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515 OIL V. VALVOLINE CO. WINTHROP. Massj 
the in of due care. It was plaintiff because was not the exercise
a in for the whether the conduct plainly question jury plaintiff’s
of in the that a remaining the automobile until he saw train was
did all that prudent man. that to this time he They might say up
If, and expected could be of a of caution. person ordinary care
reflection, as soon as for plaintiff danger, the saw the without time
a him and that realizing that the train a feet of was within few
automobile, collision from the jumped was almost inevitable he
if thinking it best for his and the found that such con- safety, jury
circumstances, in of all they duct was the could reasonable view n not matter using proper decide he was care and it could be ruled as
Hustis, of law that he was careless. v. supra. Griffin
a It was not denied that the of McKean. plaintiff guest was
not, therefore, He was in a owner engaged joint enterprise with the
automobile, of the and by neglect. Peabody not bound his v. was
Haverhill, 277, 279. & Georgetown Railway, Danvers Street 200 Mass.
find no in judge’s We error the as a whole. charge taken
overruled. Exceptions 
Company Winthrop. Oil vs. of Valvoline Inhabitants 
. 3, 10, 1920. April March Suffolk. 1920- 
Htjgg, J., Braley, Crosby, Carroll, Jenney, C. Present: & JJ. 
Way, Municipal Corporations, agents. Public: defect. Tree. Officersand
1915, 145, 5, provisions excepting Under the of St. c. no one a tree or § warden his
trim, deputy may town, highway cut or remove a tree within the limits a a of of
endangers persons lawfully travelling upon but, highway; even if the tree the
danger highway, duty if a tree is a source on such of to travellers the it is the of
to order the town officials the tree warden to trim or to cut down the tree and
carry of the tree warden to out the order.
Failure of town officialsto order the tree to warden cause the removal of a a limb of
public long overhung portion shade tree a which for time so had the travelled of a
highway danger travelling public, as to be a source and of an obstruction to the
give warning way protect and to such to travellers on the as would them while the
order, carrying tree damages warden was out the will render the town for liable
resulting wagon upon highway running from a traveller in a the the into limb.
"Where, healthy fifty years age standing from the trunk of a sound and tree about of
public way the limits of a in a sidewalk within and within six inches the from
limb, healthy roadway, and three feet a also sound and six inches in circumference

VALVOLINE OIL CO. V. 516 WINTHROP. [235 
it leaves the over trunk, where the seven feet above the protrudes roadway
ground, to surface of the such limb be found be a defect in the within may way
c. 1917, the of St. Part 24. 344, IV, § provisions 
IV, 1917, 344, 24, St. c. Part Tout under for caused damages §
it a plaintiff’s wagon to the when struck of a. limb tree permitted
the to over by protrude part defendant the travelled of Hermon
feet from the of the in ground. Street seven surface the Writ
7,1919. City of the of Boston dated Municipal January Court
The found the in by facts who heard the the Mu- judge action
Court are described in the He to nicipal opinion. grant refused
defendant, rulings, for the in by asked substance that the upon
recover, and the the not plaintiff evidence law could and found for
$91.19, in the the of an plaintiff by sum amount agreed upon the
as and parties damages, the to the Divi- reported Appellate case
sion, who ordered that the finding be vacated and that judgment
for the plaintiff be entered defendant. The appealed.
145, 1-5, 1915, as St. c. are follows: §§
1. powers "Section The and imposed duties conferred and
in upon hereby tree wardens towns this act are and by conferred
or imposed charged the officials upon now hereafter with the care
cities, of within the limits of in highway by shade trees the the
cities, of enactment; charters the said other by legislative or by the
cities, of the and upon ordinances said such the city officials as
governments designate shall to charge have of said shade trees
duties, it is power where within their such by to transfer ordinance
or otherwise.
2. "Section- may The tree warden and appoint deputy remove
tree wardens. He and they compensation shall receive such as the
thereof, or, in town determines as default the selectmen allow.
trees, He shall have the and public care control of all shrubs shade
town, in growths and the of a. except those within the limits State
highway, and in except places those or under the public parks open
jurisdiction commissioners, those, of if park the and of requested so
in writing by the park commissioners, and all the shall enforce
trees, provisions of law for and the of preservation such shrubs
growths. He expend shall all for the money appropriated setting
out trees, and maintenance of no such and trees growths, shrubs but
shall be planted within limits of public way ap- the a without the
of warden; proval the tree in and a therefor towns until location

VALVOLINE OIL V. CO. WINTHROP. 517 Mass.]
from the or has been obtained selectmen commissioners, road
been authority has vested in said where commissioners. Regu-
lations, than those made by act, other the of terms this for the
of public him, and preservation shade trees by care made and in
selectmen, the approved by posted and in towns two or more public
and of fines imposing forfeitures not places, more than twenty
case, shall any in one have the force and dollars of effect town by-
or All on the limits of laws. trees within a public way shall be
trees; and when it in shade public appears any proceeding where
of or in ownership rights the the are issue, tree material to the
that, otherwise, from of time or the length boundaries of the high-
certain way by cannot be made or monuments, the records by and
it is that for that reason doubtful whether the tree within be or
of the or highway, public "without the limits is or private property,
shall be within of it be taken to the limits the and to be highway
the contrary until is shown. public property
Except provided “Section 3. as by five, section public shade
cut, removed, shall trimmed or trees not be in whole or in part, by
than the or any person other tree warden his deputy, whether such
is or not the owner of in person is the fee the land on which such
situated, except upon is a in permit tree writing from said tree
warden, they be cut nor shall down or by removed the tree warden
person or deputy public or his other without a a at hearing suitable
and after notice place, time thereof in or posted two more public
in town or and places city upon the the tree at least seven days
and authority after hearing, granted by before such the tree war-
however, therefor; if that the provided, den tree warden shall re-
or a any to or remove issue to permit fuse cut such owner to
or remove such or any growth, tree other damages, cut the if
any, him shall be in by by sustained determined towns the select-
by and in cities the officer or in charge public men officers of the
and shall be or paid by city. Any person shade trees the town
by the of or aggrieved action the said officer or officers selectmen
of charge in the to public cutting, shade trees the trimming, as
tree, or of any removal retention or as to awarded such the amount
him for may the has to same have the if which he damages, any,
sustained, in by county determined the Court for the Superior
situated, or for upon the said is was a petition which tree filed the
in taking ways; the same manner as for the of for land purpose,

OIL CO. V. VALVOLINE WINTHROP. 518 [235
determined, paid by so shall the town or damages, and his be
city.
“ or or grant 4. wardens shall not cut down remove Section Tree
if, of for or removal a shade tree cutting public a the down permit
section, in hearing preceding or a as the public provided at before
in made one or more unless such objection writing by persons, is
or to or is cutting permit approved by or removal cut remove the
mayor. or the selectmen by
no "Section 5. Tree wardens and their but other deputies,
trim, trees, a cut down or person, may, hearing, without remove
half in foot from under one and one inches diameter one the ground,
bushes, and, if by mayor in ordered the and standing highways; and
aldermen, selectmen, surveyor, road or highway commissioners
bushes, if trim or and the shall shall cut down trees same be deemed
obstruct, hinder, endanger, travelling or incommode persons to
in Nothing prevent trimming, thereon. contained this act shall the
any endangers or removal of tree which cutting persons travelling
tree, nor of if any by on a the removal so ordered the highway,
officials, for the of purpose widening highway, the and proper
with and nothing gypsy herein contained shall interfere brown
on under the direction of tail moth as carried the suppression, State
of department agriculture, and the United States except forester
trees, of growths and removal shrubs and that are one cutting the
half or more in diameter one foot from the ground." and one inches
Dearborn, A. for the plaintiff. S.
L. for the defendant. Guptill, C.
an action to for to the damages J. This is recover Crosby, 
of in by top coming the it contact with plaintiff’s wagon caused
Street, of of a growing the limb a tree within the limits Hermon
in on the public way Winthrop. The tree is sidewalk.
from point "twenty-six The street at that is feet wide curb to
and forty curb feet wide from sidewalk to sidewalk." The outer
of of edge roadway, the trunk of the tree within six inches the is
limb in portion question over which no of the trunk extends. The
roadway and from the trunk about seven grows reaches over the
of trunk at its base from the ground. feet the The circumference
inches, trunk, at the is six feet four and of the limb approximately
old, The and at the fifty years three feet six inches. tree is about
sound, condition, of in the healthy including time the accident was

OIL V. VALVOLINE CO. 519 Massj WINTHROP. 
by in “It is not that the question. limb claimed the defendant
officials,” . . . set out a road by by public tree was commissioner or
525, Easton, in accordingly the decision Washburn Mass. v. 172
It notified the applicable. agreed plaintiff duly not is that the is
time, of the place defendant and of the cause accident.
to relating public The laws and shade trees were codified
1915, by amended St. c. 145. Under that statute all trees within
highway limits of a public the are trees. 2. shade § ^ 5, in Except provided public as shade trees shall not be trimmed §
in in the tree part by any person nor removed whole or other than
a from the permit writing or his in deputy, except upon warden
warden, the tree they by nor nor removed tree shall be cut down
hearing a deputy person public or his or other without warden
and after author- posted prescribed by after notices as the statute
5, by by if ordered ity granted the tree warden therefor. Under §
aldermen, selectmen, or high- the mayor and road commissioners
or way surveyor, duty it the of the tree to trim cut down is warden
obstruct, they endanger, and if to trees bushes shall be deemed
It is persons travelling hinder or incommode on the highway.
5, further in that contained in this act shall provided “Nothing §
trimming, the of tree en- prevent cutting any or removal which
of 5 persons travelling part on a ...” The dangers highway. §
officials authorizing public cannot as quoted, last be construed
or a deputies other than tree and their to trim remove wardens
care, a on The endangers persons travelling highway. tree which
maintenance, in trimming highways and removal of shade trees
years, for and subject legislative have been the of action several
and of the control is in the tree wardens in cities towns their vested
Commonwealth, on other officials except far it imposed so as is
enactment, or cities, by the of by by legislative charters other
cities, city govern- the the ordinances of or such officials as upon
legislation of the designate ment for that The result purpose. shall
of entire control subject on this has been to the place practically
in little, authority if wardens, any, in trees tree and to leave such
that (§5) provides municipal other officers. the statute While t or removal cutting in the nothing prevent trimming, the act shall
this highway, a endangers travelling upon of a tree persons that
sections in connection with other language must be construed
in statute, language ques- 3. construe the including We of the §

OIL CO. V. 520 VALVOLINE WINTHBOP. [235
mean, persons to that if a a endangers travelling tian tree upon
trimmed, cut, or highway may be removed or by it a tree warden
hearing, his and but no deputy without notice other is person
to empowered so act.
It the follows that officials named in 5 order may the tree §
or a if they to cut down tree it warden trim believe endangers,
travelling on persons hinders or incommodes the it highway, and
to duty carry is the of the tree warden out order given; the so
of the the named is to power but officials limited to ordering it
by be removed the tree warden. Under earlier it statutes was held
a of had no highways authority summarily that to surveyor cut
a in highway down shade tree the which in standing was a defec-
condition, 52, and dangerous 10, but Pub. c. tive Sts. as under §
123, 2, 1885, amended c. he by required proceed St. was to to ob- §
authorities, the of municipal tain consent proper the meanwhile
taking to proper steps injury to travellers. prevent Chase v.
Lowell, 149 Mass. 85.
In the at bar case there was evidence that of the limb the tree
an to was obstruction travel and that such condition had existed
a long for Under time. these circumstances it the a duty was of
named to town official under 5 order the tree trimmed or re-' §
moved, and in the meantime the was to required town do what
reasonably necessary protect to travellers from injury. was Chase
Lowell, Chelsea, 460, 422. Wright v. 151 Mass. v. Mass. 207 465.
561, 211 Newbury- port, Donohue Mass. 565. Although a tree v.
only is trim or may warden the officialwho remove shade a trees in
does a or highway, city that circumstance not relieve town from
of statutory duty reasonably the its keeping highways safe and
51, L. 1. convenient for R. c. was travellers. There evidence §
of plaintiff that the in the due was travelling while exercise care
a proper wagon in came in the which contact with limb that
in the course of the of grown part time had over travelled the
way so near the that surface of the street it could be found to
an be to In persons travelling obstruction thereon. these cn>
limb cumstances the could be be a it found to defect which was
duty the of town remedy. many the to While have been con- cases
by involving sidered court to on a injuries high- this travellers
way by standing way, caused trees within the of the limits most
of them of have arisen decayed because the condition of such

V. JACOT. 521 MASON Mass.]
265, trees, River, Chelsea, v. Fall 183 Mass. v. Wright supra, Nestor
supra, v. we are of that Newburyport, yet opinion Donohue there
the of a or liability city is no distinction between town sound
guard against by for to defects caused within the limits failure trees
which, and al- highway of a which are old and those decayed,
sound, in of time a condition of a though course cause defective
in by growth. the state or of a highway Anything high- condition
for way renders it is a or ordinary which unsafe travel defect
Allen, of 11 v. repair. Roxbury, Maccarty want Barber v. 318.
Brookline, Lowell, 422. Mass. 527. v. 151 Mass. Chase 114 Griffin
Boston, Chelsea, v. v. 182 Mass. v. Donohue Wright 409. supra.
Walkill, v. Newburyport, N. 222. Louisville supra. Embler 132 Y.
Michels, v. Ky. 114 Shaw 551. See v. 214 Mass. 475. Ogden,
It have had could been found that the defendant such means
of knowledge as would it of charge with the either order- duty
removed, ing the tree or warning trimmed or or of giving otherwise
that, so, protecting travellers from and failed to do injury, having
Chelsea, it liable. O’Neil v. was 208 If it be Mass. 307. assumed
that the town officials by 5 to order the tree trimmed § authorized
or public removed are for the negligence officers whose defendant
responsible, not is that wilí the circumstance not relieve defendant
liability from on under statute which is its failure to" the founded
the keep street for reasonably safe travel.
reversed, It follows that the of the is Appellate order Division
and, in of agreement judgment accordance with is to parties, the
for $91.19. be entered in of plaintiff the the sum
So ordered. 
Emma L. vs. Paul H. Mason Jacot & another. 
. 3, 17, Suffolk. May December 1919- 1920.
Rtjgg, J., Braley, DeCourcy, Crosby, Pierce, C. Carroll, Present:
Jenney, & JJ.
Scope authority. Agency, of Malicious Prosecution. Evidence. Proximate
Practice, Civil, Cause. Order of evidence.
by against proprietor the trial of an action a woman the At hotel of a and restaurant
prosecution, was warranting finding malicious there for evidence a that the