some respects, is not so strong as Planz v. Railroad Co., 157 Mass. 377, 32 N. E. Rep. 356. See, also, Leonard v. Railroad Co., 170 Mass. 318, 49 N. E. Rep. 621. The absence of a fence to the railroad makes no difference as to the defendant's liability. The plaintiff's trespass was deliberate and intentional, and he cannot ask us to say that, if a fence had been there, it might have changed his purpose, and therefore that the absence of the fence is the cause of his misfortune. We see no sufficient evidence of breach of duty on the part of the defendant or of due care on the part of the plaintiff.

Exceptions overruled.

GANNON v. NEW YORK, NEW HAVEN AND
HARTFORD RAILROAD COMPANY.

Supreme Judicial Court, Massachusetts, March, 1899.

CARRIER AND PASSENGER BURNING LAMP IN CAR-INJURED WHILE ENDEAVORING TO ESCAPE FROM APPARENT IMMINENT DANGER. Where it appeared that a lamp in the car in which plaintiff was a passenger blazed up and the conductor and another passenger tried unsuccessfully to fan it out and the plaintiff changed her seat to one near the car door, and a brakeman then attempted to smother the flame with some oily waste which caught fire and blazed and part fell to the floor, and the brakeman rushed to the rear of the car, and it looked as if the car was on fire and the plaintiff became frightened and attempted to leave the car and enter the baggage car, and in her haste struck her arm and received a severe injury, the question of whether plaintiff's conduct was a consequence of defendant's mismanagement was properly left to the jury, and a verdict for her would not be disturbed.

EXCEPTIONS from Superior Court, Barnstable County.

The court refused to take the case from the jury and defendant excepts.

H. H. BAKER, for plaintiff.

H. P. HARRIMAN, for defendant.

HOLMES, J. This is an action for personal injuries suffered by the plaintiff while a passenger upon a train of the defendant. The case, as stated by the plaintiff's witnesses, was as follows: A lamp opposite where the plaintiff was sitting blazed up. A bystander, and then the conductor, tried to fan out the flame with their hats, but did not succeed, and the plaintiff changed her seat to the other end of the car, next to the baggage car. Then a brakeman tried to

smother the flame with oily waste, which caught fire, and blazed, part of it dropping on the floor. The flames came out underneath the lamp. The brakeman got down, and rushed for the rear end of the car, and it looked as if the car was on fire. Thereupon the plaintiff rose to go into the baggage car, presumably in some haste and fright, and struck her arm, hurting her ulnar nerve so badly that she fainted and fell.

An expert on lamps, who was a passenger, testified that the lamp needed more care than ordinary lamps; that the means used to put out the fire were dangerous; and that, with proper skill, the trouble could have been avoided. The judge refused to take the case from the jury, and the defendant excepted.

The judge who tried the case was right. We cannot say, as matter of law, how frightened the plaintiff was or ought to have been, or how great the peril of the fire may have seemed. There is no question before us of the degree of firmness which the plaintiff was bound to exhibit, or, more accurately, of the defendant's immunity from consequences due to unstable nerves. Spade v. Railroad Co. (Suffolk, Jan. 16, 1899), 5 Am. Neg. Rep. 367, 52 N. E. Rep. 747If the peril seemed imminent, more hasty and violent action was to be expected than would be natural at quieter moments; and such conduct is to be judged with reference to the stress of appearances at the time, and not by the cool estimate of the actual danger formed by outsiders after the event. See Linnehan v. Sampson, 126 Mass. 506, 511, 512; Hawks v. Locke, 139 Mass. 205, 209, 1 N. E. Rep. 543; Pomeroy v. Inhabitants of Westfield, 154 Mass. 462, 465, 28 N. E. Rep. 899. We cannot say that an impulsive, and somewhat unguarded, rise from her seat was not a natural and reasonable consequence of the situation as it appeared to the plaintiff. If it was, and if her fear was reasonable, — which, as we have said, we cannot pronounce it not to have been, whatever we may conjecture that we should have thought had we been the jury, then the plaintiff's conduct is recognized by the law as a consequence of the defendant's mismanagement, for which it is responsible. Ingalls v. Bills, 9 Metc. (Mass.) 1; Sears v. Dennis, 105 Mass. 310, 313; Cody z. Railroad Co., 151 Mass. 462, 468, 469, 24 N. E. Rep. 402.

The case of Spade v. Railroad Co., 168 Mass. 285, 2 Am. Neg. Rep. 566, 47 N. E. Rep. 88, does not establish a principle contrary to that of the foregoing decisions. It admits that principle, and merely sets a limit to its logical extent, upon practical considerations. Exceptions overruled.

WHELTON v. WEST END STREET RAILWAY COMPANY.

Supreme Judicial Court, Massachusetts, March, 1899.

STATUTE- MASTER AND SERVANT-SUPERINTENDENT. — Under St. 1887, ch. 270, which authorizes a recovery for an injury occasioned by the negligence of a superintendent, a car shifter is not such a superintendent where it appeared that his only duties were to get cars ready for conductors and motormen and to start the turntable.

DEFECTIVE APPLIANCE - PRESUMPTION OF RISK.- Where a street car conductor went to the car house to get his car, and while it was being shifted to the main track by means of an electric turntable, he was given the trolley rope to shift to the other end of the car, and while walking on the floor of the car house his foot was caught under the turntable rails that projected over the floor and were raised about an inch and a half above it, and he was thrown down and injured, the company was not liable as the conductor knew or should have known of the danger to be avoided having done the same work on numerous occasions for more than a year. EVIDENCE. - Evidence that after the accident the flooring of the car house was raised to meet the rails was properly excluded.

EXCEPTIONS from Superior Court, Suffolk County. There was a verdict for defendant and plaintiff excepts.

ROBERT W. NASON AND THOMAS W. PROCTOR, for plaintiff.
GEORGE H. MELLEN, for defendant.

BARKER, J. — The plaintiff had had nine years' experience as a street-car conductor in the plaintiff's service. He went into a car house for a car. The car had to be moved to the main track, by means of a transfer table moved by electric power, operated by another employee, a car shifter, who, with the plaintiff, were the only persons, in the car house. The car shifter ran the car onto the table. The trolley rope then had to be shifted to the other end of the car. The car shifter handed the trolley rope to the plaintiff, saying, "Here is the rope." The plaintiff, taking the rope, started with it, walking on the floor of the car house. way around to the middle of the car, the car table. The plaintiff called out to him to wait. to the roof of the car was caught, and this caused the plaintiff to walk back the other way; and while so doing, and looking up and trying to free the spring, a track rail, which was part of the fittings. of the table, and which projected some eighteen inches from it over the car-house floor, with a space of about an inch and a half between

When he was half shifter started the A spring attached

the bottom of the rail and the floor, and which was in motion with the table, caught the plaintiff's toe, threw him down, and pushed him along the floor, and against another rail fastened to the floor. This occurred on June 12, 1895. The transfer table had been put in on June 2, 1894, replacing one to which power was applied in a different manner, and with rails projecting only about half as far. The plaintiff had been in the habit of using such a transfer table five or six times a month since the defendant had used electricity as a motive power. He might have got upon the car before the transfer table started; and the trolley rope was long enough so that if, in shifting the trolley pole, he walked on the car-house floor, he could have kept himself beyond the reach of the projecting rails. At one point in his testimony, he gave an affirmative answer to the question whether, of course, he had not noticed the projections before; but he testified that he took no particular notice of them, and that his attention had never been called to the fact that there was a space between them and the floor. He also testified that he was shifting the trolley pole in the same way he had always been in the habit of doing it at the times when he had done it, and that he had performed exactly the same operation in transferring a car probably a week before, and knew what was to be done. There was a foreman who had charge and control of the car house, to whose orders the plaintiff was subject when he went to the car house for a car, but the foreman was not present at the time of the accident. The declaration has one count, under St. 1887, c. 270, for negligence of a superintendent, and one, under the common law, for negligently failing to furnish a reasonably safe place in which to work. A verdict for the defendant was ordered upon each count. The questions for decision are whether the verdict was rightly ordered, and whether evidence that after the accident the floor of the car house was raised so that the projecting rail lay flush with the floor, filling the space in which the plaintiff's foot was caught, and that after the change the table worked perfectly, offered by the plaintiff, was rightly excluded.

There was no evidence to support the count, under St. 1887, c. 270. The foreman, who was about, had no connection with the accident, nor was it in any way due to his absence. The whole evidence as to the duties of the car shifter is that it was his duty to get cars ready for the conductors and motormen. Neither his starting of the table, nor his failure to stop it, was an act of superintendency. The evidence as to the raising of the car house floor after the accident was properly excluded. While evidence that other safer appliances then known might have been used would have been competent,

as in Wheeler v. Manufacturing Co., 135 Mass. 294, the evidence excluded was not of that character. Dacey v. Railroad Co., 168 Mass. 480, 3 Am. Neg. Rep. 183, 47 N. E. Rep. 418, and cases cited. Upon the common-law count, the verdict for the defendant was rightly ordered, for the reason that, upon the circumstances to which the plaintiff himself testified, the risk of having his foot caught by the moving projecting rail, if, looking upward at the trolley, he walked within reach of the projection, was one which he either knew and appreciated or ought, from his opportunities for observation, to have known and appreciated, and which he could have avoided by doing his work in such a way as to keep out of reach of the projection. If he knew the danger, he is prevented from recovering, both because he was careless in not avoiding it, and because he accepted the risk. If he did not know the danger, it was because of a negligent omission to observe what was obvious, and what due care required him to observe and to avoid. Besides an experience of three or four years with quite similar transfer tables, he had for more than a year had numerous occasions to do the same work, in connection with this table, which he was doing when hurt. Goldthwait v. Railway Co., 160 Mass. 554, 36 N. E. Rep. 486, and cases cited; Goodes v. Railroad Co., 162 Mass. 287, 38 N. E. Rep. 500; Cassady 7. Railroad Co., 164 Mass. 168, 41 N. E. Rep. 129; Quigley v. Thomas G. Plant Co., 165 Mass. 368, 43 N. E. Rep. 205; Barnard v. Schrafft, 168 Mass. 211, 46 N. E. Rep. 621; Bell v. Railroad Co., 168 Mass. 443, 3 Am. Neg. Rep. 37, 47 N. E. Rep. 118. Exceptions overruled.

WASHBURN v. INHABITANTS OF EASTON.
Supreme Judicial Court, Massachusetts, March, 1899.

DEFECTIVE HIGHWAY - SHADE TREES PLANTED CLOSE TO TRAVELED PART OF ROAD. — A town is not liable for injuries to a traveler on a highway on which trees were planted by the road commissioners under Pub. St., ch. 54, § 6, and into which he drove, where he claimed that the trees were located in a position dangerous to public travel, and it did not appear that they were dangerous from decay or in any way except by their location.

FROM a judgment of Superior Court, Bristol County, in favor of defendants, plaintiff brings exceptions.

F. S. HALL, for plaintiff.

H. J. FULLER, for defendants.