where the accident occurred was introduced in evidence. The evidence showed that the four main tracks of the Providence Division of the defendant were located near the place of the accident; that there was what was called the lead track, with which the other tracks in the yard connected, which left the most northerly main track at a point near the overhead bridge at Gainsborough Street; that from a point near the last named street other tracks were laid from the lead track to the east, connecting with the turntable; and that then there were three other tracks, namely, the runaround track, the coal track and the trestle track. The last named track was the most northerly and was connected with a coal shed upon a trestle. At a point north of the most northerly track and about two hundred and fifty feet from Gainsborough Street was a switchman's shanty. A switch opposite the shanty controlled the coal track and the runaround track. It was the duty of the plaintiff's intestate to attend this switch. To obtain coal for engines it was the practice to run them into the yard from the main track upon the lead track, thence on to the coal track by means of the switch; after getting coal they would return over the runaround track which joined the coal track at a point about opposite the switchman's shanty. In this way engines were able to go to the coal shed and return without obstructing the passage of each other.

The circumstances of the accident as shown by the evidence were as follows: Upon the morning of August 12, 1912, a passenger train, drawn by engine 1698 in charge of engineer Boylan and fireman Hanley, arrived in Boston from Washington, Rhode Island, and after its passengers were discharged at the South Terminal Station and its cars were left at the Roxbury yard, the engine passed by the switch at Gainsborough Street and then was backed toward the coal shed for the purpose of obtaining coal. The signal at this point was set for the engineer to proceed, and as the engine approached the switch which would permit it to run fron the lead track to the coal track, the decedent, Herlihy, threw the switch and motioned for the engineer to come ahead. At that time another engine in charge of one Schilleu, an engine hostler, was coming from the coal shed on the runaround track and stopped soon afterwards. The undisputed evidence shows that after Herlihy had thrown the switch for Boylan's engine to ap

proach and had motioned for him to come ahead, that he ran in front of this engine from the northerly to the southerly side of the tracks, stumbled and fell, and received the injuries that resulted in his death. There was evidence that when he fell he was from twelve to twenty feet from the tender of the engine, which was backing at the rate of three to four miles an hour; at that time the engineer was on the left side of the engine cab as one faced the rear, and the fireman was on the right side; that the engineer from his position could not have seen Herlihy from the time when he started to run across the track up to the time of the accident; and that the motion from Herlihy to proceed was transmitted from the fireman to the engineer. Hanley testified that the last time he saw Herlihy he (Herlihy) stood at the switch and about twenty feet from the end of the tender; that Herlihy gave the motion for the engine to back up and then he (Hanley) turned his attention to the fire; that a few seconds later the emergency brakes were applied; and that he did not again look ahead after he saw Herlihy twenty feet away.

It is the contention of the plaintiff that the accident was due to the negligence of Hanley in not giving a signal to stop the engine in time to have prevented it. There can be no doubt that the view of both the engineer and the fireman was more or less obstructed by the tender. The undisputed evidence shows that when last seen by Hanley the deceased stood at the switch in a safe position twenty feet from the tender. Even if the jury disbelieved the testimony of Hanley that his attention was directed to the fire at the moment of the accident, there is nothing to show that either the engineer or the fireman ought to have anticipated that Herlihy would suddenly leave a place of safety and run across the track in front of the tender when it was in such close proximity to him.

It does not appear that at that time there was great danger of a collision between the engine, which struck the deceased and which was proceeding at the rate of not more than three to four miles an hour, and the engine on the runaround track, which upon the evidence was either approaching at a rate of speed of not more than two to four miles an hour or had come to a stop before Herlihy started to run across the track.

The evidence shows that Rule 558 relating to the duties of

firemen, printed in the book of rules of the defendant dated 1907, had been superseded by a rule adopted in 1911.

With the fixed signal set for the engine to approach, and in addition the giving by Herlihy of the motion to come ahead, there was nothing to show that it was not safe to do so. Under these circumstances and in view of all the evidence it is plain that there was no negligence on the part of either the engineer or fireman. We find nothing in the facts as disclosed by the evidence to warrant the jury in coming to a different conclusion. Nihill v. New York, New Haven, & Hartford Railroad, 167 Mass. 52. Bence v. New York, New Haven, & Hartford Railroad, 181 Mass. 221. Dacey v. Boston & Maine Railroad, 191 Mass. 44. Gillis v. New York, New Haven, & Hartford Railroad, 224 Mass. 541. Great Northern Railway v. Wiles, 240 U. S. 444.

The exceptions to the admission of evidence may be disposed of briefly. The plaintiff's exception to the exclusion of the question to the witness Schilleu as to the duty of the deceased to notify the engineer to stop his engine when another engine was approaching from a different direction, cannot be sustained. If the duties of the deceased were defined by any rule of the defendant, the rule was the best evidence; on the other hand if such duties were properly provable by oral testimony, it was for the judge to decide whether the witness was properly qualified to testify upon that subject.

The question to the witness Schilleu, as to the duties of the switchman to give a warning when the fireman was not in his proper place after a switch had been thrown and two engines were approaching each other, was incompetent for the reasons stated in connection with the exception above referred to.

The witness Schilleu, called by the plaintiff, was asked on crossexamination whether he had been requested by the defendant to resign his position in its employ. His answer was in the affirmative. The plaintiff excepted to the answer. The question clearly was competent upon the credibility of the witness.

The same witness was asked upon cross-examination concerning certain testimony given by him at a former trial of the case, which was inconsistent with his testimony at the last trial. The plaintiff excepted to the admission of this evidence unless all the testimony given by the witness at the former trial was put in evidence. The

testimony of the witness given at the former trial was admissible only so far as it tended to contradict his testimony at the last trial. This exception is overruled.

As no error appears in the trial of the case the entry must be Exceptions overruled.

SAMUEL STRAUSS vs. I. SKURNIK & another.

Suffolk. April 2, 1917. May 25, 1917.

Present: RUGG, C. J., DE COURCY, CROSBY, PIERCE, & CARROLL, JJ.

Evidence, Admissions, Offers of compromise.

Where, at the trial of an action for a breach of a contract in writing for the employment of the plaintiff by the defendant as a designer for a certain period, there was evidence that the plaintiff, while absent from the defendant's place of business with his consent, was unjustifiably discharged by a letter and that before he received the letter he returned and had a conversation with the defendant, in which the defendant in effect said to the plaintiff that he, the defendant, could get along without a designer for the rest of the season, and "I will give you $300; and you are a good designer, you could get another position," it was held that it could not be said to have been an error for the presiding judge to admit in evidence so much of that conversation.

But it was held that it was a prejudicial error for the judge at the trial above described to admit in evidence later conversations between the plaintiff and the defendant after the plaintiff had received his letter of dismissal, in which the defendant urged upon the plaintiff terms of settlement, offers of compromise not being admissible as admissions of liability.

CONTRACT for a breach of an agreement in writing for the employment of the plaintiff by the defendants as a first class designer from May 18, 1914, to April 3, 1915. Writ in the Municipal Court of the City of Boston dated October 30, 1914.

On removal to the Superior Court, the case was tried before Hitchcock, J. The material evidence is described in the opinion. There was a verdict for the plaintiff in the sum of $1,442; and the defendant alleged exceptions.

The case was submitted on briefs.

J. Michelman & E. C. Stone, for the defendants.

J. P. Feeney & T. F. Callahan, for the plaintiff.

DE COURCY, J. The plaintiff was employed by the defendants as a designer, under a written contract which would expire April 3, 1915. On September 19, 1914, the plaintiff went to Philadelphia, and thence to New York, where he remained until Saturday, September 26. He returned to the defendants' factory Monday, September 28. The defendants on September 25 sent a letter to him at Philadelphia stating that he had left without their permission, and that they had hired another designer in his place. He brought this action for breach of contract contending that he was absent with their consent. After a verdict for the plaintiff, the case is before us on exceptions taken by the defendants to the admission of certain evidence.

We cannot say that there was error in admitting the plaintiff's testimony of what the defendant Skurnik said to him on Monday, September 28, namely, that they could get along without a designer for the rest of the season, and "I will give you $300; and you are a good designer, you could get another position." At this time the plaintiff had not received the letter notifying him of his discharge, which reached him that evening; and there was no controversy pending between them.

But the plaintiff persisted in getting before the jury the following testimony against the repeated exceptions of the defendants: "Q. Now, did you have any other conversation during that week with Mr. Skurnik? A. With Mr. Skurnik. Q. What was that? A. He tried to explain me that I should take his offer of $300 and to settle with him, because he couldn't agree with his son-inlaw, and that—Q. When you talked with Mr. Skurnik about the $300, do you remember any other conversation you had with him at that time or any subsequent time? A. He always say it was that I wouldn't settle with him-Q. Go ahead. A. That if I were to settle with him, with Mr. Skurnik, I am a good designer, but if I wouldn't settle it there is no job would be offered me in Boston, or somewheres else also."

The main question in controversy was whether the plaintiff had been discharged rightfully, and each party offered evidence in support of his contention. Plainly the foregoing evidence was an offer by the defendants to compromise the plaintiff's claim and was not admissible as an admission of liability on their part. As was long since said by this court: "The rule undoubtedly is, that an offer