353 Mass. 747

November 2, 1967

In this action of tort for personal injuries allegedly due to the negligence of the defendant in causing her to fall from a sidewalk or platform in front of a store which was part of premises leased to the defendant, the plaintiff excepted to directed verdicts for the defendant. The platform was five inches above the level of the abutting parking area, and forty feet of its length was used for children's amusement devices, including a miniature merry-go-round or turntable. The plaintiff attributed her injury to the fact that, having placed her grandchild on the back of one of the two wooden horses mounted on the merry-go-round, she deposited a dime in the coin box on the center pole, whereupon the machine immediately started up and she was struck by the hind hooves of one of the horses, causing her to fall from the platform. She later ascertained that the hind hooves extended about ten inches beyond the turntable platform. There was no evidence that the device which had been on the premises for some years was defective structurally or otherwise. Photographs are before us. The purpose and construction were open and obvious to persons of ordinary intelligence. In these circumstances there was no duty to warn. Alden v. Norwood Arena, Inc. 332 Mass. 267 , 271. Scully v. Joseph Connolly Ice Cream Sales Corp. 336 Mass. 392 , 394.

Exceptions overruled.


353 Mass. 747

November 3, 1967

A consent decree in the Probate Court, dated July 10, 1962, modified a decree dated March 21, 1961, by providing that the libellee Samuel Mayes pay as alimony to the libellant Sophie $150 weekly for her support and for the support of two minor children. On December 13, 1965, on the petition of Samuel, the judge, after hearing and on reported evidence, without findings of fact, further modified the decree of March 21, 1961, by providing for the payment of $75 weekly to Sophie as alimony only, retroactive to February 1, 1965. Sophie appeals. It is undisputed that the children had attained their majority. On conflicting evidence the judge could find, as the decree imports he did find, that Samuel's health, impaired by hepatitis, had diminished his ability and desire to augment his regular salary as an orchestra member by solo performances, and other extra work, and that his earnings were substantially less than they had been on July 10, 1962, whereas Sophie's financial circumstances had, in general, improved. We cannot say that the judge was plainly wrong. See Whitney v. Whitney, 325 Mass. 28 .

Decree affirmed.


353 Mass. 747

November 3, 1967

The petitioners appeal from an order for judgment dismissing a petition for a writ of mandamus to compel the respondent board inter alia to certify an alleged referendum petition. The alleged referendum petition, filed with the city clerk on September 13, 1966, was directed to an order passed by the city council on August 15, 1966. Assuming that what was filed by the petitioners with the respondent city clerk qualified as a referendum petition, it was not filed within twenty days following the passage of the protested measure. See G. L. c. 43, Section 42. The

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petition was not in terms directed to a later order passed by the city council on August 24, 1966, the subject matter of which was distinct from that of the earlier order.

Order for judgment affirmed.