PIERCE, J. This is an action of tort brought under the federal employers' liability act to recover damages for the death of the plaintiff's husband, Justin W. Rhoades, a conductor in the employ of the defendant. Upon the issue whether the parties were engaged in interstate commerce in the operation of the train at the time of the injury to the intestate, the plaintiff introduced the testimony of Edward J. Pierce, a messenger of the American Express Company, in substance to the effect that he had a book, made up by himself while on the train, which told the valuable packages that were left at the different stations; that these packages were accompanied by way bills; that each package had a way bill and was copied on to the book from the way bill; that he made the entries on this book from way bills he received; that the only information he had with reference to the place where any of the packages came from was the information he got from the way bill corresponding with the name and sticker on the package; that whatever was on the surface of the packages in the way of names and stickers and whatever there was on the way bills was the entire source of information from which he made the entries; that he knew nothing about what any package contained or about where it came from except the information he got from the package itself and the way bill. Subject to the exception of the defendant the witness testified, that on December 24, 1912, certain packages came from outside the State and were delivered within the State; that he "left one package from West Shore Depot, New York, a sealed package at West Newton; from Albany, New York, a package that went down to Newton Centre, and from West Shore, New York, a package of cigars; from West Shore again a sealed package for West Newton, signed for by A. Kirk." The book of entries was then put in evidence subject to the exception of the defendant, and from the book sixteen different entries were read to the jury of packages brought from without the State and delivered within the State on December 24, 1912. One of these packages bore the way bill number 317. A delivery sheet was then admitted in evidence subject to the exception of the defendant, and the entry from this sheet was then read to the jury as follows: "Waybill 317, dated December 23rd, from Albany, New York; package, jewelry sealed; addressed to F. Witherbee; destination, Brae Burn Country Club." Frances Witherbee testified that she received a present of jewelry at Christmas at the Brae Burn Country Club; that there was a card in the package; that she did not have the card now; and was permitted to testify subject to the exception of the defendant, that the name on the card was Frank Fripp, and that he lived in Albany. The book and entries should not have been received in evidence to prove that the packages on the train were being carried in a continuous shipment from one State to their destination in another State. The knowledge of Pierce, who made the declaration, was derived solely and entirely from an inspection of way bills and stickers on packages. The book and entries while made in the usual course of business were not required by law to be made. They were not shop books and they were not entries “in an account . . . book" within the meaning of St. 1913, c. 288. Butchers Slaughtering & Melting Association v. Boston, 214 Mass. 254, 259. Kaplan v. Gross, 223 Mass. 152. The entries in the book and on the delivery sheet were not admissible as secondary evidence to prove the contents of the way bills; because the way bills themselves as acts, admissions, or declarations of the American Express Company, were not admissible against the defendant in the absence of evidence that the American Express Company received the packages or issued the way bills as agent or by authority of the defendant. The evidence on cross-examination of the engineer as to the rate of speed the train of the intestate was running when the signal was given to stop it, could have no tendency to prove how fast the other train was moving when or just before it struck the intestate, and the evidence could not have injured the defendant. There was evidence to warrant a finding that the peril of the intestate should have been seen and the speed of the train sufficiently reduced to avoid striking him. Exceptions sustained. GEORGE T. HORAN vs. BOSTON TRANSIT COMMISSION. Suffolk. March 21, 1917. - May 25, 1917. Present: RUGG, C. J., BRALEY, DE COURCY, & PIERCE, JJ. Boston Transit Commission. Construction. Boston Elevated Railway Company. Statute, The provision of Spec. St. 1915, c. 293, § 1, that "The Boston transit commission shall construct a tunnel or subway" in the Charlestown district of the city of Boston "under the same provisions as to construction, payment and use that are provided by law for the construction, payment and use of the present tunnel under Washington Street in the city of Boston," incorporate by reference such portions of St. 1902, c. 534, as are pertinent and material. The provisions of Spec. St. 1915, c. 293, § 1, do not require the Boston transit commission to proceed with the construction of the tunnel or subway therein described until the Boston Elevated Railway Company has consented to and has executed with the commission the contract for the sole and exclusive use of the tunnel or subway described in St. 1902, c. 534, § 10, and thereafter as provided in St. 1902, c. 534, § 19, the statute has been submitted for acceptance to the voters of the city at the next municipal election and has been accepted by them. PETITION, filed in the Supreme Judicial Court on December 20, 1915, by an inhabitant of the city of Boston owning real estate abutting on Main Street, in that part of Boston called Charlestown, in front of which is the elevated structure of the Boston Elevated Railway Company, for a writ of mandamus directing the Boston transit commissioners "to commence the construction of a tunnel or subway forthwith in accordance with Spec. St. 1915, c. 293." The answer stated in substance that the Boston Elevated Railway Company was not willing to enter into a contract with the city of Boston for the use and occupation of the tunnel, and that the respondents had been unable to proceed with its construction under the same provisions as to construction, payment and use as are provided by law for the construction, payment and use of the present tunnel under Washington Street in the city of Boston. The petition was heard by Crosby, J., who found as a fact that the Boston Elevated Railway Company had refused to enter into a contract with the city of Boston for the use and occupation of the tunnel provided for by the special act above described under the conditions specified by it in that act, and therefore ruled as matter of law that the respondents were not required to construct the tunnel in accordance with the act; and at the request of the petitioner reported the case for determination by the full court. The material portions of Spec. St. 1915, c. 293, are as follows: "SECTION 1. The Boston transit commission shall construct a tunnel or subway from a point at or near City Square to a point at, near or beyond Sullivan Square in the Charlestown district of the city of Boston, under the same provisions as to construction, payment and use that are provided by law for the construction, payment and use of the present tunnel under Washington Street in the city of Boston." Material portions of St. 1902, c. 534, are as follows: "Section 1. . . . The structure for the two tracks especially adapted for elevated cars or trains, hereinafter called the tunnel, shall be begun immediately after the acceptance of this act by a majority of the voters of the city as hereinafter provided. The structure for the remaining two tracks, hereinafter called the subway, shall be begun at such time after the expiration of one year from the completion of the tunnel as the commission and the Boston Elevated Railway Company, hereinafter called the company, may agree upon, or, in case of difference, as the board of railroad commissioners, hereinafter called the board, shall determine that the public interests require. The structure or structures for all four tracks, with the appurtenances, or any part or parts thereof, may be begun at any time after the acceptance of this act by a majority of the voters of the city as hereinafter provided, if and so far as the commission deems it expedient and if the company by its board of directors consents thereto." "SECTION 10. The commission shall within ninety days after the passage of this act execute with the company, in the name of the city, the company consenting thereto, a contract in writing for the sole and exclusive use of the tunnel and subway and appurtenances for the period of twenty-five years from the beginning of the use of the tunnel, at an annual rental equal to four and one half per cent of the net cost of the tunnel and subway, respectively, for the running of trains and cars therein, and for such other uses and upon such provisions and conditions, not affecting the term or rental, as the commission and the company may agree upon, or in case of difference, as the board may determine. The provisions of this act, in so far as they declare, define or establish the terms and conditions for the construction, tenure, maintenance and operation of said tunnel, subway and appurtenances, shall be embodied in and made part of said contract. The use of the tunnel or subway respectively shall begin when, in the opinion of the commission, a reasonable time after completion has been allowed for equipment. The net cost of the tunnel and subway respectively shall be deemed to include all expenditures incurred in acquisition and construction, including damages, expenses and salaries of the commission, and interest at three and one fourth per cent per annum on the debt incurred in construction prior to the beginning of the use. If the contract for the use of the tunnel and subway is executed as above provided the commission, upon the acceptance of this act by the voters of the city as hereinafter provided, shall proceed with the work of construction." "SECTION 19. If the contract for the use of the tunnel and subway is executed by the commission and the company as hereinafter provided, this act shall be submitted for acceptance to the voters of the city at the next municipal election, and if accepted by a majority of those voting thereon at such election it shall thereupon take full effect. The city shall have, hold and enjoy in its private or proprietary capacity, for its own property, the existing subway, the East Boston tunnel, the Cambridge Street subway and the tunnel and subway built under this act, and all rents, tolls, income and profits from all contracts heretofore or hereafter entered into for the use of said subways or tunnels or any part thereof, and the same shall never be taken by the Commonwealth except on payment of just compensation: provided, however, that so much of such rents, tolls, income and profits as may be necessary therefor shall be paid into the respective sinking funds for the redemption of said bonds and used for the payment of the interest thereon.” M. L. Fahey, for the petitioner. |