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to be found in an action under the statute. But the common law
recognizes no right of action in a case of this kind, and, although
the counts are imperfect, we think the action must be deemed to
have been brought under the statute.

We are of opinion that the withdrawal from the jury of the
evidence of the action of the selectmen in writing a letter to the
defendant about seven months before the accident, requesting it
to maintain a flagman and lights at the crossing, leaves the de-
fendant without a legal ground of objection to the admission of
it. It appears from the charge that at the time of its admission
the court expected that it would be followed by other ***^evidence
which was not subsequently offered, and both parties were in-
formed that it was withdrawn from the jury, and they made their
arguments with the understanding that it was not in the case.
We do not see that it was so prejudicial to the defendant in ita
effect as to require us to grant a new trial.

If there was error in the original instructions in regard to
gross negligence, the error was corrected, and the jury were prop-
erly instructed soon afterwards. In the first case, the exceptiona
must be overruled, and in the second caae, thej muat be aoa-

So ordered.

BP££D.— In the absence of statatory regulations aa to the rate of
■peed of trains, greater caution is required of a railroad company in
ninning its trains in the country while pASBing places where it is Isnown
that persona are in the habit of crossing the track, than is required

Digitized by


Oct 1896.] Gbiffik v. Unitbd Blkctbic Light Co. 477

while running In nnfreqaented and toantDy popalatod sections: Scfaez*
nadrye t. Texu etc By. Oo., 46 La. Ann. 248; ante, p. 881, and note.
Greater care ia required of a raUroad company than ia otherwise necea-
oary in running its trains in a populous town, and especially when it
is running out of time or at an unusual hour: Troy t. Gape Fear etc
B. B. Co., 99 N. C. 298; 6 Am. St. Bep. 521, and note.

AT GB08SINGS.— Persons whose business takes them across a rail-
road track, must, before attempting to crosn, exercise prudence and care
and look and listen for approaching trains. If they do this, it is not
negligence on their part to go upon the track when no approaching
train ia in sight: Schexnadrye T. Texas etc. By. Co., 40 La. Ann. 248;
ante, p. 821, and note. A person approaching a railroad crossing has
a right to assume that the company acts with proper care, and that all
reasonable and necessary signals ot approach will be gi^en bj those in
charge of the train ; but such person must make vij^ilant use of his
senses to ascertain if there is danger in crossing, and il he neither sees
nor hears any indications of a moving train, he cannot be charged with
negligence in aasuming that there is none near enough to make the
crossing dangerous: Atchison etc B. B. Cc T. Hague, M Kan.S84;
45 Am. St. Bep. 278, and note.

FECT OF.— If a court instructs a jury to disregard evidence which had
been received against objection and exception, the exception ia thereby
vitiated, and the error in admitting the evidence ia no longer available
on appeal : Alabama etc B. B. Co. v. Frasier, 93 Ala. 45; 80 Am. St.
Bep. 2S,

for the court to refuse to give an instruction fully covered in the general
charge: Gibson v. Minneapolis etc. By. Co., 55 Minn. 177; 48 Am. St«
Bep. 48J, and note; Biepe v. Elting, 89 Iowa, 82; 48 Am. 81. Bep. 856.

Gbiffin V. United Elbotbio Light Gompant.

[164 MlflBACE1]BITl% 192.]

the insulating material is worn off cannot be adjudged guilty of neg-
ligence as a matter of law, where It appears that he did not know that
the wire was damaged nor that it was an electric wire.

WIBE MAY BE INFERRED by the Jury from the fact that its Insu-
lAtion was gone, and that it had been In this condition so long that
the defendant ought to have known of it.

who lawfully comes for a business purpose upon premises on which It
maintains a dangerous electric wire the duty of exercising reasonable
diligence in seeing that the wire is kept In a state of repair.

J. B. Carroll, for the plaintiff.

W. H. Brooks and W. Hamilton, for the defendant

^^ LATHROP, J. This is an action of tort for personal in-
juries sustained by the plaintiff by receiving an electrical shock
from a wire of the defendant company. The plaintiff was a

Digitized by


478 Gbiffik v. United Electric Light Ca [Mam.

tinfimith^ and was at work with a fellow-seirant placing a gal-
vanized iron conductor on the rear of a building called the Ameri*
can House. He was upon the ground^ and his fellow-servant was
on a ladder ^^^ near the roof of the buildings which was about
twenty-two feet from the ground. The wire from which the
pIainti£F received the shock ran along the wall of another build-
ing until it reached a point about two feet from a comer formed
by this building with the American House, and then ran diag-
onally across the corner to the wall of the American House at
a point eight or ten feet from the same comer, where it entered
a square iron block attached to the wall of the American House.
This wire was about twelve feet from the ground. Six or eight
inches higher than this wire, and about eight inches nearer to
the building, another wire ran along and went into the same box.
The conductor was to be placed in the comer formed by the two
buildings for the purpose of carrying off water from a gutter un-
der the eaves of the American House.

We are of opinion that there was evidence for the jury that
the plaintiff was in the exercise of due care. The jury might
well have found, on the evidence, that the injury was caused by
the pip6 coming in contact with a place on the wire where the
insulating material had become worn off. It cannot be said, as
matter of law, that this condition was so apparent to the plaintiff
that he must have seen it, or ought to have seen it, although the
accident happened in the forenoon. While an expert may^ con-
sider it dangerous to touch any wire, unless he knows it to be a
harmless one, there was evidence that the plaintiff was not an ex-
pert, and did not know that an electric light wire would do any
hurt, or that electric light wires ran on the sides of buildings.
The question of his due care was for the jury: Hlingsworth v.
Boston Electric Light Co., 161 Mass. 583, 688.

We are of opinion, also, that there was evidence of the defend-
ant's negligence proper to be considered by the jury. There was
certainly evidence that the insulation of the wire was gone, and
its condition was such that the jury might have found, from the
description given of it by the witnesses, that it had been in that
condition for such a length of time that the defendant ought to
have known of it. The plaintiff was not a trespasser or a mere
licensee, who must take the premises of another as he finds them.
He was rightfully on the premises for purposes of business. On
these premises the defendant had rightly placed, as the case finds,
two electric wires. These were *^ a source of danger unless
properly insulated. This fact was recognized by the defendant

Digitized by


Oct 1896.] Obiffin v. United Blbctbig Light Co. 479

by insnlatiiig them. But it was negligent if it failed to use rea-
Bonable diligence in seeing that its wires were kept in a state of
repair. This duty it owed at least to every person who^ for pur*
poses of business^ was rightfully upon the premises. What its
duty was in this respect as to other persons we have no occasion
to inquire: See Illingsworth y. Boston Electric light Co., 161
Mass. 583.

The ruling of the justice of the superior court in favor of the
defendant is stated^ in the report upon which the case comes be-
fore us, to be based upon the case of Hector y. Boston Electric
Light Co., 161 Mass. 568. But that case dififers essentially from
the one before us. There a lineman of a telegraph and telephone
company was sent to attach a wire to a standard owned by the de-
fendant on the roof of a building numbered 45 Temple Place in
Boston. Instead of entering this bidlding and going out upon
the roof, he went up through the building numbered 29 Temple
Place, passed over the roofs of several intervening buildings un-
til he came to the roof of No. 41, which was next to, but higher
than, the roof of No. 45. A bunch of wires ran from the stand-
ard of No. 45 over a small portion of the roof of No. 41. The
plaintiff stooped under these wires to see how he could get on to
the roof of No. 45, and was injured by reason of the insulation
being worn off from one of these wires. The case was decided in
favor of the defendant, upon the ground that the defendant owed
no duty to the plaintiff to maintain an effectual insulation of its
wires over other buildings than that on which its standard was
placed, which was the only place to which the telegraph and tele-
phone company sent the plaintiff, or where he had a right to be.
In the case at bar, the plaintiff was rightfully where he was when
injured. The question of the defendant's negligence was for the

By the terms of the report, the order must be, case to stand for

WIRES.— A company or person nsing wires to convey electricity is re-
quired to use very great care to prevent injury to persons or property :
Giraudi ▼• Electric Imp. Co., 107 Gal. 120; 48 Am. St. Rep. 114, and

WIRES. — One who has no knowledge of the fact that an electric wire
being wet destroys the insulation for the time, is not guilty of contriba«
tory negligence in srasning such wire with his hands when he comes in
contact with it: Giraudi v. Electric Imp. Co., 107 Cal. 120; 48 Am. St,
Rep. 114.

Digitized by


460 LuicoLtt V. Gay. [Hmi.

Lincoln t;. Gay

[164 UABUioammB, 587.]
enable her to do her work in a reasonable and proper manner. Her
imderatanding that it was proper to make a dress up wrong side oof
cannot relieve her from liability for doing so, if , in the execdse of a
proper degree of skill and care, the dress ought not to have been made
up in that way.

BSTOPPBL— .One who tries on a dress made up wrong side out
by the dressmaker is not estopped from recovering damages therefor
by the fact that she tried it on and knew that it was being so made
up, unless the misconduct or negligence of the dressmaker was in-
duced by something that her customer said or did or omitted to say
or do.

fore It is withdrawn or It becomes inoperative.

Action of contract to recover for injuries suffered by the plain-
tiff from the making up of a drees pattern on the wrong side of
the cloth. The defendant, on her part, testified that the dresa
was made up on the wrong side of the goods in puisuance of in*
structions from the plaintiff, and that the plaintiff tried the dress
on at different times while it was being made up; also that tho
plaintiff after receiving the dress came to the defendant's rooma
and said that there were two mistakes; that the interlining had
been omitted and that the goods had been made up wrong side
out; that the defendant then said she was willing to put the in-
terlining in, but could not see how she could be blamed for some-
thing that the plaintiff had selected herself, and that plaintiff
decided, if defendant would put the interlining in and fix the
collar, that she would accept the suit. The testimony upon the
part of the plaintiff conflicted with that of the defendant, and
was to the effect that no instructions had been given as to the
mode of making up the dress, and that the whole matter had
been left to the defendant, and that though the plaintiff had
tried on the dress, she had made no examination nor taken any
special notice of it, and that it was being made up wrong side
out escaped the plaintiff's attention until the dress had been
sent to her house as finished. The plaintiff also denied that
she had said that under certain circumstances the dresa
vs'ould be satisfactory or that she would accept it The
defendant asked for the following instructions: "1. If the
plaintiff delivered the dress pattern to the def^idant to
be made up, without in?triietions, and the defendant acted in
good faith, understanding that the dress should be made up on

Digitized by


Kov. 1895.1 Lincoln v. Gay. 481

the unfinished side, and the plaintiff saw the dress^ and fully
understood that it was being so made up when the defendant
was making it up, she would be estopped to refuse acceptance of
the dress, or to refuse to pay for the labor and material put into
it by the defendant; 2. If the plaintiff, after the dress was com-
pleted, agreed to accept the same upon the changes suggested,
as testified to by the defendant, she cannot recover in her action/'
The request that these instructions be given was refused, and in
place thereof the jury was instructed as follows: 'Terhaps I can
simply illustrate it If any one of us should take a piece of
broadcloth to our tailor and ask him to make it into a coat, and
he should undertake to do so and nothing more was said about
it, the law would carry on with the contract which we made the
stipulation that he should make it into a coat, using due and
proper care and skill and proper workmanship, and that would
inyolve putting the cloth in right side out. It is the claim on
the part of the defendant that, while this suit was being made,
the plaintiff was aware of the fact that it was being made up
wrong side out What is the significance of that fact, if it be a
fact? If you should determine that, upon various occasions
when it was being fitted, the way it was being worked up came to
the.knowledge of the plaintiff, tiien that is a circumstance which
you should take into consideration upon the direct question
whether the original agreement was that it should be made up
wrong side out; and it would also be some evidence, not conclu-
sive, that she agreed to modify the original contract and to accept
the work as being made up. If the contract originally was to
make it up right side out, whether by express or implied direc-
tions, it was entirely competent for the plaintiff at any time to
modify that contract by agreeing with the defendant that it might
be made up on the wrong side, and if you should find that, upon
the several occasions when trying it on, it was called to her atten-
tion, and she knew it was being made up wrong, that would be
some evidence, not conclusive, but it would be some evidence that
she agreed to modify the original contract and to accept the work
as being made up. But it may be evidence also upon the
proposition, as claimed by the defendant, that the original agree-
ment was that it should be made up wrong side out. Of course,
you must be satisfied she knew of the fact when she was trying it
on, and that it was being made up in a wrong manner. If you
determine that she did not know it was being made up this way,
you may take that into consideration on the question whether she
modified her original contract, or whether she made the original

AX. 8f. RkPh Vol. XUX.-S1

Digitized by


482 Lincoln v. Gay. [Mi

contract as claimed by the defendant" Verdict for the plaintill^
and the defendant excepted.

W. A. Gile and C. T. Tatman, for the defendant

C. M. Thayer, for the plaintiff.

*^*^ MOBTON, J. If the dress was delivered to the defend-
ant by the plaintiff without any instructions, the defendant, be-
ing a bailee for hire, was held to that degree of skill and care in
the particular occupation in which she was engaged, which was
that of a dressmaker, which would enable her to do the work in-
trusted to her in a reasonable and proper manner: Jackson y.
Adams, 9 Mass. 484; 6 Am. Dec. 94; Story on Bailments, sec.
431, and cases dted. Her understanding that it was a proper
way to make the dress up wrong side out would be immaterial,
therefore, if, in the exercise of a proper degree of skill and care,
the dress ought not to have been made up in that way.

So much of the instruction requested as related to the matter
of estoppel was also clearly erroneous. It made the plaintiff's
knowledge that the dress was being made up wrong side out the
sole test. But in order to justify the jury in finding an estoppel,
it was necessary that there should be evidence tending to show
that the defendant was induced by the plaintiff's conduct to do
something different from what she would otherwise have done,
and that the plaintiff knew or had reasonable cause to know
that the defendant would so act: Tracy v. Lincoln, 145 Mass.
857; Stiff v. Ashton, 155 Mass. 130. The instructions requested
omitted this element We doubt also whether the evidence
would have warranted a finding that there was an estoppel.
The jury have negatived the claim of the defendant that the
plaintiff gave her instructions to make the dress up wrong side
out. The defendant had begun to make the dress before the
plaintiff saw the garment, and it does not appear that she was
induced to make it up wrong side out in consequence of any-
thing that the plaintiff said or did, or omitted to say or do.

The remaining instruction was also rightly refused. The
defendant offered to put the interlining in, and the plaintiff
thereupon said that, if she would put the interlining in and fix
the cpllar, she would accept the suit. It does not appear that
this proposition was accepted by the defendant before it was
withdrawn by the plaintiff.

We discover no error in the instruction as given or in tha
refusal to rule as requested.

Exceptions overruled.

Digitized by


Not. 1895.] O'Cokkob t. Rich. 48a

to become a binding obligation, must not only be made to, bat moat b»
expressly or impliedly accepted by, tbe party for whose benefit it wa»
meant: Strasburg R. R. Co. y. Ecbtemacht, 21 Pa. St. 220; 60 Am^
Dec. 40; Cbadwick ▼. Knox, 31 N. H. 226; 64 Am. Dec. 320. A party
must assent to a proposed contract at the time if be wishes to bind tb^
other party: Johnston y. Fessler, 7 Watts, 48; 82 Am. Dec. 788. See,,
also, tne extended note to Maclay ▼. Harvey, 32 Am. Rep. 52.

Wnen one delivers logs at a custom sawmill to be sawed at an agreed
price, the owner of tbe mill must exercise ordinarv care in keeping and
manufacturing the logs: Gleason v. Beers, 59 Vt. 581 ; 59 Am. Rep. 757. '
The same rule applies to a cotton-ginner : Kelton v. Taylor. 11 Lea, 264 ;
47 Am. Rep. 284. Public millers are held to a very great degree of care
and diligence in safely preserving materials delivered to them to ba
ground: Wallace v. Canaday, 4 Sneed, 364; 70 Am. Dee. 250.

O'Connor v. Kioh.

[164 UABUcsusafm, 660.]

from the previous NEGLIGENCE OF SERVANTS In their
own field la one of the necessary risks which an employee assumes •
on entering aervlee. If, therefore, when one enters upon a contract:
of senrioe, an employee has already been guilty of negligenoe which i
afterward results in injury to one who must have been regardedi
aa a fellow-aervant had he been In the employment when the negll<-
gence occurred, he cannot recover of the master therefor.

Tort to recover for personal injuries sustained by the plaintiff
in the employment of the defendant. The trial judge instructed
the jury to return a verdict for the defendant

E. Higginson and J. W. Cummings, for the plaintiff.

J. F. Jackson, for the defendant.

•«> KNOWLTON, J. The plaintiflf fell and waa injured by-
reason of the breaking of a plank in a temporary staging on*
which he waa working in the defendant's building. It is not
disputed that the staging was of a kind the construction of which-
is ordinarily left to the serrants of the builder, and that the
duty of the master concerning it was performed if he furnished
a sufficient supply of suitable materials from which to oonstmct
it. In this case there was uncontradicted evidence that there
were plenty of planks furnished by the defendant from whiclr
to bufld the staging, and the negligence, if there waa any, wa»
on the part of the workmen who put the planks in place
in taking one which was not adapted to such a use. Upon theae
facta, if the plaintiff had been in the defendants service at the

Digitized by


484 NoYKB V. iNBTiTimaN FOB Sayihob. [MasL

time when the staging was built, it would be yeiy dear that lie
could not maintain his claim: Kennedy y. Spring, 160 Maaa. 203.

But it appears that, although he had previously worked for t
considerable time upon the building, he was away working for
^^ another person four days before the day of the aecidenti
and this staging was erected a day or two before his last engage-
ment in the defendant's service began. Under these circum-
stances, the question is whether the defendant is liable to him for
the previous negligence of a servant in doing work which may
properly be intrusted to servants. We are of opinion that an
employer, under such circumstances, owes one who is about to
enter his service no duty to inspect all the work which has been
done by his servants previously, and which ordinarily may be
intrusted to them without liability to their feUow-servanta for
their negligence. If he owes no such duty, the risk of accident
from previous negligence of servants in their own field is one of
the ordinary risks of the business which the employee assumea
by virtue of his contract on entering the service: See Moynihan
V. Hills Co., 146 Mass. 586, 591; 4 Am. St Bep. 348. Thia
point was expressly decided in Elllea v. Faxon, 125 Mass. 485,
a case very similar to this in its facts: See Wilson y. Merry, L
B. 1 H. L. S. 326.

Exceptions overruled.

fl... .

V ANT— ASSUMPTION OF RISK.— A servaDt aBsumeB all open and lyal-
pable risk of accident in the common coarse of the boaineaB, indading
the negligence ol fellow-servants: Ell v. Northern Pac. R. R. Co., 1 N.
Dak. 836; 26 Am. St. Rep. 621 ; Western Stone Co. v. Whmien. 151 111.
472; 42 Am. St. Rep. 244. and note; Daniel v. Chesapeake etc. Rv. Co.,
36 W. Va. 897; 82 Am. St. Rep. 870. See, also, the note to Wiboo v.
Dunreath eto. Quarry Co., 14 Am. St. Rep. 807.

Notes v. Institution for Savings in Newburyport.

[164 MAMAcmnBTn, 588.]
TRUSTS.— A DEPOSIT of moneys In the bank by A, and tbe tak-
ing of a pass-book headed "A & B, payable to either or smrlTor,"
does not give B any title to snch moneys, though A haa died. If tbe
book was never in the possession of B and she had no knowledae of
the deposit until after the death of ▲.

Action to recover moneys on deposit. Mary L. Hewett int«^
vened, claiming the moneys because the account-book had been
headed in the manner stated in the opinion. Judgment for thi
plaintiff^ and the intervenor excepted.

Digitized by


Not. 1895.] Notes v. Institution fob SAVDiai. 485

. H. P. Monlton, for the daimant.
A. Noyes^ for the plaintiffs.

M» KNOWLTON, J. The plaintiffs' testatrix, Annie M. Pike,
deposited in the defendant savings bank the money for which this
suit is brought, and kept in her possession during her life the de-
posit-book, which was found by the plaintiffs among her effects
after her death. The account in the book was headed, ''Annie
M. Pike and Mary L. Hewett, Newbuiyport, payable to either
or survivor/' It appears that the book was never in the posses-
sion of the claimant, and that she had no knowledge of the deposit
until after the death of the testatrix. Upon these facts, it was
rightly held that the deposit remains the property of the original
depositor, and that the plaintiffs iure entitled to recover. This
is settled by a series of decisions in this commonwealth, '^^ as
well as elsewhere: Brabrook y. Boston etc. Say. Bank, 104 Mass.
228; 6 Am. Bep. 222; Ide v. Pierce, 184 Mass. 260; Sherman y.
New Bedford etc. Say. Bank, 138 Mass. 581, 582; Nutt v. Morse,

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