likely to mislead the jury in reaching its ordered a citation issued, returnable the 30th verdict. The second exception of the defendant is overruled. The other exceptions of the defendant are sustained. The case is remitted to the superior court for a new trial. SANTANGINI v. BLISS. (Supreme Court of Rhode Island. 1912.) EXECUTION (§ 451*) - DISCHARGE OF POOR DEBTORS. day of April, A. D. 1912, at 9 o'clock a. m., at the district court of the Sixth judicial district, in said Providence, and caused the said Andrea Santangini, the creditor at whose suit the said defendants were committed to jail, then and there to appear to show cause, if any he had, why said defendants should not be admitted to take the poor debtor's oath as prayed for. And your petitioner May 14, further avers that on the said 30th day of April, A. D. 1912, at 9 o'clock in the forenoon, the said petitions were heard by the said justice of the district court of the Sixth judicial district, and the said justice of the district court then and there denied and refused the said petitions, and the said Sabastiano De Gasbarro and Teresa Di Ciccio were then and there recommitted to the said Providence county jail. And your petitioner further avers that at the time of the hearing before the said justice of the district court of the Sixth judicial district the said Sabastiano De Gasbarro and Teresa Di Ciccio then Where debtors took out a citation to their committing creditor, and their petition was denied because they had disposed of their property in fraud of their creditors, they were not entitled to a second citation, where the only change of circumstances alleged was the making of a common-law assignment for the benefit of creditors, and it did not appear that the assignee had obtained control of the property fraudulently disposed of, or of any other prop erty. [Ed. Note. For other cases, see Execution, Cent. Dig. §§ 1306-1361; Dec. Dig. § 451.*] Petition for writ of prohibition by Andrea Santangini against George N. Bliss. Petition granted. and there made and executed an assignment of all their estate, of every kind and whereever same may be situated, excepting what is exempted from attachment by law, to one The petition for writ of prohibition herein James McCusker, warden of the Providence is as follows: "To the Honorable Supreme Court: county jail, and produced the same in court, and presented them to the Honorable Justice Rueckert, who was then and there hearing said petitions. ing, amongst other things, as follows: 'And whereas, a change in the circumstances of said petitioners has taken place since said petitioners took out their last citation to said creditor on a like petition, and which petitions were denied, said change of circumstances being this: That said petitioners on, to wit, the 2d day of May, 1912, made, executed and delivered a general assignment of all their property of every kind in trust for the benefit of all their creditors.' Now, therefore, your said petitioner alleges that, inasmuch as there has been no change of circumstances since the taking out of the first citation, within the meaning and contemplation of section 11, c. 326, of the General Laws 1909. And whereas, the said jus "Andrea Santangini, of the city and county of Providence and state of Rhode Island, complains of George N. Bliss, justice of the dis- "And your petitioner further avers that trict court of the Seventh judicial district, the said Sabastiano De Gasbarro and Teresa and for cause thereof showeth unto your Di Ciccio on, to wit, the 7th day of May, honors: That on the 10th day of February, A. D. 1912, petitioned the said respondent, A. D. 1912, your said petitioner recovered Hon. Geo. N. Bliss, justice of the district judgment in an action for deceit against court of the Seventh judicial district, allegSabastiano De Gasbarro, alias, and Teresa Di Ciccio, alias, both of Providence, in said county, for the sum of $90 and $23.64 costs of suit, in the superior court within and for the county of Providence, and that execution in said case was issued the 13th day of February, A. D. 1912. Your petitioner further prays that on the 4th day of April, A. D. 1912, the bodies of said defendants were committed to the Providence county jail under and by virtue of said execution. And your petitioner further avers that on, to wit, the 23d day of April, the said defendants and each of them petitioned the Honorable Frederick Rueckert, justice of the district court of the Sixth judicial district, that they and neither of them had no real or personal estate wherewith to support them-tice of the district court of the Seventh judiselves or to pay jail charges, and that they cial district is without power and authority and each of them prayed the said justice of to act in the matter; and whereas, the said the district court of the Sixth judicial dis- Hon. George N. Bliss, justice of the district trict to administer unto them a poor debtor's court of the Seventh judicial district has oath and deliver to them certificate thereof, caused the said petitioner, Andrea Santanas provided in chapter 326 of the General gini, to be notified to appear at the said jail Laws of Rhode Island 1909. And your pe- the 15th day of May, A. D. 1912, at 11 o'clock titioner further avers that said Hon. Fred- a. m., to show cause, if any he has, why the erick Rueckert, justice of the district court said defendants should not have the benefits of the Sixth judicial district, then and there of said oath: Now, therefore, your petitioner AGREEMENT BE prays that a writ of prohibition may issue [ 3. STIPULATIONS (8_7*) court rule 28, an oral agreement between coun- Anthony V. Pettine, of Providence, for petitioner. Charles H. McKenna, of Providence, for respondent. [Ed. Note. For other cases, see Stipulations, Cent. Dig. § 14; Dec. Dig. § 7.*] 4. ATTORNEY AND CLIENT (§ 86*)-RETAINER OF ATTORNEY-WAIVER OF LEGAL REQUIREMENTS. The retainer of an attorney in a suit brought against an administratrix, who herself is not authorized by statute to waive the filing of a claim in the probate court, gives him no implied authority to waive the prosecution of the claim according to law. [Ed. Note.-For other cases, see Attorney 86.*1 and Client, Cent. Dig. §§ 155-160; Dec. Dig. Exception from Superior Court, Provi ner, Presiding Justice. Action by Clarence C. Andrews, administrator, against Francis L. O'Reilly, in which Irene K. O'Reilly, administratrix, was summoned after his death. Motion to dismiss granted, and plaintiff excepts. Remitted to superior court, with direction to enter judgment of dismissal upon the decision. PER CURIAM. Inasmuch as the magistrate, on the hearing of the first petition for the taking of the poor debtor's oath, refused the petition on the ground that the petition-dence and Bristol Counties; Willard B. Taning debtors had committed fraud upon their creditors in the disposition of their property, and as the only change of circumstances now alleged in the second petition of the same debtors is the making of a common-law as signment for the benefit of creditors, but it does not appear that the debtors' property disposed of in fraud of their creditors has been brought under the control of the said assignee, or that any other property has been actually conveyed to the assignee for the benefit of creditors, we fail to see how any such change of circumstances has been brought about by said assignment as will warrant the further proceeding by the magistrate in the matter of granting permission to take the poor debtor's oath. Bassett & Raymond, of Providence (R. W. Richmond, of Providence, of counsel), for plaintiff. John J. Heffernan and James H. Rickard, Jr., both of Woonsocket, for de fendant. PARKHURST, J. In this case there was a motion to dismiss, which was granted by The writ of prohibition will issue as pray- Presiding Justice Tanner in the superior ed in the petition. (34 R. I. 256) ANDREWS v. O'REILLY. (Supreme Court of Rhode Island. May 11, 1912.) 1. EXECUTORS AND ADMINISTRATORS (§ 431*) -ACTION AGAINST ADMINISTRATOR-CONDITIONS PRECEDENT. court, and the plaintiff brings the case here upon bill of exceptions; the only exception being to the granting by the court of the motion to dismiss. The circumstances of the case are as follows: The writ was dated August 30, 1900. The case was entered September 20, 1900. Various demurrers and pleas were filed, several amendments to the declaration were allowed, amended declarations were filed, demurrers and pleas withdrawn, etc., but the pleadings have never been closed. The suit was an action of debt on a judgment obtain Where plaintiff, on death of defendant, does not file the suit as a claim in the probate court, as required by Gen. Laws 1909, c. 314, §3, and Court and Practice Act 1905, § 883, he cannot maintain the action though he sum-ed against the Woonsocket Opera House mons in the administratrix without amendment of his declaration. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 764, 767, 819, 1854, 1856; Dec. Dig. § 431.*] 2. EXECUTORS AND ADMINISTRATORS (§ 431*) -ACTION-DISMISSAL. Where plaintiff, by failure to allege and prove the filing of a pending suit as a claim against defendant's estate in the probate court and its disallowance, cannot maintain the suit against defendant's administratrix, who is summoned therein, the court is required to dismiss the action on motion of the administratrix, showing that plaintiff cannot truthfully make the necessary averments. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 764, 767, 819, 1854, 1856; Dec. Dig. § 431.*] Company, and was brought against the defendant as a stockholder in that corporation, in the endeavor to enforce an alleged stockholder's liability under the statutes then in force relating to such liability. The defendant, Francis L. O'Reilly, died August 5, 1905, and Irene K. O'Reilly was appointed his administratrix, and the first publication of her notice of appointment was September 14, 1905. The plaintiff never filed this pending suit as a claim in the probate court, as required by the statute. Gen. Laws 1909, c. 314, § 3; Court and Practice Act, § 883. The plaintiff summoned in the administratrix, but never amended the declaration in any For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes way, and never put anything upon the rec- | unless orally made or assented to by them ords of the superior court indicating that he in the presence of the court when disposing had a right to prosecute the case against of such business, or they will be considered the administratrix, either by amending the of no validity." declaration or in any other manner. On March 27, 1908, a motion to dismiss was filed on behalf of the administratrix, alleging that she was not subject to the jurisdiction of the court, because the claim had never been filed, and that there was nothing upon which the plaintiff could maintain this suit as against her. The motion was heard and granted by Presiding Justice Tanner on January 13, 1912. [1, 2] The action was rightly dismissed upon the motion, as above set forth. The plaintiff summoned in the administratrix, and should have then made such amendments as would show that he had a cause of action against the administratrix. One of the things the plaintiff must allege and prove in a case against the administratrix is that a claim was filed in the office of the probate clerk and disallowed. The motion to dismiss showed to the court that the plaintiff could not truthfully make the necessary amendments. The court, in summoning in the administratrix, had no opportunity to know the facts. The first and only opportunity that the administratrix, in this case, had to object to being made a party, was by motion after service of process. This motion set forth the objections which the administratrix had to being made a party. As there was no ground to make the administratrix a party, the administratrix was properly discharged upon motion. It was not only the right, but the duty, of the judge to act upon this matter upon motion, and so save the state and the parties the great expense of litigating the intricate questions of law arising upon the pleadings in the case, since failure to prove the proper filing of the claim and its disallowance, under the statute above cited, must have led to the dismissal of the action upon the motion for a nonsuit, even if the case had been allowed to come to trial. [3] It was admitted by the plaintiff that the claim had not been filed, and the only excuse is contained in two affidavits, in which it is claimed that Mr. Heffernan, the attorney for the administratrix, told the attorneys for the plaintiff that he would not raise the point that the claim had not been filed. Mr. Heffernan denies that these affidavits are true. The judge acted upon the motion in favor of the administratrix. But the affidavits are entirely immaterial. All that they suggest in any way is that there was an oral agreement between counsel as to what point should or should not be raised in a case then pending in the superior court. Such oral agreements are invalid under rule 28 of the superior court, as follows: "All agreements of parties or attorneys touching the business of the court shall be in writing, [4] It cannot be said that these affidavits show a waiver by the administratrix of the filing of the claim in the probate court. The affidavits do not show that Mr. Heffernan possessed any authority, more than what is implied by his retainer as attorney in this case. The retainer of an attorney in a lawsuit brought against an administratrix does not give him any implied authority to waive the proper prosecution of the claim according to law. The statute contains no provi sion which authorizes the administratrix to waive the filing of the claim as provided by the statute above cited. See Thompson v. Hoxsie, 25 R. I. 377, 381, 55 Atl. 930. For these reasons, this court is of the opinion that the suit was properly dismissed upon the motion by the presiding justice of the superior court, and the plaintiff's exception is therefore overruled. The case is remitted to the superior court, with direction to enter its judgment of dismissal upon the decision. (108 Me. 573) CILLEY V. LIMEROCK R. CO. (Supreme Judicial Court of Maine. April 20, 1912.) EMINENT DOMAIN (§ 271*)—TRESPASS ON DEFENDANT'S LAND RIGHT OF ACTION. In an action for damages for building a railroad upon and across the plaintiff's land, plaintiff must show possession of the premises described, that defendant committed the alleged acts of trespass, and resulting damages. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 725-736, 741; Dec. Dig. § 271.*] Exceptions from Supreme Judicial Court, Knox County. Action by Jonathan P. Cilley against the Limerock Railroad Company. Verdict for defendant, and plaintiff excepts. Judgment on verdict. Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, KING, HALEY, BIRD, and HANSON, JJ. Jonathan P. Cilley, pro se. Arthur S. Littlefield, for defendant. PER CURIAM. The acts complained of are alleged to be the building and maintaining of a railroad upon and across the plaintiff's close. At the conclusion of the plaintiff's evidence the defendant informed the presiding justice that it would offer no further evidence, and moved that a verdict for the defendant be directed, which was done. The case comes up on an exception to that ruling, and another exception to the exclusion of certain testimony relating to the value of the locus. We think the ruling directing a verdict for Though the court can say, as a matter of law, that there is an age at which a child cannot exercise any care under the circumstances, and also an age when the court can say, as a matter of law, that a child is capable of exercising some care under the circumstances, between these limits are the ages where it is for the jury to determine the capacity of the child to exercise care for itself. [Ed. Note. For other cases, see Negligence, Cent. Dig. 88 277-353; Dec. Dig. 136.*] 4. STREET RAILROADS (§ 114*) — INJURY TO CHILD ON TRACK-CARE OF CHILD. In an action for the death of a child about the defendant was correct. It was incum- 13. NEGLIGENCE (§ 136*)-CONTRIBUTORY NEGLIGENCE- - CAPACITY OF CHILD QUESTION bent upon the plaintiff to show: (1) That he FOR JURY. had either the actual or constructive possession of the premises described in his writ; (2) that the defendant committed the alleged acts of trespass on the premises; and (3) the damages resulting to him on account thereof. The plaintiff did show that he had a title to 126/138 of the premises described in his writ, containing one-fourth of an acre, and mentioned in the evidence as the "Cook quarry." The exact location, however, of the Cook quarry upon the face of the earth was in issue, and if the decision of the question now before us depended upon whether five years old struck by a street car, evidence or not the plaintiff had sufficiently estab-held not to show want of due care on the part lished its location, we should be in much [Ed. Note.-For other cases, see Street Raildoubt and uncertainty about it. But our de- roads, Cent. Dig. § 239-250; Dec. Dig. § cision does not depend upon the determina- 114.*] tion of that question, for the plaintiff wholly neglected and omitted to prove the alleged acts of trespass. No evidence whatAction by Elizabeth Grant, administratrix, ever was introduced tending to show that against the Bangor Railway & Electric Comany of the acts complained of were commit-pany, to recover damages at common law for ted by the defendant or by any one else. personal injuries sustained by her intestate, This was undoubtedly an inadvertent omis- who was her child five years and three sion on the plaintiff's part, but it is never-months old, by reason of being struck and theless fatal to his case. Accordingly the ruling directing a verdict for the defendant was right. Inasmuch as the plaintiff failed to prove the acts of alleged trespass, a consideration of the other exception (to the exclusion of testimony relating to the value of the locus) is immaterial. The entry must therefore be: Exceptions to the ruling directing a verdict for the defendant overruled. Judgment on the verdict. (109 Me. 133) GRANT v. BANGOR RY. & ELECTRIC CO. (Supreme Judicial Court of Maine. May 9, 1912.) 1. STREET RAILROADS (§ 114*) - INJURY TO PEDESTRIAN-NEGLIGENCE OF MOTORMAN. In an action against a street railway company for death of plaintiff's child by being struck by a street car, evidence held to show that the motorman failed to exercise that degree of care which the situation demanded, especially in failing to reduce the speed of the car and having it under control as demanded by the exigencies of the occasion. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. 88 239-250; Dec. Dig. 114.*] CON 2. DEATH (§ 24*)-INJURY TO CHILD [Ed. Note.-For other cases, see Death, Cent. Dig. § 25, 26; Dec. Dig. § 24.*] of the child. On Motion from Supreme Judicial Court, Penobscot County. run over by a street car of the defendant and which resulted in the death of the child a few hours after the injury. The declaration in the writ alleges that the deceased child "endured great conscious mental and physical suffering from the effects of her said injuries for a long period of time, to wit, from the time of receiving her said injuries until the time of her death," and the evidence shows that the child was conscious after her injuries and underwent great suffering. Verdict for plaintiff for $1,508. The defendant filed a general motion for a new trial. Overruled. Argued before WHITEHOUSE, C. J., and CORNISH, KING, BIRD, HALEY, and HANSON, JJ. Fellows & Fellows, of Bangor, for plain. tiff. E. C. Ryder, of Bangor, for defendant. CORNISH, J. This is an action on the case brought by the plaintiff, as administratrix of the estate of Ida Bernice Grant, her deceased child five years and three months old, to recover damages at common law for injuries sustained by her intestate by reason of being struck and run over by a car of the defendant on Harlow street in the city of Bangor, about 5:30 p. m. July 13, 1910, from which injuries the child died a few hours later. The case is before the law court on defendant's motion to set aside the verdict as against the evidence. The following facts are fairly established: Mrs. Grant lived on the second floor of the National block on the corner of Harlow and Franklin streets. Harlow street runs in a general northerly and southerly direction, and the car in question was on its reg For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Witnesses for the plaintiff made the speed much greater than 7 or 8 miles an hour, some calling it 15 or 20, and others simply stating that the car was going very fast, so fast as it came out of Cumberland street and ular route, having come into Harlow street or 30 feet distant. That he immediately put from Cumberland street at a point 482 feet on the brake and reversed the power, but north of the place of the accident, and was it was too late. The car struck the little passing southerly along the center of Harlow girl where she was in the center of the track street toward Center street. Harlow street and ran over her. Reversing the power causis one of the busy streets of the city, and ed a fuse to blow out, which locked the the surroundings are such that motormen wheels, and the car slid a distance of 22 have special instructions not to run too fast car's length, or 75 feet, before it stopped. on that street. The accident occurred about That the rail was wet and muddy owing to five feet below the Prospect street crossing, the work that was going on. and in front of the playground in the yard of the high school. At this point the city was excavating a reservoir, so that the entire sidewalk and a portion of the street itself was blocked by the excavated earth, leaving a space of only two or three feet between continued its course down Harlow street as the outside of this pile of earth and the to attract their attention. The distance track of the defendant. This narrow space which the car went after the accident would was the walk in use. Cumberland street seem to confirm this view; the motorman makes a sharp descent into Harlow street, making it 75 feet, other witnesses more than and from the junction there is a continuous 100. downgrade of 22 per cent. on Harlow street past the place of accident toward Center street. The motorman had been in the employ of the defendant since May 30, 1910, was a spare hand, and had been on this run three days. Mrs. Grant, the mother, was obliged to go to a nearby market to purchase something for supper and left her five year old child for a few minutes on the sidewalk with the injunction to stay there, which the child promised to do. At the same time she called her older daughter, a girl of nine, and told her to watch her sister, which she also promised to do. The mother was gone only about 10 minutes, but the accident happened before her return. Such is the picture, and as is usual in this class of cases, where it is fairly drawn, the legal conclusions that follow are quite apparent. [1] 1. Defendant's negligence: From the above statement of facts it is difficult to resist the conclusion that the motorman failed to exercise that degree of prudent and watchful care which the situation demanded, especially in using that degree of precaution in reducing the speed of the car and having it under his immediate control which the exigencies required. The speed at which a car may be properly run and the kind of control which should be exercised over it must depend to some extent upon the surrounding circumstances and the It appears that the child did not remain situation ahead. No specific rate can be arwhere she was left, but walked along the bitrarily fixed. A speed of 13 miles an hour sidewalk to the excavation and was seen on Upper Main street in Lewiston under the standing by the reservoir about five or six there existing conditions was not considered feet from the track and eight feet from the necessarily dangerous and reckless in Malia crosswalk on Prospect street. She was v. St. Ry. Co., 107 Me. 95, 77 Atl. 541, while looking into the reservoir with her back a much less rate was demanded where the toward the approaching car. Then, in the language of an eyewitness called by the defendant: "She started across the track slowly until she was about in the middle of the track, when she turned slightly, and she saw the car, and she didn't know whether to continue and go across or come back. She seemed kind of dazed, and the car struck her on the forehead and knocked her down and run over her." track was near the sidewalk and private driveways were in frequent use in Butler v. Railway Co., 99 Me. 149, 58 Atl. 775, 105 Am. St. Rep. 267, or in approaching public street junctions, as in Denis v. Railway Co., 104 Me. 39, 70 Atl. 1047. A similar degree of caution should be observed in passing public playgrounds or where children are in the street. "The driver of a horse car in a street where there are children may well be It further appears from the motorman's required to manage his car with reference own testimony: That, as soon as he turned to all the risks that may reasonably be exinto Harlow street from Cumberland street,pected, and among these may be reckoned he saw the child standing near the track by the reservoir, and he watched her as she stood there all the time he was coming down the street, his vision being unobstructed. That he was coasting along Harlow street The motorman, in the case at bar, admits with the power shut off; that the car was that he saw this little girl as she was standmoving in his judgment about 7 or 8 miles ing only 5 or 6 feet from the track when an hour. That he did not apply the brakes he was nearly 500 feet away. She stood until he saw the child start to cross the there facing away from the car and appar the risks arising from the heedlessness and indiscretion of children in the street." Collins v. So. Boston R. R., 142 Mass. 301, 7 N. E. 856, 56 Am. Rep. 675. |