Home COMMONWEALTH vs. HENRY PETER CIELAKIE.

341 Mass. 735

January 3, 1961

Judgment affirmed. This is an appeal under G. L. c. 278, Sections 33A-33G, claimed by the defendant from his "trial, conviction and sentence" on an indictment charging that on July 31, 1959, at Lowell he did assault and beat Arthur L. Evicci by means of a dangerous weapon. G. L. c. 265, Section 15A. The record of the case contains a transcript of the evidence but no assignment of errors. The defendant waived representation by counsel and tried his own case. Although in the absence of any assignment of error no point of law is presented for our decision, G. L. c. 278, Section 33D (Commonwealth v. Polian, 288 Mass. 494 , 496-497, Commonwealth v. Gale, 317 Mass. 274 , 277), we have examined the transcript and discover no error of law in the trial.

Home ELENA IOVANNA, administratrix, vs. BOSTON AND MAINE RAILROAD.

341 Mass. 735

January 3, 1961

Exceptions overruled. This is an action of tort for negligence wherein the plaintiff seeks to recover for the death of her intestate under G. L. c. 229, Section 2A (repealed by St. 1958, c. 238, Section 2, and now embodied in G. L. c. 229, Section 2). The plaintiff excepted to the direction of a verdict for the defendant at the close of the plaintiff's evidence. The intestate was an employee of a company under contract with the Massachusetts Department of Public Works. The company had no business relationship with the defendant. The intestate had been assigned to work in a manhole whose nearest edge was 5.9 feet from the nearest rail of the defendant's tracks. The defendant's engineer knew that work was being done in the general area. The intestate was struck and killed when he was bent over the rail closet to the manhole with his feet inside the track. At most, the intestate was a licensee upon the defendant's tracks, and the duty owed to him as such was to refrain from wilful, wanton or reckless conduct. There was neither allegation nor proof of such conduct, and the

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defendant was entitled to a directed verdict. Murphy v. Boston & Maine R.R. 248 Mass. 78 , 82. Couto v. Trustees of N. Y., N. H. & H. R.R. 312 Mass. 23 , 27.