known that the deceased was going to undertake to come back on track 8, it may be assumed that it would have been his duty to have done what he could to prevent the accident. But he had no reason to suppose that the deceased would undertake to do that. Under these circumstances he had no duty to perform to prevent the accident, and the jury were not warranted in finding that he was negligent in sitting down on track 6 and waiting for the engine to come back.

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8. The last contention of the plaintiff is [He neglected his duty in not reporting to the that the fireman was negligent. This con- yardmaster with his waybills when he had tention is based upon the fact that track 8 brought his 15 cars to a stop on track 10 in was on the fireman's side of the cab and the front of the yardmaster's office; in place of fireman ought to have seen that there were doing that he rode down on the engine to the cars on track 8 when they went through switch on the end of track 8. He neglected on track 10, and it was negligent for him not his duty in the second place in undertaking to have seen them and to have told the en- to use track 8 without permission from the gineer not to go back on track 8. Here again yardmaster; in the third place, if he was it was no part of the duty of the fireman to undertaking to use track 8 without permisexamine the tracks to warn the deceased as sion from the yardmaster at his own risk, to which track he ought to take on coming at least he should have examined the track back from track 10. The deceased was the he intended to use without permission to conductor and was in charge of the train make sure it was clear; and in the fourth subject to the orders of the yardmaster. The place, as the engine was backing down on jury were not warranted in finding that the track 8 he was standing at the rear end of fireman was negligent because he did not un- the tender to show a light for the tender, and dertake to superintend the proper execution he stood there until he was killed by coming by the conductor and the yardmaster of their in collision with the cars on track 8. It is respective duties. a fact that he had left his 30 cars on the east 9. The plaintiff has relied upon the fact bound passenger track of the Providence dithat the yardmaster made a slip in his direct vision with a New York fast express only 30 testimony because there is an unfinished sen- minutes behind him. It is also a fact that tence in his testimony on cross-examination he had induced the officer at Midway to make and because on the evidence the jury could up the train and send him off at 3 o'clock, find that the deceased was an experienced when the regular leaving time of the train and careful conductor. In describing on his was 40 minutes past 4. From these two facts direct testimony what he did after he had it seems to be likely that the deceased was in the conversation with the deceased while thea hurry. Whether his hurry explains his deceased was in tower 180, the yardmaster neglect of duty and the accident is a matter said, "He climbed through the cars on 8 and of conjecture. On the evidence the only perdid the same thing to 6 and found 6, 8 and son who was negligent was the deceased and 10 were clear." The statement that track 8 the judge was right in directing a verdict was clear, following within 9 words the statement that "he climbed through the cars on 8" was so plainly a slip that no inference against the testimony of the witness was justified. The unfinished sentence on cross-examination was this: Counsel for the defend-try must be: ant asked the witness, "That (referring to setting the switch for track 10) would tell the conductor who was approaching that everything was clear, would it not?" To this the yardmaster answered, "The conductor could tell by looking at the switches. But as I told him-I don't know as I told him, but

for the defendant. The case comes within

Great Northern Railway Co. v. Wiles, Adm'r, 240 U. S. 444, 36 Sup. Ct. 406, 60 L. Ed. 732. There is nothing in the cases cited by the plaintiff which requires special notice.

Judgment on the verdict.

En

(224 Mass. 424) RIVERBANK IMPROVEMENT CO. v. CHAPMAN et al. SAME v. CHADWICK et al.

folk. June 21, 1916.)

APPEAL AND ERROR 66-LAND COURT-RE

I made a hand signal-the engineer knew ev-(Supreme Judicial Court of Massachusetts. Suf-
erything was all right." From this the
plaintiff argues that the jury were warrant-
ed in finding that the yardmaster had told
the conductor that everything was clear, in-
cluding in everything track 8. In our opin-
ion the inference is not warranted.

The fact that the deceased was an experienced and careful conductor taken in connection with the fact that on leaving the tower he said that he was going in on track 8 and coming out on track 10, would not warrant the inference that the yardmaster told him to do so.

VIEW.

Under Rev. Laws, c. 128, § 1, as amended by St. 1904, c. 448, § 1, and St. 1910, c. 560, $ 3, establishing the land court, and St. 1904, c. 448, § 8 (Rev. Laws, c. 128, § 13), as amended tions of law arising in the land court on any deby St. 1910, c. 560, § 1, providing that quescision may be taken by a party directly to the Supreme Judicial Court for revision in the same manner in which the questions are taken to that court from the superior court, and the land court, after entering decision dependent upon questions of law, may report such decision for the determination of the Supreme Judicial 10. Why the deceased, although an experi- free from restrictions, the land court did not Court, on a petition for the registration of land. enced and careful conductor, neglected his have power to report questions of law involving duty at the Readville transfer yard four the right of several persons to be heard as partimes on the night in question is a matter of ties, the extent of territory subject to restrictions, the construction of agreements and deeds, conjecture. That he did neglect his duty on the right to amend under, and the constitutionthat night in four particulars, is the fact.ality of, St. 1915, c. 112, before proceeding to

a hearing on the merits, the finding of which circumstances. The land court is a statutomight render all of these questions of law, im- ry court, not of general but of strictly limmaterial to the final decision of cases, since, ited jurisdiction. R. L. c. 128, § 1, as amendwhile the power to report to the full court ques

tions of law arising at any state of the case ed by St. 1904, c. 448, § 1, and St. 1910, c. has long been exercised by justices of the Su-560, § 3. While the power to report to the preme Judicial Court, that power exists in oth- full court questions of law arising at any er courts only to the extent conferred by the ex- stage of a case has long been exercised by

press terms of the statute.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 329-331, 335-343; Dec. Dig. 66.]

Report from Land Court, Suffolk County. Actions by the Riverbank Improvement Company against Edwin Chapman and others and against Sarah A. Chadwick and othOn report from the land court on questions of law. Report dismissed.

Tyler, Corneau & Eames, Robt. A. Pritchard, and Franklin King, all of Boston, for petitioner. L. M. Friedman and Swift, Friedman & Atherton, all of Boston, for respond

ent Congregation Adath Israel. Gaston, Snow & Saltonstall, of Boston (F. W. Bacon, of Boston, of counsel), for respondent Mary E. Holden and others. John D. Graham, of Boston, for respondent Eugene B. Hagar and others. Hurlburt, Jones & Hall and Philip N. Jones, all of Boston, for respondent Fannie E. Hurlburt. Adams & Blinn and Amos L. Taylor, all of Boston, for respondents Landensack trustees and Chadwick trustees.

justices of this court (which has been recognized by statute), that power exists in other courts only to the extent conferred by the express terms of the statute. Terry v. Brightman, 129 Mass. 535, 537; Hetherington & Sons v. William Firth Co., 212 Mass. 257, 98 N. E. 797; Newburyport Inst. for Savs. v. Coffin, 189 Mass. 74, 75 N. E. 81. Authority is conferred upon the land court by St. 1904, c. 448, § 8 (R. L. c. 128, § 13), as amended by St. 1910, c. 560, § 1, in these words:

"Questions of law arising * * * on any decision or decree may be taken by any party for revision in the same manner in which ques** directly to the Supreme Judicial Court

tions

* are taken to that court from the superior court. The land court, after any decision or decree dependent upon questions of law, may report such decision or decree, with so standing such questions of law, for the determuch of the case as is necessary for undermination of the Supreme Judicial Court."

These statutory words are the same as those in St. 1898, c. 562, § 14, and St. 1899, c. 131, § 2. It was said, respecting the extent of the power of the land court to report under those acts, by Chief Justice Holmes, in Welsh, Petr., 175 Mass. 68, 70, 55 N. E. 1043:

"It seems to us enough if the case is ripe for judgment or decree and the report shows that a decree would be entered were it not for the the doubt upon that question is resolved. Unquestion of law, and provides for a decree when der such circumstances the actual entry of the decree before sending the case up is a pure form. ed sufficient is the least that will do, and that * We agree that what we have pronounca question cannot be reported when it does not appear that an order or decree will follow the decision as a consequence.'

*

RUGG, C. J. One of these cases is a petition for the registration of the title to certain land in Boston, free from restrictions imposed in an agreement and deeds which appear of record to encumber the title, on the ground that such restrictions are not now valid and enforceable by reason of changes in the neighborhood. The other case, for the registration of other land subject of record to the same or similar restrictions, is a petition founded on the jurisdiction sought to be conferred upon the land court by St. 1915, c. 112. Numerous It is manifest that under the test thus esquestions of law involving the right of sev- tablished the present cases are far from the eral persons to be heard as parties, the ex- stage where they are ready for a report. If tent of territory subject to the restrictions, every ruling and decision made by the land the construction of divers agreements and court should be held to have been right, no ordeeds, the right to amend the first petition der or decree would follow as a consequence, into one under St. 1915, c. 112, and the con- but only a hearing on the merits, the finding stitutionality of the latter statute, have been on which might render all these questions of heard and decided by the land court. But law wholly immaterial to the final decision of there has been no hearing on the merits. So the cases. Weil v. Boston Elev. Ry., 216 far as any of these questions go to the mer- Mass. 545, 104 N. E. 343. The statute does its of the cases, they have been determined not confer upon the land court the same powin favor of the petitioners, so that according er to report that has been granted to the suto the rulings of the land court there must perior court by R. L. c. 159, §§ 27 and 29, and be further hearings on evidence involving by chapter 173, § 105, as amended by St. 1910' perhaps further important rulings upon ques- c. 555, § 5. The circumstance that by the lattions of law, before that court will be ready ter act the power of the superior court to reto render a final decision or to enter a final port to the full court was enlarged, while by decree. The judge of the land court has at- St. 1910, c. 560, approved three days later, tempted to report for the determination of that of the land court was re-enacted in its this court these numerous questions of law old words without enlargement, is strong before proceeding to a hearing on the merits. proof that there was intended by the LegisA preliminary inquiry is whether the land lature no change from the powers held to court has power to make report under these have been possessed by the land court by

Walsh, Petr., ubi supra. Welch v. Boston, 211 Mass. 178, 185, 97 N. E. 893.

In this connection the fact that when the Walsh Case was decided there was a general right of appeal from the land court to the superior court, which court might have reported such questions of law as here are raised to the full court, a general right of appeal which no longer exists, is irrelevant. It remains true that the power of the land court to report is the same and has not been enlarged.

Nor is it of consequence that the jurisdiction of the land court is assailed in one case and the constitutionality of St. 1915, c. 112, is attacked in the other. The land court, having decided both those questions in such way that the cases are not ripe for judgment, has no power to report until they are ready for final disposition. See Weil v. Boston Elev. Ry., 216 Mass. 545, 549, 550, 104 N. E. 343.

Arthur Berenson and Bernard Berenson, both of Boston, for appellant. Lee M. Friedman, Mark M. Horblit, Jacob Wasserman, and Horblit & Wasserman, all of Boston, for appellees.

DE COURCY, J. The plaintiffs, on April 4, 1914, purchased from the defendant, Louis B. Mayer (herein called the defendant), all the shares of capital stock in the Orpheum Theater Company, and paid therefor $2,750 in cash and $4,000 in promissory notes secured by the stock as collateral, and maturing apparently on November 5, 1914, January 5, 1915, and April 5, 1915. The bill of complaint was filed July 1, 1914. It alleged that the plaintiffs had been induced to purchase the shares by means of certain false and fraudulent representations of the defendant; and prayed, among other things, for a rescission of the sale, repayment of the purchase price, cancellation of the notes, assessment of damages, and a temporary injunction to restrain the negotiation of the promissory notes and stock certificates. The trial judge (April 28, 1915) found that the defendant did fraudulently misrepresent what the income of the business was during some months prior to the sale, and that this constituted an inducement to the plaintiffs to purchase. As they had carried on the business pending the litigation, and had made the enterprise a successful one, FRAUD the plaintiffs, at the hearing, disclaimed a desire to have the transaction rescinded; and the judge found for them in damages.

The inevitable conclusion is that the land court has no power to report questions of law such as are disclosed on this record, which relate to purely interlocutory matters. Report dismissed.

(224 Mass. 494)

ROSEN et al. v. MAYER et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1916.)

1. EQUITY 12-JURISDICTION SALES-RIGHTS OF BUYER.

Where the purchaser is induced by fraudulent representations to give his notes in part payment of the purchase price, he has the right to equitable relief to prevent negotiation of the notes to a bona fide holder.

[Ed. Note.-For other cases, see Equity, Cent. Dig. § 22; Dec. Dig. 12.]

2. EQUITY 39(3) — JURISDICTION-RETEN

TION-DAMAGES.

Where plaintiff in good faith sued in equity for rescission of a sale contract and return of money paid on the ground of fraudulent representations inducing the sale, equity, having acquired jurisdiction, could retain it to award damages, though he abandoned his claim for rescission and elected to affirm the sale, owing to change of circumstances produced through his industry.

[Ed. Note.-For other cases, see Equity, Cent. Dig. 110; Dec. Dig. 39(3).] 3. CANCELLATION OF INSTRUMENTS

RISDICTION-RETENTION-DAMAGES.

58-JU

Where, after sale of a theater induced by fraudulent representations as to profit, the buyer sued to rescind and for the price paid, but pending suit by his industry made the business pay, it was not an abuse of the court's discretion to allow him to waive prayer for rescission

and to award damages.

[Ed. Note.-For other cases, see Cancellation of Instruments, Cent. Dig. §§ 118, 120; Dec. Dig. 58.]

[1, 2] The defendant has waived his right to have a report of the evidence made part of the record, and the only question raised by his appeal is whether the final decree is warranted by the pleadings and the facts found by the trial judge. found by the trial judge. Huntress v. Allen, 195 Mass. 226, 233, 80 N. E. 949, 122 Am. St. Rep. 243; Burt & Co. v. Coes & Young Co., 212 Mass. 134, 98 N. E. 596. His sole contention before us is that the court did not have power to retain the bill merely for the assessment of damages, after the plaintiffs had abandoned their claim for relief by way of rescission.

The bill, as originally filed, admittedly presented a proper claim for equitable relief; and upon the court's findings of fact rescission properly could have been granted. The plaintiffs had a right to relief in equity if only to prevent the negotiation of the notes to a bona fide holder. Brown v. Statter, 206 Mass. 119, 92 N. E. 78. Jurisdiction in equity was fixed when they brought their bill in good faith seeking the equitable relief to which they were entitled. Lexington

Appeal from Superior Court, Suffolk Coun- Print Works v. Canton, 171 Mass. 414, 50 N. ty; John D. McLaughlin, Judge.

E. 931. That jurisdiction was not lost when Suit by George M. Rosen and others the court proceeded to award damages as the against Louis B. Mayer and another. Judg- remedy adapted to the case under the cirment for plaintiffs, and defendant Mayer cumstances then existing. It is the general appeals. Affirmed. practice of our courts, where a plaintiff with

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