Home CLARK S. SEARS & another, trustees, & another vs. WOODBURY M. BARTLETT.

336 Mass. 757

May 31, 1957

Decree affirmed with costs of the appeal. On November 1, 1948, a "separation" agreement was entered into by the defendant, the plaintiff Frances T. Bartlett (then his wife), and the plaintiffs Sears and Ford, who were trustees thereunder. By the agreement the defendant was to pay Frances $6,500 and, until the $6,500 was paid in full, $18 weekly. The defendant made weekly payments until January 26, 1956, when they reached a total of $6,500. A dispute having arisen as to whether the $6,500 is exclusive of the weekly payments, this bill in equity for a declaratory decree was filed. The defendant appealed from a final decree declaring that he is indebted to Frances for the $6,500 and for accrued weekly payments of $18 from the date of the last such payment; and that he is obligated to pay $18 weekly until the $6,500 is paid. There was no error. It would serve no useful purpose to prolong discussion by analyzing this particular contract.

Home DOROTHY S. WINER vs. BOSTON AND MAINE RAILROAD.

336 Mass. 757

May 31, 1957

Exceptions overruled. This is an action of tort for negligence. The plaintiff while a passenger on a train of the defendant slipped on the first step down from the platform of the car from which she was alighting in Boston and was injured. The only evidence as to the step was that it was "worn, shiny and smooth in the center and worn down and shiny on the outer edge and on each side of the center . . . there were little bumps" or "raised elevations" which were part of the step and did not appear in the worn part. A verdict for the defendant was directed and the plaintiff excepted. The epithets, worn, shiny and smooth, standing alone or with the vague reference to "little bumps," are insufficient to describe a condition which could be found to be defective and a source of danger to passengers. Grace v. Boston Elevated Railway, 322 Mass. 224 . Dolan v. Boston & Maine Railroad, 328 Mass. 532 , 534-535.

Home GRAHAM & REDDINGTON, INC. vs. WALKER-PONTIAC, INC. & another.

336 Mass. 757

May 31, 1957

Exceptions overruled. The plaintiff excepted to an order of a judge of the Superior Court dismissing its appeal from the order of the Dorchester

Page 758

District Court denying its petition to vacate a judgment for the defendants entered in that court on October 14, 1955, in an action by the plaintiff against the defendants Walker-Pontiac, Inc. and another. The only evidence presented at the hearing on the appeal was the testimony of counsel for the plaintiff that he received no notice of the entry of judgment or of previous orders by the District Court in reference to the filing of a report by the plaintiff to the Appellate Division. There was no evidence of the nature of the plaintiff's original cause of action, of the point of law sought to be reported to the Appellate Division, or whether the name and address of its attorney appeared on the docket or papers in the clerk's office of the District Court. (See Rule 8 of the District Courts [1952].) In the absence of evidence that the plaintiff had a meritorious cause of action (see Lovell v. Lovell, 276 Mass. 10 , 11), or a substantial question for report to the Appellate Division, the failure on the part of the attorney to receive the notices, if found to be a fact, did not require the judge of the Superior Court to vacate the judgment.