way might be found defective. Stanton v. Springfield, 12 Allen, 566. But while this liability no longer exists, the plaintiff claims that the defendant is not within the exemption, as the statute was not intended to say, that an artificial condition created by the municipality, or by a volunteer of whose acts it could be found to have had constructive notice, for the express purpose of draining the streets of water from melting snow, and ice, may not create an actionable defect. The argument accordingly is, that it was not merely snow and ice from climatic causes, or as changed into unnatural formations arising from the exigencies of public use, into which the wheels of the intestate's wagon sank, but they passed into a hole or channel which was none the less an artificial obstruction, even if the sides may have been formed of snow and ice more or less compacted. But if the temporary channel itself was neither produced by a natural formation of snow and ice, nor as the result of the use of the street, yet the accident would not have happened but for these elements. The efficient cause within the meaning of the statute was no less decisive, because aided by human agency, than if the channel had been formed by the pressure of the water forcing an opening for itself, when, of course, the defendant would not have been liable. In the recent case of Newton v. Worcester, 174 Mass. 181, 54 N. E. 521, which was followed in Bailey v. Cambridge, 174 Mass. 188, 54 N. E. 523, it was said by Mr. Justice Hammond: "We think the proper, and only reasonable interpretation of the statute is, that whenever ice or snow is the sole proximate cause of the accident, there shall be no liability, but where at the time of the accident there is any other defect to which as a proximate cause the accident is in part attributable, there may be a liability, notwithstanding the fact that it also may be attributable in part to the ice or snow." the practical application of this construction, it was further said: * * The atten

In

tion is to be directed to the actual physical condition of the way for the purpose of ascertaining, whether there is at the time any other danger to the steps of the traveler, than that arising from the presence of ice or snow. If there be no other danger, then for the time being, the way is 'otherwise reasonably safe and convenient.'" The "other danger" referred to, is some defect either in its structural condition, or an obstruction to travel which exists independently of snow, or ice. If left as precipitated, or as subsequently affected by climatic action alone, or the passing of travelers, neither creates a defective condition, even if thereby a public thoroughfare becomes dangerous. But a city or town is subject to indictment, and fine, if it neglects to maintain a highway when encumbered with snow, in a reasonably suitable condition for the use of the public. Rev. Laws, c. 51, § 23. It would measurably reimpose the

liability, which in the broadest terms has been abolished by the statute, if the removal by any reasonably safe method of an obstruction arising solely from the existence of snow, or ice, in some stage of natural formation, where except for their accumulation the highway is roadworthy, were held to create an actionable defect. In the extreme and sudden changes of our winter climate, the proper performance of this duty, under section 10, which requires surveyors and road commissioners to cause snow to be removed, or so trodden down as to make the ways reasonably safe and convenient,' may often demand that they should be temporarily drained, or else they may become not only unsafe, but impassable. Loker v. Brookline, 13 Pick. 343, 346; Kidder v. Dunstable, 11 Gray, 342, 343. The provisions of section 19 should be construed with sections 10 and 23 as forming a consistent system whereby cities and towns are exempted from suits by travelers who may be injured because the way has become obstructed by snow or ice, while in the interest of the public, a penalty is imposed, if their statutory duty to remove the obstruction is either wholly neglected, or negligently performed. It, therefore, cannot be said, that an artificial opening for the purpose of drainage, made through the snow, or ice, but not extending below the surface of the soil, whether done by the public authorities, or by some one for whose acts the city could be found liable, renders the street dangerous, in the sense, that it constituted either a defect in the roadway, or an obstacle to travel, for which the defendant should be held responsible in damages. If the practical working rule which we have adopted as following such a construction, is too strict in its limitation of the right of recovery, the Legislature has the power to change it.

Judgment for the defendant.

(197 Mass. 554)

PEAKS v. COBB. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 28, 1908.) LANDLORD AND TENANT-SUBLEASING-COVENANT CONSTRUED "OCCUPY OR IMPROVE." A covenant that lessee would not "lease, underlet, nor permit any other person or persons to occupy or improve, the" premises, is not violated by the lessee permitting another to occupy a room in the premises under a contract to pay her a fixed price per week for the room, its furnishings, and her care of it; the words "occupy or improve" being used respecting a possession which would enable one to maintain trespass against an intruder, and being joined to the earlier part of the covenant, not to add another kind of prohibited occupation to that previously forbidden, but to prevent the tenant from suffering a subtenancy as well as from actively creating it.

[Ed. Note. For other definitions, see Words and Phrases, vol. 6, pp. 4909 4910; vol. 8, p. 7736.]

Report from Superior Court, Suffolk County; Daniel W. Bond, Judge.

Action by Julia F. Peaks against Melville L. Cobb. Verdict for plaintiff, and case reported from superior court. Judgment on the verdict.

See 192 Mass. 196, 77 N. E. 881.

Henry C. Attwill, Charles W. Bartlett, Elbridge R. Anderson, and Arthur T. Smith, for plaintiff. Walter I. Badger and Wm. Harold Hitchcock, for defendant.

KNOWLTON, C. J. The defendant leased the premises in his building to one Mrs. St. Leger. The plaintiff was injured upon a walk leading to the building which was alleged to have been negligently left by the defendant in a dangerous condition. It was assumed at the trial that if the plaintiff was a member of Mrs. St. Leger's household, lawfully claiming in her right, there was evidence proper for the consideration of the jury.

In the defendant's lease to Mrs. St. Leger there was a covenant of the lessee not to "lease, underlet, nor permit any other person or persons to occupy or improve the same, or make or suffer to be made any alteration therein but with the approbation of the lessor thereto in writing." The plaintiff occupied a room in the premises leased to Mrs. St. Leger, under a contract with her to pay a certain price per week for the room and its furnishings and the care of it, which care was provided by Mrs. St. Leger. The defendant contends that this contract was a violation of the covenant in the lease, and that the plaintiff was not rightfully there, and that the defendant owed her no duty. The only question submitted to us is whether the evidence in regard to the covenant in this lease made it the duty of the judge to order a verdict for the defendant.

It was decided in White v. Maynard, 111 Mass. 250, 15 Am. Rep. 28, that such an arrangement with a lodger is not a leasing or underletting of the premises within the meaning of such a covenant. See, also, Day V. Lawrence, 167 Mass. 371-374, 45 N. E. 751.

The principal contention of the defendant is that the words "nor permit any other person or persons to occupy or improve the same," refer to a different kind of occupation from that of a tenant, and that they forbid one holding under such a lease to contract with a boarder or lodger for the occupation by him of specific rooms in the leased premises. We think that this contention is erroneous. The words "occupy or improve" are used here in reference to a possession which would enable one to maintain trespass against an intruder. They are joined to the earlier part of the covenant, not to add another kind of prohibited occupation to that which is previously forbidden, but to prevent the tenant from suffering or permitting a subtenancy, as well as from actively creating

it.

We are of opinion that no breach of the

covenant was shown, and that there is nothing in this part of the evidence to preclude the plaintiff from claiming in the right of the defendant's lessee.

Judgment on the verdict.

(197 Mass. 381)

STIMPSON v. MURCH et al. (Supreme Judicial Court of Massachusetts. Middlesex. Feb. 28, 1908.)

1. WILLS CONSTRUCTION-INTENT OF TESTATOR.

In interpreting wills, the intent of the testator should be ascertained and given effect, unless prevented by some inexorable rule of law. [Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 955.]

2. SAME-ESTATE DEVISED-FEE SIMPLE.

Testatrix devised to her nephew her "homestead estate, * * to have and to hold the same to him during his life or until he shall have married, and when he shall marry, and likewise in case he shall either be married or have issue at my decease, said estate shall vest in him in fee simple, and as his absolute property." Held, that on the nephew's marriage subsequent to the death of the testatrix his life estate ripened into an estate in fee.

Exceptions from Land Court, Middlesex County; Charles T. Davis, Judge.

Petition by Ellen R. Stimpson for registration of a title to land. In the land court it was ruled that, under the will of Mary Ann Davenport, Walter Stimpson took an estate in fee in the land, and Mary F. Murch excepted. Walter Stimpson died in 1905, leaving his entire estate to petitioner. The will of Mary Ann Davenport was made in 1886, and she died in 1888. Exceptions overruled.

Wm. E. Hutchins and H. I. Cummings, for petitioner. Francis Burke, for respondents.

the same to him during his life or until he shall have married, and whenever he shall marry, and likewise in case he shall either be married or have issue at my decease, said estate shall vest in him in fee simple, and as his absolute property." Walter, the nephew, mentioned in the will, in 1873, at the age of 18, went to live with the testatrix, and remained a member of her family until her death. She was very fond of him. He was married for the first time in 1890, and died in 1905, never having had issue. By his will his entire estate was given to the petitioner.

The question is as to the estate acquired by Walter under the will of his aunt. The cardinal rule to be followed in the interpretation of wills is to ascertain the intent of the testator, and then give it effect, unless

prevented by some inexorable rule of law. The language employed by the testatrix Davenport admits of but one reasonable interpretation. It contemplates three different contingencies, which together cover the whole range of possibility as to the marriage of the beloved nephew. He was unmarried at the time the will was executed. She deals first with that situation, and says that he shall have during his celibacy a life estate which shall ripen into an estate in fee whenever he shall marry. Weston v. Foster, 7 Metc. 297. The second condition for which she made provision was that of his being married at the time of her death, and she gives to him a fee in that event. The third aspect of his life, which she considered, was that of his having married and become a widower before her death, but having issue at that time, and he is given an estate in fee if these are the circumstances. The use of the words "and likewise" are criticised by the respondents as tending to create an ambiguity. But they are not susceptible of such construction. The sentence perhaps might have been slightly more grammatical, if the modifying clause creating the estate in fee simple had preceded these words, but even as to this there would probably be dif ferences of literary taste. There is nothing unreasonable in the will as thus interpreted. It was only in the event that Walter should decease without having either wife or child after her death that the testatrix left her estate to be distributed as intestate among her brother and sisters. Contrary to the ineffectual attempts sometimes made by those executing wills to cut down or take away an estate on marriage, the present testatrix, in pursuance of sound public policy and the dictates of affectionate regard for the happiness of her dearest relative, gave as an added inducement to marriage a larger estate in that event.

Exceptions overruled.

(197 Mass. 388)

McCALLUM v. SIMPLEX ELECTRICAL CO.

(Supreme Judicial Court of Massachusetts. Middlesex. Feb. 28, 1908.)

1. ASSIGNMENTS-FUTURE WAGES-NECESSITY OF WRITING.

St. 1905, p. 224, c. 308, provides that no assignment of future earnings shall be valid. unless executed in writing, for a period not exceeding two years from the date of any power of attorney under which said assignment is made. Held that, where a power of attorney to execute and deliver an assignment of wages covered a period of more than two years from the date of the power, an assignment by the attorney, executed after the statute went into effect, was a nullity.

ing two years from the date of the power of attorney under which the assignment is made, is constitutional.

Exceptions from Superior Court, Middlesex County.

Action by Hector McCallum against the Simplex Electrical Company. Defendant excepts. Exceptions sustained.

Paul M. White, for defendant.

RUGG, J. This is an action of contract to recover wages alleged to be owing to the plaintiff for labor performed for the defendant for two weeks from February 23, 1906. The plaintiff began his employment with the defendant on February 16, 1906. On December 5, 1904, he executed and delivered to Boyle Bros. (for whose benefit this action is brought) an instrument, which purported to be a power of attorney, authorizing them or any person they might substitute to execute and deliver an assignment of his wages. By instruments dated on June 13, 1904, and on December 1, 1904, Boyle Bros. undertook to appoint one Plunkett their attorney to execute assignments. Apparently acting pursuant to the authority assuined to be conferred by one or the other of these instruments, Plunkett by writing dated on the 23d day of February, 1906. executed a form of assignment of the wages of the plaintiff in the employ of the defendant to Boyle Bros. covering the period in question. These instruments were seasonably recorded, and notice of the pretended assignment of the plaintiff's wages was given to the defendants on the day of its date.

Interesting questions are presented as to the construction and effect of the original power of attorney, executed by the plaintiff and the prior instruments signed by Boyle Bros. and the assignment in the name of the plaintiff but executed by Plunkett as his attorney. Without passing upon these, we rest the decision upon St. 1905, p. 224, c. 308. This act provides: "No assignment of future earnings, whether made by the assignor in person or by attorney, shall be valid unless executed in writing, for a period not exceeding two years from the date of any power of attorney under which said assignment is made." Whatever validity there may be in the assignment, executed in the name of the plaintiff by Plunkett as the attorney for the plaintiff, under date of February 23, 1906, depends wholly upon the power of attorney given by the plaintiff to Boyle Bros. under date of December 5, 1904. This assignment covered an entire and unbroken period from its date to April 20, 1907, and was thus for a period considerably in excess of two years from the date of the power of attorney, upon the strength of which it was made. But by the express terms of the statute no such assignment for a period exceeding two years from the date of the power of attorney can be valid. It follows that the assignment of

February 23, 1906, was a nullity, being in contravention of the statute. The statute went into effect before the date of the assignment, and therefore governs it.

There is no doubt as to the constitutionality of the statute. Knoxville Iron Co. v. Harbison, 183 U. S. 13, 22 Sup. Ct. 1, 46 L. Ed. 55; Opinion of the Justices, 163 Mass. 589, 40 N. E. 713, 28 L. R. A. 344; Com. v. Danziger, 176 Mass. 290, 57 N. E. 461; Squire v. Tellier, 185 Mass. 18, 69 N. E. 312, 102 Am. St. Rep. 322; Com. v. Strauss, 191 Mass. 545, 78 N. E. 136, 1 L. R. A. (N. S.) 968; International Text Book Co. v. Weissinger, 160 Ind. 349, 65 N. E. 521, 65 L. R. A. 599, 98 Am. St. Rep. 334.

St. 1906, p. 366, c. 390, did not go into effect until after the occurrence of the events here in issue.

As this action depends upon the assignment executed by Plunkett, it cannot be maintained.

Exceptions sustained.

(197 Mass. 332)

MCCARTHY v. MORSE et al. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 27, 1908.)

1. NEGLIGENCE-CONTRIBUTORY NEGLIGENCEAPPRECIATION OF RISK- Knowledge of DANGER.

Intelligent appreciation of a risk cannot necessarily be predicated upon a mere knowledge of some danger.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 86-89.]

2. SAME-UNDERSTANDING OF DANGER.

The doctrine of assumption of risk apart from contract has no application to cases where there is no adequate understanding of the extent of the exposure to injury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 86-89.]

3. SAME QUESTIONS FOR Jury.

In an action by a person, whose duty it was to keep a temporary bridge free from obstruction, for injuries received while attempting to move a wooden railing on the bridge so as to enable two teams, which were on the bridge and unable to pass each other, to proceed, which injuries were sustained as a result of the driver of one of the teams striking his horse with a whip, causing it to start suddenly and throw a part of the railing against the person injured, evidence examined, and held to take to the jury the conflicting considerations of plaintiff's stress of duty, obviousness of danger, and extent of risk.

[Ed. Note.-For cases in point, see Cent Dig. vol. 37, Negligence, §§ 333-340.]

4. SAME-PROXIMATE CAUSE OF INJURY.

The act of a foreman of a city waterworks department in being engaged in certain work without a permit as required by the city ordinance, though evidence of negligence on his part which might preclude recovery for an injury received in such work, cannot be said as a matter of law to be a direct and proximate cause of his injury, so as to make the action one founded upon his own violation of the law, where he was not himself in charge of a city department, but received his orders from the superintendent of the water department, and where a permit for the work had been issued, which

was shown to have expired by its own limitation and not to have been renewed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 327-332.]

Exceptions from Superior Court, Suffolk County; Daniel W. Bond, Judge.

Action by Michael McCarthy against Willie W. Morse and others. From a judgment for plaintiff, defendants bring exceptions. Overruled.

A. K. Cohen, for plaintiff. Walter I. Badger, William H. Vincent, and Wm. Harold Hitchcock, for defendants.

RUGG, J. This is an action of tort by a foreman in the employ of the water department of the city of Boston, for injuries sustained while attempting to move a woodeu railing of a temporary bridge about 24 feet wide and 13 feet long, which spanned a trench 8 feet in depth, excavated by men in charge of the plaintiff. The bridge had been erected the day before under the direction of the plaintiff at a junction of two public streets, in order to provide a passage for travelers over the excavation. On each side of the bridge and extending somewhat beyond it at both ends was a railing, which consisted of light wooden saw horses 2 feet wide at the base, resting upon but not attached to the floor of the bridge, and about 2 feet in from its edge, connected by planks nailed on their tops so as to form a continuous line. Either row of saw horses could be moved by taking hold of it anywhere. Just before the accident the plaintiff, who was standing upon a bank of earth near the trench and bridge, saw two wagons, one belonging to each of the defendants, standing close together on the bridge but headed in opposite directions. The evidence was conflicting as to the precise position of each wagon, but there was loud talk between the respective drivers, and the hubs of the two wagons were so situated that the teams could not pass without collision. There was evidence tending to show that the plaintiff, observing this situation, jumped upon the bridge between its edge and the wooden saw horses opposite the team of one of the defendants, in order to move the saw horse nearer to the edge of the bridge, and thus give the teams more room to pass, and that it was a part of his duties as foreman to keep the bridge "free from obstruction and clear for the purpose of travel, particularly with the view of giving free access to the engines of the Boston fire department in case of fire, and that in pursuance of this duty he went to move the wooden saw horse for the purpose of allowing the teams to go over the bridge and clear the way for travel," and that the driver of the team nearer the railing backed a few inches three times, in order to allow the other team to clear and pass, and that, this end not being attained, both teams started up together, as the plaintiff was taking hold of the wood

en saw horse to move it so as to make wider the passageway on the bridge, and this driver, looking toward the plaintiff, struck his horse with a whip, which caused the horse to start sharply and suddenly, and throw the wooden saw horse against the plaintiff and injure him.

A verdict was rendered for the plaintiff, and the exceptions of the defendants Johnson & Co. bring the case here. All the exceptions, except those relating to the plaintiff's due care and assumption of risk and the effect of his violation of the city ordinance, are either expressly waived or treated as waived because not argued.

There was evidence that it was a part of the duty of the plaintiff to see that the bridge was not obstructed, and was kept open for travel. When he saw that two teams were in imminent danger of locking hubs, and that their drivers were not preserving a calm temper about it, it was not unreasonable for him to assume that a blockade might ensue unless something was done to prevent it, and that if he should widen the roadway a few inches, by moving outward the fence, all trouble might be avoided. It was in the line of his duty to bring about this result by any reasonable effort. It cannot be said, as matter of law, that he failed to exercise due care in standing upon the space between the edge of the bridge and the railing in order to move the latter the short distance necessary to enable the teams to pass. The space was two feet, and the movement outward of the railing a few inches would afford sufficient room in the traveled way. If he had gone inside the rail he would have been in the way of one of the teams, and by remaining upon the outside he could be more observant not to move the railing so far as to precipitate it into the trench. Moreover, he could rightfully assume that there would be no such active carelessness on the part of either of the drivers as to violently collide with the railing with force sufficient to throw him down. His duty called him to a place of some danger, created, not by his own fault, but by the acts of those, for whom he was in no wise responsible. Whether he was less or not depends in considerable degree upon the exigency, in which he acted, and what harm he then ought to have foreseen, and not so much upon what the event has shown was the real danger. Intelligent appreciation of the risk cannot necessarily be predicated upon a mere knowledge of some danger. Linnehan v. Sampson, 126 Mass. 506, 30 Am. Rep. 692. The doctrine of assumption of risk, apart from contract, has no application to cases where there is no adequate understanding of the extent of the exposure to injury. Under these circumstances it was for the jury under appropriate instructions, to weigh the somewhat conflicting considerations of stress of duty, obviousness of the danger, and extent of the risk.

care

It was assumed that the work upon which the plaintiff was engaged was being carried on in violation of a city ordinance. Certain sections of an ordinance were introduced in evidence, but there was no penalty clause offered, and therefore it might have been merely a directory and not a penal regulation. The ordinance prohibited the excavation or obstruction of any street in Boston without a permit from the superintendent of streets. The plaintiff was not himself in charge of a city department, but received his orders from the superintendent of the water department. A permit for this work had been is sued, but there was evidence tending to show that it had expired by its own limitation, and had not been renewed. Under these circumstances it cannot be said that the illegal act of the plaintiff in being engaged upon this work without a permit was the direct and proximate cause of his injury, nor that he was obliged to found his action upon his own violation of law. It was evidence of negligence, which might, or might not, preclude him from recovery, according to the view, which the jury took of his conduct respecting the injury as a whole, including his violation of the ordinance. The case falls within the class of which Newcomb v. Boston Protective Dept., 146 Mass. 596, 16 N. E. 555, 4 Am. St. Rep. 354, and Finnegan v. Winslow Skate Co., 189 Mass. 580, 76 N. E. 192, are examples, rather than in that of Banks v. Highland Street Railway Co., 136 Mass. 485, and Brunelle v. Lowell Electric Light Corp., 188 Mass. 493, 74 N. E. 676. Exceptions overruled.

(197 Mass. 504)

PARSONS v. HENRY et al. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 28, 1908.)

-

1. HUSBAND AND WIFE RIGHTS OF HUSBAND'S CReditors.

St. 1862, p. 172, c. 198, § 1, provides that if a married woman, doing business on her own account, shall neglect to file a certificate in the clerk's office, * * stating the name of her husband, nature of the business, etc., her husband's creditors may take the property under execution. Held, that where a married woman continuously traded in certain commodities, made bank deposits, and kept books of account, she was conducting a business within the staťute, though the business did not require her entire time and she was engaged in other pursuits. 2. SAME.

St. 1862, p. 172, c. 198, § 1, provides that if a married woman, doing business on her own account, shall neglect to file a certificate in the clerk's office, • stating the name of her husband, nature of the business, etc., her husband's creditors may take the property under execution. Rev. Laws, c. 153, § 10, provides that in the absence of a certificate, which the husband may make and record if the wife does not, the husband shall be liable for all contracts lawfully made in the business. Held, that the property of a married woman employed in her business was subject to the claims of her husband's creditors, in the absence of the filing of the statutory certificate, notwithstanding the creditors' knowledge that the woman traded on her sole account.