Where a Landlord Lets different portions of a building to different tenants, he owes to them the duty of reasonable care to see that the stairs, hallways, and other parts of the premises used by them in common are in a safe condition for use: See the note to Griffin v. Jackson Light etc. Co., 92 Am. St. Rep. 520; Siggins v. McGill, 72 N. J. L. 263, 111 Am. St. Rep. 666; Widing v. Penn Mutual Life Ins. Co., 95 Minn. 279, 111 Am. St. Rep. 471.

TOOLE v. CRAFTS.

[193 Mass. 110, 78 N. E. 775.]

WAIVER in Ignorance of Legal Effect of Known Pre-existing Facts-If one who signs a waiver of demand, notice and protest of a promissory note knows of the absence of such demand, notice and protest, his waiver is effective, though he did not know that such absence had relieved him from liability. (p. 456.)

FRAUD, Evidence of.-In an action against an indorser of a note who had been released by the failure to make demand for payment and give notice of dishonor, but who had thereafter executed a written waiver of such demand and notice, and claims that such waiver was procured by fraudulent misrepresentation, he should be permitted to testify that when he signed the waiver he did not know that he had been released from liability. Such evidence, though not admissible for the purpose of diminishing the effect of the waiver, is relevant upon the issue of fraud. (pp. 456, 457.)

Action against the maker and indorser of a promissory note. The former did not defend. Verdict and judgment for the plaintiff, and the indorser appealed.

A. L. Green and F. F. Bennett, for the defendant.

C. T. Callahan, for the plaintiff.

111 HAMMOND, J. This is an action upon a promissory note dated April 2, 1900, signed by the defendant, Howard A. Crafts, and payable to the order of plaintiff on demand. Before its delivery to the plaintiff, the other defendant, Linus D. Crafts, who alone defends, placed his name upon the back of it. He is therefore liable only as an indorser: Stats. 1898, c. 533, sec. 63, now Rev. Laws, c. 73, sec. 80. No demand sufficient to charge him as indorser ever was made upon the maker, and, if the matter had stood there, his defense would have been perfect. But the matter did not stand there. Upon June 27, 1904, when the time for making a demand upon the maker sufficient to charge the indorser had expired, a

conversation took place between one Allyn, the attorney for the plaintiff, on the one hand, and Linus on the other, during which the former wrote upon the back of the note, and the latter signed a waiver of "demand, notice and protest." The evidence as to the tenor of the conversation was conflicting, and one question was whether the waiver had reference to a demand, notice and protest which ought to have been made in the past in time to charge the indorser, or to a demand, notice and protest which the plaintiff was about to make. This question was submitted to the jury with proper instructions. The verdict shows that the jury found that the language had reference to the past.

The defendant contended that at the time he signed the waiver he was not aware that he had been freed from his liability, but the judge rightly ruled that if he knew the facts which released him, his ignorance as to their legal effect would not save him from the consequences of the waiver: Third Nat. Bank v. Ashworth, 105 Mass. 503.

112 The defendant contended that he was induced to sign the waiver by the false and fraudulent representations of Allyn acting for the plaintiff. This question was submitted to the jury under quite full instructions. The defendant bas complained of those instructions, but we have not had occasion. to consider them, because we are of opinion that a new trial must be had for error in the exclusion of the evidence bearing upon this part of the defense.

To make good his defense of fraud the defendant was bound to show not only that the representations were false and fraudulent, but that in reliance upon them he was induced to act as he did. Upon this branch of the defense, the operation of his mind was for the consideration of the jury, and on that subject he was a competent witness: Knight v. Peacock, 116 Mass. 362. He offered to show by his own testimony that at the time he signed the waiver he did not know that he had been relieved from liability on the note. This evidence was excluded. While, as above stated, it was not admissible to relieve him from the consequences of his waiver in the absence of fraud, yet upon the question of whether the representations of Allyn were the real and effective inducement to his action, it was admissible. It might well be that a man believing himself to be liable upon a note could be more easily influenced to sign such a waiver than one who believed himself free from liability. A reading of the record shows that this

evidence was offered at the stage of the defense in which the defendant was trying to prove the fraud. It should have been admitted. Its exclusion may have worked harm to the defendant. It becomes unnecessary to consider the other objections to the exclusion of evidence. They may not arise again.

Exceptions sustained.

If an Indorser of a Note indorses thereon a waiver of protest, one year and a half after its maturity, with knowledge that no demand for payment has been made or notice of dishonor given him, he becomes liable on the note: Burgettstown Nat. Bank v. Hill, 213 Pa. 456, 110 Am. St. Rep. 554.

An Indorser's Promise to Pay a note after failure to notify him of presentment and dishonor is binding upon him if he knew that no notice had been given, though he did not know the legal effect of such omission: Glidden v. Chamberlain, 167 Mass. 486, 57 Am. St. Rep. 479.

ORMANDROYD v. FITCHBURG AND LEOMINSTER STREET RAILWAY COMPANY.

[193 Mass. 130, 78 N. E. 739.]

A STREET RAILWAY CORPORATION is not Liable to a Passenger in an Open Car injured by being struck by the wadding of a cannon fired with a blank cartridge by a citizen, who, with and by the firing of such cannon, was, and during the day preceding had been, celebrating the Fourth of July, though the car was not stopped on approaching the place where the cannon was being discharged, nor were any precautions taken to guard the passengers against injurious consequences. (p. 458.)

Tort, joined with a count in contract, to recover for personal injuries to plaintiff while a passenger on an open car of the defendant street railway company. She was struck by the wadding of a cannon eighteen inches long, mounted on a wooden block six inches high, discharged by a citizen in his dooryard, upon a public street. The superintendent of the defendant knew that for many years before the happening of the accident, there was a great deal of discharging of firearms in the city on the Fourth of July. The car was not stopped on approaching the place where the cannon was being discharged, nor were any precautions taken to guard the passengers against the consequences of such discharge. The cannon had been discharged at various times preceding on the same day, and was easily seen from the defendant's track.

The trial judge ruled that the plaintiff could not recover, and ordered a verdict for the defendant.

C. H. Blood, for the plaintiff.

C. F. Baker and W. P. Hall, for the defendant.

131 HAMMOND, J. The evidence did not warant a finding of negligence on the part of the defendant. The accident happened about half-past 5 in the afternoon of July 4, 1905. With the exception of one or two rests, each lasting less than 132 an hour, one Ouellet, who seems to have devoted the day to a patriotic celebration, had been discharging the cannon "practically all day since 4 o'clock in the morning until the time of the accident, as often as it could be loaded, which took from five to fifteen minutes." Ever since half-past 5 in the morning the cars of the defendant had been passing by this locality, so that up to the time of the accident several hundred cars had passed. It was a day for fireworks of every description. The cannon was loaded with blank cartridges, and was in Ouellet's yard, quite a distance from the street, sending out "a jet of flame and a volume of smoke as far as the sidewalk," several feet short of the defendant's car tracks. The defendant had no reason to anticipate any danger to its passengers from such a source. Nor was it bound to stop its car and investigate for the purpose of seeing whether the cannon was properly loaded or pointed. The firing had been going on all day, and, in the absence of any indication to the contrary, the defendant had the right to assume that it was not a hostile demonstration against the travelers upon the highway, but was a simple ebullition of patriotic emotion, and, as such, was harmless. To require a street railway corporation to have a general oversight of the details of such exhibitions along the line of the highway on the anniversary of the Declaration of Independence, and to hold it responsible for the consequences to its passengers of any neglect of the exhibitors, would be unreasonable. Such care would be inconsistent with the proper transaction of the business. It might keep the passengers safe, but the cars would practically be at a standstill most of the time, and their proper efficiency would be greatly impaired. The case widely. differs from those cases where the railway corporation has reason to anticipate danger from a crowd of rioters or from other causes.

Exceptions overruled.

The Duty and Liability of Street Railway Companies to their passengers are discussed in the note to Thompson v. Gardner etc. Street Ry. Co., post, p. 459. As to the duty of a carrier to protect its passengers from exterior assaults by third persons, see Spangler v. St. Joseph etc. Ry. Co., 68 Kan. 46, 104 Am. St. Rep. 391; Fewings v. Mendenhall, 88 Minn. 336, 97 Am. St. Rep. 519; Brunswick etc. R. R. Co. v. Ponder, 117 Ga. 63, 97 Am. St. Rep. 152.

THOMPSON v. GARDNER, WESTMINSTER AND FITCHBURG STREET RAILWAY COMPANY. [193 Mass. 133, 78 N. E. 854.]

A STREET RAILWAY COMPANY is not Responsible for the Condition of a Street, nor answerable to passengers injured by its want of safety. (p. 460.)

A STREET RAILWAY COMPANY is not Under Any Duty to Caution Passengers in alighting from cars against stepping into a gutter or defect in the street for the existence of which the corporation is not blamable, and a passenger injured by so stepping cannot recover. (p. 460.)

J. F. McGrath and J. P. Carney, for the plaintiffs.

J. A. Stiles, for the defendant.

183 HAMMOND, J. These two actions brought to recover damages by reason of injuries received by the plaintiff in the first action were tried together. We shall speak only of the first, because the second stands or falls with it.

The defendant's track ran by the side of the road; and between the track and the sidewalk there was a gutter in the form of a ditch about one foot wide, and about one foot deep, the nearest line of the ditch being two and one-half feet from 134 the nearest rail of the track. The car stopped for passengers to alight. It was about 8 o'clock in the evening of the sixteenth day of August. As to the circumstances the plaintiff testified that when the car stopped she stood up to get off on the "usual side," "the left-hand side"; that "there were people standing between the seats and between her and the left-hand side (which was the street side); that she was standing facing the front of the car with her right hand toward the sidewalk; that she saw the conductor go around to the sidewalk side of the car; that he passed right by them [herself and