At the time of the accident the plaintiff, by Garo who was standing by it, and a was stationed at the scales, and his duty was third three or four feet behind the second to ungrip the car, stopping it by the brake if which was still gripped. Of those three cars necessary, so that it could be weighed, and the first two were stationary, while the when he received the signal that it had been third was still moving toward the other weighed, then to take off the brake and start two; that in this state of things he put his the car by the grip. He had been doing this leg in between the two stationary cars; that work for several months. A fellow servant then the second car came up on to him, and named Garo was at work near him, regulat- he "assumes" that the third car following ing the speed of the cars as they approached along, gripped to the cable, struck the second the scale house to be received by the plain-car and pushed it against him. He further tiff. testified that he knew there was bound to be a third car coming up very soon, and that when that third car came up it was bound to carry that second car along with it if that third car was not stopped. He further testified that he could operate the grip and brake while standing outside the rail, but "it would be awfully slow the way the cars were coming."

Whether the whole evidence would war rant a finding that the plaintiff was in the exercise of due care is a question of some difficulty; but in view of the conclusion to which we have come upon the question of the negligence of the defendant it has become immaterial.

The plaintiff testified that when he went to work at 7 o'clock on the evening of the accident, "the cars came very fast, and he had all he could do to handle them and he thought if he stayed there without notifying the engineer he would get hurt and he found them coming so fast he couldn't handle them; that he had one car on the scales and gripped it and started it going; that then he pressed the button near the scale house, which connects into the engine-room," and "spoke to the engineer." He further testified that for a little more than half an hour the cars seemed to come "at a moderate rate of speed, and he kept on gripping the cars as they came." As to the manner of his accident he testi- There is no evidence of any defect in the fied on his direct examination as follows: ways, works and machinery. At the time of "Then [at the end of the 'little more than the accident everything was working smoothhalf an hour' above named] he noticed two ly and as it was intended to work. But cars coming very close together, he the plaintiff maintains that the order givwould say about four feet apart, and Garo following one car up, the last car, and he, the en to the engineer by Sensibough, the deplaintiff, went up and handled the first car, fendants' foreman, was negligent. Upon threw off the grip, put the brake on and stopped this part of the case there was evidence it on the scales about the same time Garo stop- which, although slight and somewhat vague, ped his car behind him [the plaintiff] and he just waited long enough to turn around to would justify a finding that on the night see if Garo was still standing there, and he put in question, after the plaintiff had talked his leg in to grip, and just had the wire out, with the engineer and before the accident, • the other one in, and a jar threw his head the superintendent came into the engine room back and the other car coming behind him came against him and hit him down on his left knee and finding that at the request of the plainand leg; that when the car struck him he tiff the engine was running at a reduced rate kept on to the grip, and the car ahead of him of speed, remarked that he (Sensibough) was dragged him about six feet, he would say, then the "boss here," and ordered the engine to he let go and rolled off; that at that time the grip was on, but he was pretty sure it wasn't be "run at full speed," whereupon the engine tightened, and it was the bumping of the other was run at substantially the same speed as car that caused him to be dragged." before the plaintiff talked with the engineer.

On cross-examination he testified that just before the accident he "saw the two cars coming very close together, one of which was the car that hit him; that the car that hit him, the first one after the one that he stopped, was about 9 feet away from him and 15 feet from the scales; that he knew that these two cars were being propelled by the cable and that the cable was in motion, and that these cars had got to come where he was unless he got out of the way, and that he did not get out of the way; that at the time he was just gripping a car, which was done at the rear end of the car, so that he was standing somewhere between the car that he was gripping and the two cars that he saw coming toward him." He further testified in substance that there were three cars in the vicinity at the time of the accident, namely, the one he was trying to grip,

We do not understand that this order meant that the engine should be run at an unusual speed, but simply that it should be run at its usual speed, the speed at which it was intended to be run. It cannot be construed to mean that if at any time the actual or relative position of any of the cars was such as to create any dangerous situation the power was taken away from the plaintiff or any other employé to have the cable stopped by signaling by means of the button to the engineer, or if necessary to grip or ungrip any car. It was simply an order for the conduct of the business in the usual way and under the usual conditions. The superintendent had the right to assume that an experienced workman, as the plaintiff then was, would observe the speed of the cars, as he did, and would govern himself accordingly; and that there was no need of giving him

"Of course I look upon such exceptions as an argument to the jury and made for the purpose of impressing the jury" to which remark the defendants excepted.

The exceptions as prepared by counsel were returned by the court with an indorsement modifying them in so far as they purported to state what took place when defendants excepted to the criticism of the presid

to what to do or how to act. By this order | ceptions, following which the presiding judge the business was placed on its normal basis, remarked: and such by the fair construction was its intention. It appears further that one less than the usual number of cars was being run on the evening of the accident, and there appears to have been no reason to anticipate any unusual situation. Under these circumstances the order, fairly construed, cannot be regarded as a negligent order. The case differs materially from Carroll v. N. Y., N. H. & H. R. R., 182 Mass. 237, 65 N. E. 69;ing judge. Baggneski v. Lyman Mills, 193 Mass. 103, 78 N. E. 852; Carroll v. Fore River Ship Building Co., 208 Mass. 296, 94 N. E. 275, and similar cases cited by the plaintiff. Judgment on the verdict.

(218 Mass. 469)

WINSTON et al. v. IBANEZ. (Supreme Judicial Court of Massachusetts. Berkshire. Sept. 10, 1914.)

1. MASTER AND SERVANT (§ 265*)-INJURIES TO SERVANT-EMPLOYMENT BY DEFENDANTS -BURDEN OF PROOF

Where plaintiff sued certain individuals as partners for injuries alleged to have been suffered while in their employ, the burden was on plaintiff to prove that he was employed by all the persons named as defendants, unless that fact was admitted or waived.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*]

2. PARTNERSHIP (§ 218*)—ACTION FIRM INSTRUCTIONS

DENCE-WRit.

WEIGHT

AGAINST
OF EVI-

Where defendants were sued as partners, an instruction that the fact that they were so described in the writ was not sufficient to establish the fact, but the jury should weigh all the evidence and determine whether defendants were partners in fact, was erroneous as misleading the jury to assume that the description of defendants in the writ was some evidence of partnership, when in fact it was no evidence at all.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. 88 49, 426-428; Dec. Dig. § 218.*]

On defendants' petition to establish the bill of exceptions without the modification, a commissioner was appointed and on his report the case came before the full court. The commissioner's report is as follows: The commissioner appointed by the annexed order met the parties at Pittsfield in said county of Berkshire on July 10, 1914, and heard their evidence and arguments of counsel and now reports to the court his findings in relation thereto.

It appears that counsel for the petitioners, who were the defendants in the original action, duly filed a bill of exceptions, which was assented to by the counsel for the plaintiff, and which was allowed by the presiding justice of the superior court (who tried the case with a jury) but with the following additions:

1. "The jury returned a verdict for the plaintiff." This statement was interlined and was assented to by counsel as having been unintentionally omitted.

2. The following statement was added to the bill of exceptions, to wit:

"In my opinion the 'undertone' of the defendants' counsel in taking the exceptions referred to was as audible to the jury as the criticism of the magistrate. "With this modification "Exceptions allowed.

"John H. Hardy,

"Justice Superior Court." Hawkins, Ryan & Kellogg, of Pittsfield, for petitioners. J. Arthur Baker and Irving H. Gamwell, both of Pittsfield, for respondent.

RUGG, C. J. [1, 2] It was incumbent on the plaintiff to show at the trial that he was employed by the four persons named as

Exceptions from Supreme Judicial Court, defendants unless that fact was admitted or Berkshire County.

Action by Antonio Ibanez against James O. Winston and others. Verdict was for plaintiff, and defendants petitioned to establish a bill of exceptions without modification and for a new trial. Exceptions allowed and sustained.

This was a petition to establish exceptions.

waived. There was sufficient evidence (which need not be recited) to require the submission of this question to the jury so far as it remained an issue, in view of the defendants' answer setting up a written contract of release given by the plaintiff to the defendants and introduced in evidence. Murphy v. Fred T. Ley Co., 210 Mass. 371, 96 N. E. 1030, Norris v. Anthony, 193 Mass. 225, 79 N. E. 258, and Bagley v. Wonderland Co., 205 Mass. 238, 91 N. E. 317, are decisive in his favor. But in the charge upon this point it was

said:

"The mere fact that the defendants are de

The original action was brought by Ibanez against James O. Winston and three others alleged in the writ to be doing business as Winston & Co. to recover for personal inJuries to Ibanez who alleged that the defendants were copartners. In the superior scribed in the writ as copartners under such a court before John H. Hardy, J., there was a name is not sufficient; the reading of the writ verdict for $1,700 for Ibanez. In the original is not sufficient; but you have to weigh all the action defendants in their answer set up pay-infer that the defendants were so far connectevidence in the case and say whether you can ment to the plaintiff and a release. Follow-ed with this plaintiff that you can infer that ing the judge's charge defendants took ex- they were the defendants in this case enFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

gaged in business under this business name as 15. BROKERS (§ 14*)—SALE OF REAL PROPERcopartners." TY-CONTRACT.

In a suit for specific performance of a broker's contract to convey real property, the con-of the broker's authority, and that he was not owner is not estopped to show the limitation authorized to execute a binding contract of sale.

[Ed. Note.-For other cases, see Specific Per-terested in the property, the execution of the formance, Cent. Dig. 88 38 46; Dec. Dig. 17.*]

mortgage deed with its recital in the grant of a deed from defendant to complainant, the mortgage note which had been prepared by de2. FRAUDS, STATUTE OF (§ 116*)-PRINCIPAL fendant's counsel, testimony that defendant AND AGENT (§ 126*)-SALE OF REAL ES-stated he was only to receive $150 of the $500 TATE-PABOL AUTHORITY.

Hubert A. Murray, of Boston, and Neal Barney, of Lynn, for appellant. M. Ludden, of Boston, for appellee.

265. The broker furthermore never having been instructed to accept the promissory note of the purchaser in part payment of the amount required in cash, there is no contract which can be specifically enforced. Coddington v. Goddard, 16 Gray, 436, R. L. c. 74, § 1, cl. 4. Nor is the defendant estopped as the plaintiff urges from showing the limitations of the broker's authority. The plaintiff's husband was not compelled to deal with him alone. Before acceptance of the contract

Chas. | to make a binding contract. Shaw v. Nudd, Chas. 8 Pick. 9; Heard v. Polley, L. R. 4 Ch. 548; Lawrence v. Taylor, 5 Hill (N. Y.) 107. The conversation held over the telephone between BRALEY, J. [1-4] The plaintiff is a stran- Anglin and the defendant shows that Anglin ger to the contract of which specific perform-informed him that a purchaser on the terms ance is asked. But having been recognized by stipulated had been found. But the direction the defendant as if she were the assignee her then given, "It is all right, go ahead," did rights are the same as those of her husband not include authority to make a contract in whose name alone appears as the proposed writing in accordance with the proposed purchaser. Currier v. Howard, 14 Gray, terms of sale, which would bind the defend511; Wass v. Mugridge, 128 Mass. 194. The ant. Lyon v. Pollock, 99 U. S. 668, 25 L. Ed. decree rests on the finding of the judge, that the contract set out in the bill, executed by "Henry F. Anglin, agent," had been duly authorized by the defendant. It is settled that an agent appointed by parol may make a binding contract for the sale of the real property of his principal, and if the agent signs only his own name the principal can be held, if upon the whole instrument the intention to bind him is manifest as in the case at bar; and not the agent personally. Emerson v. Providence Hat Mfg. Co., 12 Mass. tendered he could have gone to the defend237, 7 Am. Dec. 66; Williams v. Robbins, 16 Gray, 77, 77 Am. Dec. 396; Baker v. Hall, 158 Mass. 361, 33 N. E. 612; Ledbetter v. Walker, 31 Ala. 175. It would follow, that R. L. c. 74, § 1, cls. 4 and 5, having been satisfied, the plaintiff, who has performed her part of the contract, would be entitled to the relief given. Dresel v. Jordan, 104 Mass. 407; Slater v. Smith, 117 Mass. 96. But even under the familiar rule, that the conclusions of fact reached by the judge, which depend upon the credibility of witnesses, and the weight of the evidence, will not be set aside unless plainly wrong, the finding cannot be sustained on the record. Taber v. Breck, 192 Mass. 355, 78 N. E. 472. The evidence for the plaintiff leaves no doubt that the defendant authorized Anglin, a real estate bro-parently obtained the assent to the conveyance ker, to find a customer who would give $7,000 for the farm, $500 of which was to be paid in cash, and the balance secured by a mortgage on the property. It is said in Fitzpatrick v. Gilson, 176 Mass. 477, 478, 57 N. E. 1000, that:

"When a broker has found a customer for that for which his principal has employed him the broker has performed his duty and has earned his commission. Making or not making a contract with the customer produced, enforcing or not enforcing a contract, if made, are matters for the broker's principal to do or not to do, as his ability and inclination determine; they are matters with which the broker is not concerned, and on which his right to a commission is not dependent."

[5-7] The owner, however, is not precluded from going further, and the broker may be instructed and empowered orally not only to find a customer able and willing to buy, but

ant and ascertained the scope of the agency. Having failed to make any inquiry she cannot complain if it appears that he exceeded his powers. Dodd v. Farlow, 11 Allen, 426, 86 Am. Dec. 726; Lowell Five Cents Savings Bank v. Winchester, 8 Allen, 109, 118, 119. It is not contended that there is any evidence of part performance sufficient to take the case out of the statute under the third prayer of the bill. Williams v. Carty, 205 Mass. 396, 91 N. E. 392. And the evidence is insufficient to show ratification. The letters of the defendant and his attorney to Anglin, the appointment by the defendant with the plaintiff of the time and place for passing title, the period elapsing between the sale, and the meeting for performance, during which the defendant ap

of other parties interested in the estate, the execution of the mortgage deed with its recital in the grant of a deed from the defendant to the plaintiff, and the mortgage note which had been prepared by defendant's counsel, the testimony that the defendant said he was to receive only $150 of the payment of $500 which had been actually made in cash, and the taking possession of the premises by the plaintiff, while circumstances of significance, do not charge him either directly or by reasonable implication with notice or knowledge of the contract which had been delivered to and retained by the plaintiff's husband, but never exhibited to the defendant. Combs v. Scott, 12 Allen, 493, 497; Foster v. Rockwell, 104 Mass. 167, 171, 172. The decree must be reversed, and the bill dismissed without costs. Ordered accordingly.

(218 Mass. 515)

that at the time she was carried off her feet

O'DAY ▼. BOSTON ELEVATED RY. CO. she was standing up, holding onto a grabiron

(two cases).

(Supreme Judicial Court of Massachusetts.

Middlesex. Sept. 11, 1914.)

1. Carriers (§ 320*)—Injury TO PASSENGERS -NEGLIGENCE-DISOBEDIENCE OF RULES. Evidence that an elevated railway company made no effort to enforce its rule that passen gers should be induced to leave cars by the side doors and enter by the end doors, and those wishing to leave be allowed to do so before others are permitted to board, but that the end doors were opened at once, and a standing passenger holding a grabiron near the rear door, and not intending to alight, was carried off her feet and the car by the conflict between incoming and outgoing passengers makes a case for the jury. [Ed. Note.-For other cases, see Carriers, Cent. Dig. $ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 13151325; Dec. Dig. § 320.*}

2. CARRIERS (§ 320*)-INJURY TO PASSENGERNEGLIGENCE-UNNECESSARY FORCE.

near the rear door of the car not intending to alight at the station in question.

It appeared that at the time of the accident the following rule of the defendant company was in force:

by the side doors and enter by the end doors, "Passengers should be induced to leave cars provided doors and gates stop abreast of a wishing to leave train must be allowed to do so safe place on the station platform. Passengers before others are permitted to board."

The car in which the plaintiff was riding was a car with a door at each end and one door in the middle. The jury were warranted in finding that though there was a guard between the car on which the plaintiff was riding and the car next to it, he made no effort to comply with this rule, but on the contrary that the end doors of the car were Evidence that the servants of an elevated opened immediately on the arrival of the railway company, after ineffectual efforts had car at the station in question and were not shown that a passenger, pinned between the kept shut until passengers intending to alight car step and the station platform, where she fell, when carried off her feet by outgoing pas- had left or had begun to leave by the middle sengers, could not be removed by use of reason- door. More than that, the superintendent, able force, dragged her out by main force, injur- on being asked why this rule was not coming her leg, though tools with which the plat-plied with, testified in effect that he did not undertake to comply with the rule "because it would be shutting doors in people's faces." Further the jury could have found that the plaintiff was carried off her feet because of the conflict between the incoming and out8. Carriers (§ 317*)—INJURY TO PASSENGERS-going passengers. Under these circumstances

form could have been cut were at hand, makes a case for the jury.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 13151325; Dec. Dig. § 320.*]

EVIDENCE-PRIOR OCCURRENCES.

A passenger, injured in the rush of passengers on and off a car, should, in her evidence as to prior occurrences, be permitted to show what had occurred on previous occasions under the same conditions obtaining when she was injured, though not at the same hour of the day. [Ed. Note. For other cases, see Carriers, Cent. Dig. 88 1295, 1297-1305; Dec. Dig. § 817.*]

the plaintiff had a right to go to the jury under the doctrine of Stevens v. Boston Elev. Ry., 184 Mass. 476, 69 N. E. 338.

[2] There was also evidence that after the plaintiff had fallen between the step and the platform the defendant's servants, after two ineffectual efforts to help her get up, dragged her out by main force. It was in evidence Exceptions from Superior Court, Middlesex that there were tools at hand which might County; Wm. F. Dana, Judge.

have been used to cut away the platform and Two actions, one by Isabella F. O'Day, the thus release her from the painful position other by Thomas F. O'Day, her husband, in which she had been placed after the two both against the Boston Elevated Railway ineffectual efforts had shown that she could Company, the first for personal injury to not get up or be pulled out by use of reasonsaid Isabella, the second for the consequen-able force. There was evidence that in contial damages to her husband therefrom. Verdicts were ordered for defendant, and plaintiffs bring exceptions. Exceptions sustained.

F.

J. J. McCarthy, of Worcester, and T. Waldron, of Boston, for plaintiffs. H. D. McLellan, of Boston, for defendant.

LORING, J. The jury were authorized in finding that the plaintiff in the first case, when a passenger on a car in an elevated train of the defendant company, was carried off her feet by a rush of passengers attempting to alight from the car; that she fell between the step of the car and the platform; that one of her legs went down under her whole weight between the step and the platform and she was thereby pinned in; and

sequence of the manner in which she had been dragged out her leg "was deeply bruised, later there was tremendous discoloration, black and blue places all the way down her leg," and that the plaintiff "at the time of the trial was unfit to come into court to testify or to be in court during the trial because of her mental condition" caused by the treatment which she had received from the defendant. When the plaintiff was pinned in between the platform and the step of the car she became an obstacle to the further operation of the railway, and the jury were warranted in finding that the defendant's servants in removing her used unnecessary force. The plaintiff was entitled to go to the jury on this ground as a second ground of liability.