(223 Mass. 505) PATRICK v. DEZIEL. (Supreme Judicial Court of Massachusetts. Middlesex. April 7, 1916.) 1. MUNICIPAL CORPORATIONS 705(3) — USE OF STREETS-INJURIES TO PERSON-RIGHT IN STREETS. A boy rolling a hoop on a street is not a trespasser, and an automobile driver must exercise reasonable care to avoid him. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1515; Dec. Dig. 705(3).] 2. MUNICIPAL CORPORATIONS 706(3)-USE OF STREETS-ACTIONS FOR INJURIES-BURDEN OF PROOF-CONTRIBUTORY NEGLIGENCE. St. 1914, c. 553, providing that in all actions to recover damages for personal injuries or death the person injured or killed shall be presumed to have been in the exercise of due care, and contributory negligence shall be an affirmative defense to set up in the answer and proved by the defendant, applies to an action for injuries to a boy while rolling a hoop along a city street. CROSBY, J. The plaintiff, a boy twelve years old, was struck by an automobile operated by the defendant upon a public highway in Lowell, and received the injuries for which this action is brought. tween the curbstones and runs in a northerly The highway is seventy-two feet wide beand southerly direction; and in the center there is a single street railway track. The accident happened on June 28, 1915, at about half past four o'clock in the afternoon. The plaintiff, who was rolling a large iron hoop along the sidewalk on the easterly side of the street, crossed the street diagonally in a southerly direction, and while in the gutter on the westerly side of the street was struck by the automobile. The evidence as to the circumstances of the accident was conflicting. ant testified and offered evidence to show The defendthat, while he was operating his machine at a rate of six miles an hour, the plaintiff sud[Ed. Note.-For other cases, see Municipal denly ran in front of, and only about two Corporations, Cent. Dig. § 1518; Dec. Dig. feet from the machine and was struck before 706(3).] the defendant could stop his car. jury believed this evidence, it is plain there could be no recovery. Apparently the jury did not credit this description of the accident. 3. MUNICIPAL CORPORATIONS 706(6)-USE OF STREETS-ACTIONS FOR INJURIES-EVIDENCE CONTRIBUTORY NEGLIGENCE. Where a boy was struck by an automobile from behind while rolling a hoop along the extreme right side of a city street 72 feet wide, upon which there was but a single street railway track, and he testified that before he crossed the track to get on the right side he looked both ways and saw nothing coming, he could not be held as a matter of law contributorily negligent, but that question is for the jury. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. 706(6).] 4. MUNICIPAL CORPORATIONS OF STREETS-ORDINANCES. 706(6)-USE Under a city ordinance providing that no person shall play ball, snowball, or any other game, amusement, or exercise, interfering with the convenient and free use of a street or highway by persons traveling or passing along the same, it is a question for the jury whether the rolling of a hoop along the side of a city street interferes with the free use thereof. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. 706(6).] 5. APPEAL AND ERROR 928(2) — REVIEW PRESUMPTIONS-INSTRUCTIONS. On exceptions to a verdict where the charge is not reported and no exceptions were taken thereto, it must be presumed that full and accurate instructions were given. If the The plaintiff offered evidence to show that he was rolling his hoop on the extreme right hand or westerly side of the street, near the gutter; that he did not see the automobile which was going in the same direction; that he was struck from behind; and that there were no other vehicles upon the street to interfere with or prevent the defendant avoiding a collision. the track to get on the right side of the road, 1. The plaintiff testified that he crossed and "looked back and front and saw nothing coming, that he did not see the automobile when he looked back." [1, 2] The plaintiff was not a trespasser upon the highway because he was rolling a hoop, and the defendant had no right to run over him. O'Brien v. Hudner, 182 Mass. 381, 65 N. E. 788; Slattery v. Lawrence Ice Co., 190 Mass. 79, 76 N. E. 459. Under St. 1914, C. 553, which applies to this case, the plaintiff is presumed to have been in the exercise of due care, and contributory negligence on his part is an affirmative defense to be set [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3750; Dec. Dig. 928 up in the answer, and proved by the de (2).] Exceptions from Superior Court, Middlesex County; Patrick M. Keating, Judge. Action by Louis A. Patrick, by his next friend, against Omer Deziel, to recover for personal injuries. Verdict for the plaintiff for $550, and defendant excepts. Exceptions fendant. fact that the accident occurred upon the ex[3] In view of the width of the street, the tions which the plaintiff testified he took treme right side of the way, and the precauto avoid injury, we do not think it could be ruled that the defendant had overcome the presumption created by the statute, or proved affirmatively that the plaintiff's conduct Jas. J. Kerwin and Jas. C. Reilly, both of contributed to his injury, but that these Lowell, for plaintiff. Henry V. Charbon- questions were matters of fact for the neau, of Lowell, for defendant. O'Brien v. Hudner, supra ; overruled. jury to decide. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 224 112 NORTHEASTERN REPORTER Beale v. Old Colony St. Ry., 196 Mass. 119, 81 N. E. 867; Dowd v. Tighe, 209 Mass. 464, 95 N. E. 853. [4] 2. The defendant introduced in evidence the following ordinance of the city of Lowell: "No person shall within the limits of any public street or highway in the city play at any game of ball, snowball or any other game, amusement or exercise interfering with the convenient and free use of such street or highway by persons traveling or passing along the same.' [5] The defendant contends that the plaintiff at the time he was hurt was acting in violation of this ordinance, and that such violation was the cause of his injury; and, therefore, that the defendant is not liable unless the plaintiff prove the acts of the defendant amounted to gross and willful neg ligence. We are unable to agree with this contention. It is to be noted that the ordinance does not absolutely prohibit games or amusements in the highway, but only such as interfere "with the convenient and free use of such street or highway by persons traveling passing along the Whether the plaintiff was acting in violation of the ordinance was a question of fact for the jury to determine under proper instructions; as the charge of the judge is not reported, and as no exceptions were taken thereto, we must assume that full and accurate instructions were given. or same. 3. The defendant owed to the plaintiff the duty of reasonable care; and, without reciting the evidence, we are of opinion that it could have been found that the defendant could have avoided the collision by the exercise of such care. The defendant's requests for rulings could not properly have been given. The case was rightly submitted to the jury, and as we perceive no error in the conduct of the trial, the entry must be: Exceptions overruled. (223 Mass. 540) JONES V. JONES et al. (Supreme Judicial Court of Massachusetts. PROBATE COURTS 1. COURTS 202(4) Probate courts have power to correct er- should be amended. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 485; Dec. Dig. 202(4).] to 150, §§ 23-26, provide that, if money which a who received the funds. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1154; Dec. Dig. 640.] 4. CONSTITUTIONAL LAW 315-DEPRIVATION OF PROPERTY WITHOUT DUE PROCESSWHAT CONSTITUTES. Where the probate court had jurisdiction over an estate left in trust and authority to distribute the same, an erroneous decree directing the theory that he was dead did not deprive him payment of petitioner's share to his heirs on [Ed. Note.-For other cases, see Constitutionof his property without due process of law. al Law, Cent. Dig. §§ 935, 937, 941, 947; Dec. Dig. 315.] Report from Supreme Judicial Court, Norfolk County. Petition by Charles C. Jones against Carlos S. Jones and others to vacate a decree of the probate court. The petition being denied, petioner appealed, and a single justice reversed the decree of the probate court and reported the case. Decree of the probate court re Wm. R. Scharton, of Boston, and Jas. H. Maguire, of Jamaica Plains, for petitioner. Harrison M. Davis, of Boston, for respondent Gardner, Jr., of Duluth, Minn., and Henry W. Dedham Institution for Savings. Jas. E. 2. APPEAL AND ERROR 694(1)-REVIEW-Durant, of Boston, for other respondents. On report from a decree of the single jus- CARROLL, J. This is a petition to vacate 1901. a decree of the probate court of June 19, The will of John Coffin Jones was duly proved and allowed in the probate court for the county of Norfolk, January 11, 1862. The Rev. Laws, c. 137, § 1, authorizes the pro- rest and residue of his estate was given to a bate court to appoint administrators. Chapter trustee, to pay the income to the testator's 640-CONCLUSIVENESS-JURISDICTION-PROBATE COURTS. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes widow during her life, and on her death, to it is not reported and it is not before us; pay to each of his children "when and as they shall arrive at full age his or her share thereof or their heirs respectively." Mrs. Jones, the widow, died June 5, 1900, and thereupon the petitioner became entitled to one-sixth of the fund. He was, at this time, in the Philippine Islands, and did not learn of the death of his mother for many years. After the death of the mother the then trustees, under a decree of the probate court, deposited in the Dedham Institution for Savings, in the name of the judge of probate for the benefit of the petitioner $12,751.94, his share of the fund, and filed the bank book in that court. obviously, we cannot say his conclusion was wrong. See Tucker v. Fisk, 154 Mass. 574, 28 N. E. 1051; Sunter v. Sunter, 190 Mass. 449, 77 N. E. 497; Dickinson v. Todd, 172 Mass. 183, 51 N. E. 976. [3] The petitioner relies on the case of Jochumsen v. Suffolk Savings Bank, 3 Allen, 87, where a decree appointing an administrator over the estate of a living person was de-. clared to be void ab initio; he argues that the decree, directing the payment of the fund to his sons, was void and of no effect from its inception, therefore, not only should it be vacated but the Dedham Institution for Savings which acted in obedience to it should be ordered to restore the money to him. January 18, 1901, Carlos Selby Jones and In the Jochumsen Case the decree was George Herbert Jones presented a petition void, because the probate court assumed a to the probate court reciting that Charles C. power not given it by law. It was not mereJones, the petitioner, died intestate prior to ly a mistaken use of its jurisdiction, it was January 1, 1894, the exact date and place of an assumption of jurisdiction where it had his death being unknown; praying that the none. Rev. Sts., c. 64, § 4, now R. L. c. 137, the sum of $12,751.94 might be paid to them§ 1, gave authority to appoint administrators as "sole heirs at law and distributees of upon the estates of deceased persons and your petitioner." June 19, 1901, a decree was the plaintiff being alive the decree was enentered on said petition which recites, that tirely void. it appeared Charles C. Jones had died some time prior to January 1, 1894, that Carlos Selby and George Herbert Jones were his only children and heirs, and ordering said institution to pay over and transfer to them in equal shares the said amount with any accumulations thereon. [1] This petition to vacate the decree of June 19, 1901, was dismissed in the probate court. On appeal to this court, the single justice on the evidence submitted, which included the testimony of the petitioner Charles C. Jones, found the material facts to be as stated in the petition; he ordered the decree of the probate court to be vacated, and reported the case upon the findings and pleadings. It is well settled that probate courts have the power to correct errors or mistakes in their own decrees, and when a decree is based upon a mistake of fact, as in the decree of the probate court in the case at bar, it should be amended. Waters v. Stickney, 12 Allen, 1, 90 Am. Dec. 122; McCooey v. N. Y., N. H. & H. R. R., 182 Mass. 205, 65 N. E. 62. [2] Inasmuch as this petition to vacate the decree was not brought until November 5, 1913, it is claimed the petitioner is guilty of laches, and for that reason there should be no correction of the decree. The single justice, in finding that all the material facts of the petition were true, found the petitioner did not learn of his mother's death, nor of the petition of his sons, until many years thereafter; that he was unable to come to Massachusetts or to prove his identity without coming to Massachusetts; that he used all due diligence in bringing this petition after learning of the proceedings and the decree. The single justice heard the evidence, 112 N.E.-15 In the case at bar, there was a fund over which the probate court of Norfolk county had jurisdiction. It came under its jurisdiction by the father's will; and under R. L. c. 150, §§ 23-26, after the mother died it had the duty of preserving and distributing it to the rightful owners. Because the judge, through error or mistake, ordered payment of the money to those to whom it did not belong, it cannot be argued that he was without jurisdiction. He had jurisdiction over the fund, but he made an erroneous exercise of it, and in such a case the decree can be corrected, but it is not void from the beginning. See R. L. c. 136, § 3. If the decree was one which the court had no power to make, or if there was no authority for the action of the court, there would be force in the plaintiff's contention. Davis v. McGraw, 206 Mass. 294, 92 N. E. 332, 138 Am. St. Rep. 398; O'Herron v. Gray, 168 Mass. 573, 578, 47 N. E. 429, 40 L. R. A. 498, 60 Am. St. Rep. 411. The action of the court in ordering the distribution of the rest and residue of the estate of John Coffin Jones was analogous to a proceeding in rem and the subject-matter, that is to say, the fund comprising a part of his estate, being within the jurisdiction of the court, the court was given authority over its payment, and it was the duty of the bank to pay according to its decree. Pierce v. Prescott, 128 Mass. 140; Loring v. Steineman, 1 Metc. 204; Whitwell v. Bartlett, 211 Mass. 238, 98 N. E. 98; Chase v. Thompson, 153 Mass. 14, 26 N. E. 137. In Cleveland v. Draper, 194 Mass. 118, 80 N. E. 227, where a decree ordered the distribution of an estate to the wrong person, it was held that the court had jurisdiction, So ordered. (223 Mass. 528) TRANSMISSION CO. (Supreme Judicial Court of Massachusetts. April 12, 1916.) Worcester. 1. TELEGRAPHS AND TELEPHONES 8 RIGHT OF WAY DEED-TRESPASS-“EXTRA POLES." and while the decree was amended in part, ing no liability upon the bank for paying it was provided therein, that no liability over the fund as directed by the order of the should be imposed upon the administrator court. who acted in good faith under the decree. Where an heir of a testator, entitled to share in the rest and residue of his estate, through mistake was not named in the de- FOSTER et al. v. CONNECTICUT RIVER cree of distribution, she petitioned to modify the decree so that the executor should be directed to pay her one-eleventh of the rest and residue. In this court it was ordered that the decree be modified, so that payment should be made to the petitioner, and to ten others in equal shares of one-eleventh each; but it was expressly directed in the order for a decree, that the executor should not be required to take further action, nor any liability be imposed upon him, that he should correct the error and establish the petitioner's rights to her share as against the other distributees, and gave to her and the executor such rights against them as would arise from the correction of this error. Harris v. Starkey, 176 Mass. 445, 57 N. E. 698, 79 Am. St. Rep. 322. We think the last two cited cases are de cisive of the case at bar. While the plaintiff's rights to the fund must be established, the Dedham Institution for Savings, which acted in obedience to a decree of the probate court, must be protected from liability for such action. See, also, Crocker v. Crocker, 198 Mass. 401-410, 84 N. E. 476; Tobin v. Larkin, 187 Mass. 279, 282, 72 N. E. 985; Minot v. Purrington, 190 Mass. 336, 340, 77 N. E. 630; Shores v. Hooper, 153 Mass. 228, 26 N. E. 846, 11 L. R. A. 308. [4] The probate court of Norfolk county having jurisdiction over the estate of John Coffin Jones and control of the property which he left in trust, had authority to distribute the same; having this power over the fund, the petitioner was not deprived of his constitutional rights, nor his property taken from him without due process of law, because the court made a wrong decision based on incorrect evidence. See Adams v. Adams, 211 Mass. 198, 97 N. E. 982; Rothschild v. Knight, 176 Mass. 48, 57 N. E. 337; Rothschild v. Knight, 184 U. S. 334, 22 Sup. Ct. 391, 46 L. Ed. 573; Nelson v. Blinn, 197 Mass. 279, 83 N. E. 889, 15 L. R. A. (N. S.) 651, 125 Am. St. Rep. 364, 14 Ann. Cas. 147, where the constitutionality of the Absentee Statute, R. L. c. 144, St. 1904, c. 206, was passed on. Blinn v. Nelson, 222 U. S. 1, 32 Sup. Ct. 1, 56 L. Ed. 65, Ann. Cas. 1913B, 555; Atty. Gen. v. Provident Inst. for Savs., 201 Mass. 23, 86 N. E. 912; Provident Ins. for Savs. v. Malone, 221 U. S. 660, 31 Sup. Ct. 661, 55 L. Ed. 899, 34 L. R. A. (N. S.) 1129. A decree is to be entered reversing the decrees of the probate court of June 19, 1901, and October 21, 1914, and establishing the petitioner's right to the fund drawn from the Dedham Institution for Savings but impos A right of way deed of an easement to erect, repair, and maintain a single or double line of poles or towers and wires strung upon them and from pole to pole and from tower to tower for the transmission of electric currents, with all necessary anchors, guys, and braces, recited that in further consideration the 100 feet of land crossed by the line for a sincompany had paid to the owner $5 for each gle line of poles, and its agreement to pay for any extra poles set on the land at the same electric cables with a pole on the top of each rate, and thereunder it erected towers carrying tower carrying a single line of wire, and below which were telephone wires from tower to tower supported by weights and bars. One of the grantees acknowledged that the lines as erected were satisfactorily located in accordance with his deed, which he thereby ratified. Held, that poles placed between each of two towers and a pole beyond the outside tower 23 or 24 feet high carrying the telephone wires were "extra poles," not authorized by the deed, and constituting a trespass entitling the owner to additional compensation. [Ed. Note. For other cases, see Telegraphs and Telephones, Dec. Dig. 8. For other definitions, see Words and Phrases, First and Second Series, Extra.] 2. PLEADING 236(7) — AMENDMENT-FORM OF REMEDY-DISCRETION. In such case plaintiff could not recover on his action of contract, but, if before the entry of final judgment he moved to amend his action into an action of tort, its disposition would be within the discretion of the superior court. [Ed. Note.-For other cases, Cent. Dig. § 601; Dec. Dig. 236(7).] see Pleading, Exceptions from Superior Court, Worcester County; W. P. Hall, Judge. Action by Edmond E. Foster and others against the Connecticut River Transmission Verdict directed for defendant, Company. and plaintiffs except. Exceptions overruled. J. P. Carney and H. W. Blake, both of Gardner, for plaintiffs. R. Y. Fitzgerald, of Boston, and F. J. Dunn, of Gardner, for defendant. CARROLL, J. This is an action of contract to recover for "extra poles" placed on the plaintiff's land, extending a distance of 2,678 feet. In 1908, the plaintiffs conveyed to the Connecticut River Power Company, the perpetual right and easement to erect a line of poles over their land, the grantee agreeing to pay "five dollars for each one hundred feet of land crossed by the above mentioned pole line." [1] In January or February, 1909, seven steel towers, each about 45 feet high, were For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes erected on the plaintiffs' land. In March or April of the same year, six "electric cables for high voltage" were strung from these towers. Above these cables, on the top of each tower, was a pole; along these poles were strung a single line of wire called the "lightning wire." Below the cables were two telephone wires, strung from tower to tower, and supported by weights and bars. After this work was done, on September 3, 1909, the plaintiffs conveyed to the defendant the right previously conveyed to the Power Company, namely, "the perpetual right and easement to erect, repair, maintain and patrol a single or double line of poles or towers and wires strung upon the same, and from pole to pole and from tower to tower, for the transmission of high or low voltage electric current, with all necessary anchors, guys and braces, to properly support and protect the same, over and across" the land described. The deed contained this stipulation: "In further consideration, the second party has paid to the first party the sum of five dollars for each one hundred feet of land crossed by the above mentioned pole or tower line, for a single line, of poles or towers; and the party of the second part hereby agrees to pay for any extra poles or towers set on the above described properly five dollars for each one hundred feet of land crossed by the wires strung upon the same." * testimony the judge directed a verdict for the defendant. No additional wires, towers or poles have been placed on the land since September, 1909, with the exception of the so-called extra poles, supporting the telephone wires. These telephone wires were in place when the deed of September, 1909, was delivered. The deed does not designate what particular part of the land is to be crossed by either the "single or double lines of poles or towers." By the conveyance creating the easement over the plaintiffs' land, the defendant was given the right to repair and maintain a single line of poles or towers and the wires strung upon the same; and also, a double line of poles or towers and the wires strung upon the same, with the necessary anchors, guys and braces to protect the same. These poles between towers, supporting the wires in place of the weights and bars, are neither "anchors, guys nor braces," as these words are used in the contract; and the construction of this additional pole line is not a repair or maintenance within the terms of the grant. If, in order to support the existing wires, it became necessary to erect an additional line of towers along the line already crossed by the wires, the erection of such towers could not be considered a repair within the language of the deed, even if the towers were intended to take the place of the weights and bars, and were constructed where they formerly had been; nor could such a line of towers come under the designation "anchors, guys and braces," the same construction applies equally to a line of poles, such as the line in question of which the defendant has erected since the de On December 27, 1911, Edmond E. Foster, one of the plaintiffs, executed a release to the defendant in which he acknowledged the "receipt of twenty dollars ($20.00) in full payment for all past and future cutting of wood occasioned by keeping cleared without further payment therefor a strip of land substantially 50 feet in width on either side of the center line of the transmission lines of the Connecticut Riv-livery of the deed in September, 1909. er Transmission Company as now constructed * and for all damages arising from the exercise of the rights to erect, maintain and operate said transmission lines as granted by deed dated September 3, 1909." This release also stipulated: "I further acknowledge that the lines as now erected are satisfactorily located in accordance with said deed which I hereby ratify and confirm." In October, 1914, the defendant placed one chestnut pole between each of the two existing towers, and one pole beyond "the outside tower at each end of the line on said land." These poles were twenty-three or twenty-four feet high, and connected only with the telephone wires at the place where the weights and bars had previously supported them. The plaintiffs contended that these telephone poles were extra poles within the meaning of the deed, and that they are entitled to five dollars for each one hundred feet of land covered by the wires strung upon the same. Edmond E. Foster was the only witness, and at the conclusion of his We assume in favor of the defendant, but do not decide, that the conveyance gave authority to the defendant to string the telephone wires from tower to tower, or that if this right was not given thereby, the plaintiff's acknowledgment in the release of December 27, 1911, "that the lines as now erected are satisfactorily located * ** which I hereby ratify and confirm," was equivalent to an authorization to continue these telephone wires as they were then existing. Notwithstanding this assumption, we think the line of poles erected was not within the intent and purpose of the contract. The contract did not give the defendant the right to construct a second line of towers or poles, merely to carry and support the existing wires; it gave it the right to erect a second or double line of poles or towers for the purpose of carrying an additional line of wires strung upon the same, and from pole to pole and tower to tower. The defendant had the right to erect a second line of wires, and the towers and poles necessary to support and sustain it. The space crossed by the existing single line measured the com |