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WILLIAMS V. 581 WINTHROP. Mass.]
fact, by permission. Dyer Swift, See v. way that the was used
Rockwell, 159; 156 Mass. 372. It cannot be 154 Mass. Simes v.
wrongly was admitted. said therefore that the evidence
Exceptions overruled.
him,) Goldman, (C. Barney plaintiff. N. with for the C. J.
defendants, Worth, was not called upon. the H. B. for 
Winthrop. vs. of D. Williams Inhabitants Jennie
— 11, 25, February November 1912. 1913. Suffolk. 
Braley, Sheldon, Hammond, Loring, Rugg, J., & JJ. Present: C.
Civil, Practice, highway. Way, Negligence, In Conduct defect. use of Public:
instructions, Evidence, Competency. Exceptions. requests and of trial:
injuries alleged by personal against for action a a town the trial of an woman At
where, way, by public as to in a besides evidence caused a defect to have been
conditions, year, of precedent amount and character weather the season of the
circumstances, tending to show there is evidence and other attendant travel
driver, way experienced driving in plaintiff, a team on the an was that as the
street, intersecting turning at the street question into an she looked and was
defect, carriage nothing that the the to indicate a and ahead and saw on surface
depressions, tip one of her it ran into two to and throw out because was caused
them, ques- deep, a mound between the or more inches with was six which
tions, plaintiff care the in the exercise of due and whether whether the was
by way, jury. the a defect in the are for accident was caused
injuries against an a for at the trial of action town close of the evidence At the
way, presented by public alleged a in a the defendant have caused defect to been
twenty-two requests rulings, to the effect that the for three of which were
proof plaintiff care and of notice on the on the issues of his due of was burden
specific charge to the The made no reference of the defect. to the defendant
dispute proof, in that the several issues question of but stated of the burden
plaintiff a for him could be in favor of the before verdict established must be
charge might that in other language the it be inferred the of From returned.
given jurors previously full instructions had been tried the same before cases
charge proof. de- respecting At the close of the the the burden of to them
requests exceptions to that had been that be noted as counsel asked fendant’s
relating to denied, of the law of which contained correct statements several
husband, by and that he usually the management the household exercised of
the moving of improvements premises, such as the on the certain directed
roadside, things about the house generally and did those cottage from the back
by usually the husband of an owner.” lot done and

V. 582 WILLIAMS WTNTHROP. [213 
proof. judge replied, They of principally the burden The "Yes. are that
evidence,” that, replied, Held, no and there is the defendant’s counsel “Yes.”
although touching the defendant was entitled to full and accurate instructions
proof, exceptions of the burden grant the matter of the to the failure the to
question overruled, requests duty in must be because it was the of the defen-
counsel, specific desired, if dant’s such instructions were to call them to the
judge attention of the charge, permit judge at the close of the and not to the
requests only any to think that the related to whether there was evidence
jury. which should be submitted to the
against personal injuries At the trial of an action a alleged town for to have been
by depressions public way, sustained of in carriage reason a which caused the
plaintiff tip out, previous days of the to and throw him evidence that on
wagons go up tip other had been to place seen and down and at the same is
purpose showing way inadmissible for the prove of a defect in or the to notice
of the defect to the defendant.
Tort for personal injuries alleged to have been by suffered the
7, 1902, plaintiff August on by reason of a defect at or near the
intersection of Street, Hutchinson Street and Revere public ways
defendant, of the and to have by been caused depressions which
caused a that carriage the plaintiff was to driving tip, throwing
18, out the plaintiff. Writ dated August 1902.
Superior In the Court Harris, the case was tried before J.
The material facts are stated in the opinion. There was a verdict
$2,500. plaintiff for the in the sum of The defendant alleged
which, exceptions, Harris, J., after the of resignation were allowed
by Jenney, J.
(K. J. B. Studley, him,) McLeod with for the defendant.
Anderson, (J. E. R. him,) G. Bryer with for the plaintiff. 
Rttgg, C. J. This an is action of tort to recover compensation
for received an injuries through alleged defect in a public way
the plaintiff which was a traveller. upon
1. There was evidence to tending show that the plaintiff was
driver, experienced an and that as she turned her horse from one
to another looking ahead, street she was at the street and saw
about the surface of nothing the street to a indicate defect. It
determine, jury was for the to this upon evidence and upon all
circumstances, the as men of common experience, whether the
Bolton, was in the exercise of due care. plaintiff Thompson v.
Boston, 522, Stoliker v. 197 Mass. 311. 204 Mass. 534. v. Cutting
Shelburne, 193 Mass. 1.
tending 2. There was evidence to show that there were two de-
holes, by in the street described some witnesses pressions as one of

V. WILLIAMS WINTHROP. 583 Mass.]
more with a mound It was deep, was six or inches between. which
defect, a into account say taking the to whether this was jury for
conditions, the of year, precedent of the weather amount the season
street, all other attendant the and the conditions. upon travel
evidence, of the defendant presented 3. At the close the
instructions, for three of which were to the twenty-two requests
upon plaintiff of was the to establish proof effect that the burden
care, and that in the exercise of due the defendant that she was
repaired have the defect. At the close of had notice of and should
the that exceptions the the counsel for defendant asked be charge
denied, that had been to which noted to the requests presiding
said, are that there is no They principally “Yes. evidence.” judge
“Yes, sir,” To counsel and replied, this the defendant’s the judge
said, “I the your exception.” Although charge will save made
no reference to the burden of it specific proof, correctly stated
and that the before could plainly jury, they return a verdict
for plaintiff, the must find the various facts necessary to make
defendant, liability out on the of the and part that the several
in in dispute issues must be established favor of plaintiff. the
It apparent is also from the that charge jury the had tried
circumstances, other tort before this cases one. Under these
if the defendant’s counsel had a specific desired upon instruction
an elementary principle such as the burden of proof, he should
have called it more than did to pointedly he the attention of the
at the close of the It is fair judge charge. to infer that at some
previous time full instructions had been to given jury the respect-
ing the burden of which it not proof, thought necessary was to
repeat every in case. Of each to a party course cause is entitled
to have full given and accurate instructions touching every point
involved. But the the charge gives impression that the nature of
the burden of to proof explained jury, had been the that they and
were with it. The at the acquainted colloquy charge close of the
only shows that the matter in the mind of the judge as to which
he had not instructed in accordance with the of the requests
defendant was that case, to the essence of the going plaintiff’s and
effect, to that requests of which there were a considerable num-
ber', circumstances, were refused. Under these if the defendant
had a upon desired definite instruction the proof, burden of it
was his to call it duty directly to the attention of the judge, and

V. WILLIAMS 584 WINTHBOP. [213
not to his to by assenting interrogatory, the effect that the re-
point fusals related to the that there principally was no evidence
to go on which the could the plaintiff jury, lead the court to
think on. that else was relied nothing
accident, A lived near the place 4. witness who of called the by
testify, to plaintiff permitted against was the objection and excep-
defendant, tion of the that between the of day the accident and the
Sunday she had observed that "If preceding an express or wagon
way they team would come that grocery would always down and go
down and some jump up go and came again, around with one wheel
in the air.” The judge admitted this as tending to prove notice
to the It plain defendant. is that such evidence is not admissible
for the of in purpose a defect the showing way. This has been
many decided too times to more require than a reference to one
Dorchester, or two Collins v. authorities. 6 Cush. 396. Marvin v.
Bedford, New is, 158 Mass. 464. The of question difficulty was it
on admissible the issue whether the or, defendant “had by the
of proper exercise care and diligence, might have had reasonable
notice of the (R. 51, defect or want of repair” 18) L. c. in the §
Way. Generally in this Commonwealth evidence of this character
has been excluded. We are aware of no instance heretofore in
it has been against Newton, admitted In objection. Yorev. which
250, 194 Mass. evidence of like character held was to have been
excluded and properly it was said that it have might been done in
the exercise of judicial discretion. But that case is no authority
for proposition the that such evidence is or competent that it
may be any admitted under circumstances.
Such evidence has been held in other cases to properly have been
on rejected, the of collateral issues. Merrill v. ground raising
Bradford, Pelham, 110 Mass. 505. Blair v. 118 Mass. 420. In
Dunstable, 342, Kidder v. 11 it was said: “In action Gray, an for
injury of by alleged sustained in a reason an defect highway,
therein, admissible, evidence is not either that a not a person, party
action, to the at injury place, safely has received an the same or has
passed over it.” treat the matter as a positive These cases rule
of law. Even if as regarded it were to be matter of judicial
discretion, it unfortunate if the would be discretion were “not
way exercised in the under the same same circumstances.” Sar-
Merrimac, 171, v. gent 196 Mass. 175. No will befall hardship

DAY V. MILLS. 585 Mass.]
a plaintiff because notice or ground reasonable to infer notice to
a municipality highway commonly of a defect in a susceptible is
ready by of proof Northfield, other evidence. Reed v. 94. 13 Pick.
Lowell, Chase v. 151 Mass. 422. Under these circumstances we
think it better to adhere to that has which been declared and
Commonwealth, understood generally to be the law of and this
hold such that evidence is inadmissible.
sustained. Exceptions 
Epaphro Day A. vs. L. Melissa Mills.
11, 25, Hampden. —February November 1912. 1913. 
Rugg, J., Hammond, Losing, Bbaley, Sheldon, Present: C. & JJ.
Pleading Practice, Equity review, Decree, Appeal, Review. and Petition for
Supreme Court, Rescript. Order for decree. Judicial
judge Superior Court, a hearing petition of the after a for a of final de- review a if
equity, in cree a suit in allegations petition, finds facts to adverse of the the
findings open by upon appeal petitioner. such are not to revision an the
equity Superior redemption In a suit in in the for of Court the certain land from a
mortgage, entered, a directing convey final decree was the to defendant the
plaintiff discharged land mortgage pay to the from and the to to him a certain
accounting land, amount found an occupation due on for and and use of the
awarding party. to appealed. costs neither rescript The defendant A was sent
by directing this court by giving that the final decree be modified to the defend-
costs, ant and judge that the decree as modified A thus was to stand. of the
Superior Court, by plaintiff, by on a adding motion the amended the final decree
paid plaintiff to the sum to be to the an and additional sum for further use occu-
pation by Held, previous of land the the defendant since the the decree. that
rescript decree, decree, of this court was not a but an order for a and was that
Court, Superior 173, 48, the power under R. L. § c. had so to amend the former
disposition decree to as determine as of the date of final of the the ob- the suit
ligations plaintiff of the defendant the in in to the matter involved the suit.
Rugg, C. J. This is a a petition by for review of judgment
of way final decree obtained against petitioner the the by respond-
ent in a suit in equity by brought plaintiff the latter as to redeem
land from a mortgage held by present the in petitioner, defendant
the suit. equity The suit was equity upon heard its before merits
master, a and upon an and by additional issue the subsequent