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Williams 0. Grealy.

ran out of the yard on to the highway, and there ran against the plaintiff. There was some evidence tending to show that the horse had been frightened by the noise of escaping steam from an engine, which was not within sight of the horse, (a building of at least eighteen feet in height being between it and the horse,) and that the horse turned suddenly round at the timo this noise was made, and ran; that when he turned to run, the defendant and a servant of his were unloading bales from the other wagon, and were at the side of the wagon attached to the horse which ran away, and within eight feet of the horse at the time he turned to run.

There was also some evidence tending to show that the horse had been used very little before the time of the accident. The defendant and his servant pursued the horse immediately after it started to run away. The gateway was in full view of the point from which the plaintiff commenced crossing the street, and was at least two hundred feet distant from it. The street itself, between the curbstones on each side, was only about twentyeight feet wide. The plaintiff came in contact with the horse after crossing to within four feet of the curbstone on the side to which she was crossing.

The plaintiff testified that she was injured while crossing the street, but did not know by what means, and offered no direct evidence, in terms, that she looked up or down the street before attempting to cross, or that she took any view of the street to see if there were any horses or vehicles on the street moving towards her. Several witnesses testified to having been in the street at the time, some to seeing the plaintiff before, some at the time, and some after she was struck by the horse, and each tes. tified to what he saw of the plaintiff and of the horse. The plaintiff remained unconscious several hours after the injury. There was uncontradicted evidence that, after she had received the injury, she told one of the witnesses that she took no notice, and did not look to see if anything was coming towards her.

The judge, in instructing the jury, stated that in the matter in issue the plaintiff was bound to exercise “ reasonable and explained the meaning of reasonable, in a way to which os exception was taken.

care.

Williams 0. Grealy.

The counsel for the defendant requested the court to instruct the jury: 1. That as the plaintiff had not offered any evidence tending to show she was using due care at the time she received the injury, she was not entitled to recover. 2. That if the jury found that the noise made by the engine caused the horse to run, then the plaintiff was not entitled to recover. These rulings the presiding judge refused to give. If either of them should have been given, a new trial was to be granted.

No question was made at the trial, and no instruction was asked 1pon the question whether, as matter of law, the conduct of the lefendant showed proper care. The presiding judge, however, leemed the question of sufficient importance to reserve it. If, as gatter of law, it was due care on the part of the defendant to ieave the horse in the angle formed by the horse and wagon on one side and the freight-house on the other, (assuming the horse to be one that is safe under ordinary circumstances, and accustomed to stand without tying,) a new trial was to be granted ; and if it was a material question whether such a horse, by reason of the fact that he had been for some time unused, or was in an unaccustomed harness or vehicle, required a different and higher degree of care, this question was to be open to the jury upon the new trial.

C. F. Donnelly, for the defendant.
W. A. Munroe, for the plaintiff.

CHAPMAN, C. J. The question is reserved whether the judge erred in refusing to instruct the jury that there was no evidence tending to show that the plaintiff was using due care at the time she received the injury, and is not entitled to recover. crossing Leverett Street, which was but twenty-eight feet wide, at the corner of Brighton Street, on her way to a bakery, and was within four feet of the curbstone when the defendant's runaway horse, attached to a light wagon, ran against her with great speed and injured her. The judge instructed the jury that she was bound to exercise reasonable care, and sufficiently explained the meaning of the term reasonable. His instructions were not excepted to. The report does not state her situation, circumstances or conduct except that she was a witness, and testified that she VOL. XVI.

6

She was

Williams v. Grealy.

or

was injured while crossing the street, but did not know by what means; that she offered no direct evidence that she looked

up down the street before attempting to cross, or that she took any view of the street to see if there were any horses or vehicles in the street moving towards her. She remained unconscious for several hours after the injury. There was evidence that she said after the injury that she took no notice, and did not look to see if anything was coming towards her. This part of the evidence seems to be stated with a view to raise the question whether these negative facts are not conclusive proof of negligence, but we are left in ignorance of what was proved as to what oth-er objects were in the street, or whether the horse could have been seen by her, or what was her manner of crossing the street, although it appears that other witnesses testified to having been in the street at the time, some seeing the plaintiff before, some at the time, and some after she was struck by the horse, and each testified to what he saw of the plaintiff and the horse. But the mere fact of not looking when one attempts to cross a railroad is not conclusive evidence of want

Chaffee v. Boston f Lowell Railroad Co. 104 Mass. 108. Much less is it so in crossing a street; and in the absence of all evidence of the circumstances, we can see no error in the refusal of the judge to rule as requested.

The question whether, as matter of law, it was due care on the part of the defendant to leave the horse where he was left unfast-ned, under the circumstances, which are stated at great length in the report, was a question of fact which was properly submit. ted to the jury, and it would have been improper to rule that, as matter of law, the defendant used due care.

Judgment on the verdict,

of care.

Amory v. Melvin.

CHARLES AMORY & others vs. JAMES S. MELVIN & another.

SAME v8. ROBERT BACON & another.

If the lessee of a part of a building covenants with ihe lessor that he will pay the taxes

which may be payable or assessed in respect of the premises, the lessor may prove a usag ? to apperson the taxes among the different tenants according to the amount of rent

paid by each. Under a lease which expired on the first of July, 1870, and in which the lessee covenanted

that he would pay the taxes which might be payable or assessed in respect of the premises during the term, the lessee is liable to pay the taxes for the year 1870, although the assessors did not complete their valuation and determine the rate of taxation till August; the tax being in law regarded as assessed upon the first of May.

ACTIONS OF CONTRACT to recover the taxes assessed on the first of May, 1870, upon the premises occupied by the defendants as tenants of the plaintiffs under leases containing covenants that the “ lessees .... will during the said term .... pay to the said lessors .... all taxes .... which may be payable or assessed in respect of the premises or any part thereof during said term.“ The cases were tried in the Superior Court, before Brigham, C. J., without a jury, when the following facts appeared :

The defendants entered into the contracts of lease declared on in the respective declarations, and occupied the premises described in the leases, until July 1, 1870, paying rent and taxes according to the terms of the leases, excepting the taxes sought to be recovered in these actions, of which they had notice, and which they refused to pay.

Tle premises described in the leases were part of a building styled Amory Hall, which, with the land upon which it stood, was valued by the city of Boston, for the purposes of taxation for the year 1870, and as of May 1, 1870, at the sum of $182,000, and the taxes for the year 1870, assessed upon the same, was at the rate of $15.30 per $1,000 and amounted to the sum of $2781.60, which was paid by the plaintiffs in October, 1870.

The plaintiffs sougļıt to recover of Melvin & Badger, the defendants in the first suit, the sum of $513.09, a sum bearing the same proportion to the tax assessed upon Amory Hall (82781.60) as the rent reserved under their lease, $2500, (01

Amory o. Melvin.

83043.09, adding taxes treated as rent,) bore to the sum of the whole rents of Amory Hall for the year 1870, $13,800.00 (or $15,603.46, adding taxes treated as rent); and they sought to recover of R. & T. C. Bacon, the defendants in the second suit, the sum of $651.71, a sum in like manner bearing the same proportion to the tax assessed upon Amory Hall as the rent reBerved under their lease bore to the whole rent, in accordance with the statement following: Tenants.

Rents Proper. Entire Rents. Apportionment of I wen Walker, $ 410.75 and taxes. $500.00

$89.23 R. & T. C. Bacon, 3,000

3,651.85

651.71 Melvin & Badger, 2,500

3,043.21

543.09 Gross & Strauss, 2,800

3,408.40

608.27 Gross & Strauss, 2,500

3,000.00

535.38 Currier, 1,700

2,000.00

356.92

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Apportionment of taxes among the different tenants of the same estate was, by usage, made in the mode adopted by the plaintiffs in this case; and the defendants, during their occupation under the leases, had, on previous occasions, paid taxes on the leased premises, apportioned as in the present case ; but there was no evidence that when the defendants thus paid taxes, the mode of apportioning the same was disclosed to them, or was in question between them and the plaintiffs. The evidence of this usage was admitted against the objection and subject to the exception of the defendants. The valuation for taxation and assessment of taxes, made upon Amory Hall for the year 1870, was in the mode customary in the city of Boston, as follows: one or more assistant assessors, to whom were assigned specific districts, inspected estates, and estimated their value for the purposes of taxation, and reported their estimate, &c., to the board of assessors, and thus the whole valuation of the city was obtained and reported, having reference to values on May 1, 1870, and the valuations thus obtained were completed and recorded on August 9, 1870, and on August 23, 1870, the rate of taxation was fixed.

The Amory Hall premises included a small yard, of which some of the tenants, but not all of them, during the defendants

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