Home JAMES LANDERS vs. LOUIS C. CYR.

318 Mass. 778

March 8, 1945

Exceptions overruled. This is an action of contract brought in the Superior Court on an account annexed to recover a balance of $1.043.89 and interest for crushing stone. The case was tried before a judge sitting without a jury who found for the plaintiff in the sum of $47.18. The plaintiff excepted to the admission of certain evidence. The bill of exceptions, however, does not state that it contains all the evidence material to the exceptions. The bill fails to show enough to enable this court to determine whether the plaintiff was harmed by the admission of the evidence. The burden was upon the excepting party to show prejudicial error. Consequently the exceptions must be overruled. See Posell v. Herscovitz, 237 Mass. 513 , 516-517.

Home HAROLD W. BURNHAM vs. JAMES F. ELLSWORTH.

318 Mass. 778

March 8, 1945

Order dismissing report affirmed. This action of contract was brought in the Municipal Court of the City of Boston. The defendant was defaulted. Thereafter the defendant filed a motion supported by affidavit to remove the default. After hearing upon the record and the affidavit -- no other documents or oral evidence being presented -- the motion was denied. There was a report to the Appellate Division which was dismissed, and the defendant appealed to this court. The record discloses no abuse of discretion amounting to error of law in the denial of the motion.

Home LORRAINE IRITANO vs. AGOSTINO DE STEFANO.

318 Mass. 778

March 27, 1945

Exceptions overruled. The plaintiff excepted to the entry of a verdict for the defendant under leave reserved, after the jury had returned a verdict for the plaintiff. The plaintiff, a girl of six, was hurt in the late afternoon of December 8, 1937, while entering, through a dark common entrance, a tenement house in which her mother had hired a tenement for twenty years. The defendant could be found to have been the landlord since 1934, at which time there was an electric light in the hallway of the house that would throw light through the glass panel of a door out upon the stone steps in ascending which the plaintiff fell. We assume that one of the terms of the tenancy could have been found to be that that light should be kept in working order as it existed in 1934. Faxon v. Butler, 206 Mass. 500 . Gallagher v. Murphy, 221 Mass. 363 . But the light was controlled by a pull chain inside the house, and there is no evidence that the defendant undertook to control that light or to keep it lighted. Pizzano v. Shuman, 229 Mass. 240 . Carey v. Klein, 259 Mass. 90 . Teall v. Harlow, 275 Mass. 448 . Rodde v. Nolan, 281 Mass. 493 . There was evidence that that light had been out of order for some months before the date of the injury. But it is wholly conjectural whether that light, if in working order at the time of the injury, would have been lighted at that time. It could not have been lighted by the plaintiff until she

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had gone up the steps and into the house. Moreover, we find no evidence that the plaintiff's fall was caused by darkness. The only structural defect shown was a chip in the edge of the tread of the second step, and there is no evidence that that bore any causal relation to the injury.