Home SAMUEL FRILICH vs. SIMON ALTSTEIN & another.

3 Mass. App. Ct. 720

March 10, 1975

The sole issue presented upon this appeal from a decree of a Probate Court appointing an administrator is whether due notice of a hearing on the allowance of the petition was given to the appellants who claim to be persons interested in the decedent's estate. No request was made of the judge for a report of material facts nor is there a transcript of the evidence. In these circumstances "all that is open is whether the decree could have been entered on the pleadings." Bannish v. Bannish, 357 Mass. 279 , 281 (1970). Marean v. Kershaw, 281 Mass. 332 , 333 (1933). From the sparse record before us, it appears that the appellants are a niece and a nephew of the decedent and also the children of one of two brothers, the brothers being the decedent's next of kin. The latter representation is made not only in the petition for administration brought by the other brother which was allowed but also in a cross petition for administration filed by one of the appellants. The record reveals that the appellants' father received notice of the petition which was allowed and that no appearance against it was filed in his behalf. It follows that (1) since they were not next of kin, the appellants lacked standing as interested persons, either to bring or oppose a petition for administration of this estate (see G. L. c. 193, Section 1; Cassidy v. Truscott, 287 Mass. 515 , 523 [1934]; compare Stamper v. Stanwood, 339 Mass. 549 , 550-551 [1959]), and (2) no error is apparent on this record in the entry of the decree appointing an administrator on the petition of that brother which recited that the appointment was made "after hearing" and that "all persons interested have had due notice according to the order of the court."

Decree affirmed.

Home SUMNER H. ROGERS vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

3 Mass. App. Ct. 720

March 10, 1975

In this action to recover damages for an injury to the plaintiff's foot, which occurred as he ran across the platform of the defendant's Government Center subway station toward a waiting train and used the foot to "brake" himself when he saw the doors of the train close, the defendant's motion for a directed verdict was rightly allowed. Construing the evidence most favorably to the plaintiff (Kingsley v. Massachusetts Bay Transp. Authy. 1 Mass. App. Ct. 838 [1973]), and assuming, without deciding, that the defendant

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owed the plaintiff, as a passenger (Warren v. Fitchburg R.R. 8 Allen 227 , 231-232 [1864]), a duty of greater care at the time of the accident than it would have owed to an ordinary invitee (Carson v. Boston Elev. Ry. 309 Mass. 32 , 35 [1941]; but see Oliveri v. Massachusetts Bay Transp. Authy. 363 Mass. 165 , 167 [1973]), we find no evidence of any violation of that duty. There was no evidence that whichever employee of the defendant closed the doors either saw the plaintiff or could have been aware of his dash toward the doors (see O'Loughlin v. Bay State St. Ry. 221 Mass. 65 , 66-67 [1915]; compare Hines v. Boston Elev. Ry. 198 Mass. 346 , 349 [1908]; contrast Harrison v. Boston Elev. Ry. 316 Mass. 463 , 465-466 [1944]), and there is nothing to show that any reasonable precaution which the defendant could have taken would have prevented the accident (compare Carlson v. Boston & Maine R.R. 269 Mass. 60 , 63 [1929]). It is therefore unnecessary for us to decide whether the plaintiff was contributorily negligent as matter of law. See Hebert v. Massachusetts Bay Transp. Authy. 1 Mass. App. Ct. 670 (1974).

Order for directed verdict affirmed.

Judgment for the defendant.