Newburyport to meet the other car of the line somewhere beyond the regular place of meeting. He knew that the car which he was to meet was late and would be likely to be running rapidly. He had no reason to suppose that the conductor or motorman of this car would be expecting to meet his car elsewhere than at the regular meeting place near the middle of the line; he knew that there was no telephonic communication from Haverhill, whence his orders came, to points along the line or to the terminus at Newburyport, although there was a telephonic line to the office of another street railway company in Newburyport about six hundred or a thousand feet from the terminus of the defendant's railway. He had no reason to suppose that any orders had been given to the conductor or motorman of the other car to run their car differently from usual, or to stop before reaching the usual place. He knew that the set-back car had been sent back to meet his car without any reason on his part to expect its coming, and the natural inference would be that his car was to go back to meet the other car of the regular line while the motorman of that car supposed that his car was running over the whole line as usual. The view most favorable to the plaintiff's intestate is that he thought it possible that the superintendent had telephoned to the office of the other company in Newburyport, and had caused an order to be given to the conductor or motorman of the other car to stop at number three turnout, which is next easterly of the regular turnout at the middle of the line. He certainly had no assurance or information of this, and it would seem that he had little, if any, reason to think that such an order had been given. Indeed, there was uncontradicted evidence that on two previous occasions he had gone forward, apparently without orders, beyond the middle turnout on the road to Haverhill, and had met the other car not far from the place where this accident happened. Under these circumstances it was the duty of the plaintiff's intestate after he passed the middle turnout, as it had previously been the duty of the motorman of the set-back car, to run his car very carefully, and, except in places where the road was visible for a long distance before him, very slowly. It was in the daytime, and doubtless in many places he could see along the road far enough to enable him to run the car safely at its usual speed; but in

those places where his view was obstructed he should have proceeded cautiously, watching constantly to see if the other car was approaching. The failure to do this would be negligence which would prevent a recovery in this action.

The burden of proof was on the plaintiff to show that her intestate was using due care, and she introduced no evidence to sustain this burden. All that appears in the bill of exceptions which refers to his conduct after passing the usual meeting place is contained in the sentence, "A head-on collision of considerable force ensued, although the motormen of both cars endeavored to check their speed." How near together the cars were before the motormen tried to check their speed does not appear. There is nothing to show that the plaintiff's intestate was not running his car rapidly, or that he was taking any precautions in reference to the probability or possibility of meeting the other car. It does appear that he was going down a steep hill, and that a light snow had begun to fall, making the rails slippery. These facts increased the importance of using special care. The most natural inference from the facts and evidence stated in the bill of exceptions is that he was running his car at a high rate of speed until the other car was close upon him. There is not a word in the bill of exceptions which tends to show that, immediately before he tried to stop his car, he was exercising any care in reference to the known risk of a collision.

Exceptions overruled.

LOUISE SEARS vs. S. R. MERRICK & another, executors. ANDREW T. SEARS vs. SAME.

Worcester. October 3, 1899. - December 6, 1899.

Present: HOLMES, C. J., KNOWLTON, LATHROP, BARKER, & LORING, JJ.

Personal Injuries — Unsafe Condition of Premises fitted for Use of Public Liability of Owner-Action.

The front line of a building situated at the corner of A. Street and B. Street, which ran at right angles to each other, in the business section of a town, was set back from each street line. The whole space from the face of the building to the curbing of the sidewalk on each street was covered with concrete and presented

a uniform appearance, there being nothing to distinguish the part maintained by the town from the part owned and maintained by the owner of the building, and both parts were used openly and freely for public travel. The only exception to the uniformity of appearance was that on B. Street, a short distance from the corner of the building, there being a difference in grade in the concreted area, which terminated abruptly, a retaining wall separating the two grades was built two feet high where it began on the face of the building and ran about seven feet until it met the grade of the sidewalk, where it ended, and it had no fence or guard. A woman, who, on a dark night, had been transacting business at a store in a building owned and controlled by the defendant, the entrance to which was on A. Street, and who was unfamiliar with the premises, after leaving the building, proceeded along the concreted area on A. Street to the corner, and then round the corner on the concreted area on B. Street, stepped over the wall at a point about six feet from the building and within the part maintained by the owner, and fell, receiving injuries. Held, that she could maintain an action against the owner of the building for her injury.

TWO ACTIONS OF TORT, the first being for personal injuries sustained by the plaintiff upon premises of the defendants' intestate in Clinton, which are shown on the plan printed below;

and the second being for loss of the society and services of the plaintiff's wife, and for expenses incurred by him, owing to the injury sued for in the first case. The cases were tried together in the Superior Court, before Braley, J., who ruled that the plaintiffs were not entitled to recover; directed the jury to return a verdict for the defendant in each case; and, at the request of the plaintiffs, reported the case for the determination of this court. If the ruling was right, judgment was to be entered on the verdicts; otherwise, judgment was to be entered for the plaintiff in each case, and the cases were to stand for the assessment of damages. The facts appear in the opinion.

J. W. Corcoran, for the plaintiffs.

W. A. Gile & J. Smith, for the defendants.

LORING, J. The defendants' testatrix owned a building, called the Brimhall block, situated on the corner of High and Church Streets, in the town of Clinton; these streets run at right angles to each other, High Street running north and south, and Church Street east and west. The front line of the building on each street was set back from the street line; the whole space from the face of the building to the curbing of the sidewalk was covered with concrete, and presented a uniform appearance, except for the bank or retaining wall just round the corner on Church Street, hereinafter described. On High Street the building was set back fifteen and thirty-four one-hundredths feet, the whole sidewalk being but one foot wider. On Church Street it was set back at the easterly end eleven and seventy-one one-hundredths feet, and at the westerly end ten and twenty-seven one-hundredths feet, the sidewalk outside of the defendants' concreted area being seven and ninety-one one-hundredths feet in width; that is to say, on High Street the whole sidewalk, including the defendants' concreted area and that within the side line of the street, was in round figures sixteen and one half feet wide, of which the defendants' concreted area was fifteen and one half feet, and the town's area was one foot; and on Church Street the whole sidewalk was twenty feet in width, of which the defendants' area was twelve feet, and the town's eight feet.

It is expressly found in the report that at the time of the accident the premises where the accident occurred were owned

and controlled by the defendants' testatrix; that the area in front of her building on High Street, fifteen and one half feet wide, was "wrought and prepared," and that in front of her building on Church Street, twelve feet wide, was "prepared and maintained," by her; that the sidewalks on both streets, throughout their entire width, were covered with concrete, and presented a uniform appearance, there being nothing to distinguish the part maintained by the town from the part prepared by the defendants' testatrix, and both parts were used openly and freely for public travel.

The corner of the defendants' building at the junction of the two streets was rounded so as to admit of a window being placed in the round corner wall so made. There is a sharp descent in the grade of the High Street sidewalk, beginning at a point on the face of the defendants' building on High Street, a few feet north of the beginning of the rounded corner, and running thence across the concreted area to the southerly curbstone of the sidewalk of Church Street. Church Street also descends rapidly going west from High Street. The grade of the concreted area next the face of the building on Church Street is lower than the concreted area at the corner of the street; this difference in grade terminates abruptly at the point on Church Street where the curve of the round corner of the building begins. At that point the defendants' concreted area on Church Street is two feet lower than the defendants' concreted area on the round corner of the building; the two are separated by a bank or retaining wall, which is two feet high where it begins on the face of Brimhall block, and which runs. southerly toward the south curb of the Church Street sidewalk a distance of six and ninety one-hundredths feet, where it meets the grade of the sidewalk and ends. There was no fence or guard of any kind on this retaining wall.

About eight o'clock in the evening on February 2, 1897, the plaintiff in the first case, with her husband, who was the plaintiff in the second case, came to Clinton for the first time. They went to the store of Lucius Field and Company, in Brimhall block, on business; the door of this store is on High Street, about forty-seven feet north from the corner of Church Street. On leaving this store they proceeded to walk to a building on