the premises as of that date. Wilkinson v. Libbey, 1 Allen, 375. Amory v. Melvin, 112 Mass. 83. Richardson v. Gordon, 188 Mass. 279. Welch v. Phillips, 224 Mass. 267. Under this long established construction the defendants are liable for the 1915 tax. The clause "beginning with the taxes of 1910" presumably made them liable for the 1910 tax, for which otherwise they would not be responsible. See Wilkinson v. Libbey, 1 Allen, 375, 376. It does not show an intention to relieve the lessees from the burden of the 1915 tax, which is the only one in question.

The second count is based on the covenant as to repairs. The defendants plainly are liable for all the items that were allowed by the auditor, with the possible exception of those numbered 5, 6, 8 and 14. The defendants contend that they are not responsible for these four items, amounting to $152.80, on the ground that they represent work done by the plaintiff in compliance with the notice from the building commissioner. This notice was dated May 21, 1915, prior to the termination of the lease. It called attention to the fact that an inspection of the premises showed a violation of the building laws in certain specified particulars relating to the elevator, and notified the owner "to correct the violation and abate the nuisance at once." The four requirements in the notice which the lessees refused to comply with, and which were performed by the plaintiff, embraced the replacing of the broken grillwork top of the elevator, a re-winding of the armature to reduce excessive speed, renewal of the car shoes, the installing of a light in the car and another in the machine room, and the covering of the landing doors with sheet iron to make them fireproof. See St. 1913, c. 806, § 4; St. 1907, c. 550, § 132, as amended by St. 1913, c. 586, § 2.

The lessees had covenanted "to keep all and singular the premises in such repair, order and condition as the same are in at the commencement of said term, and make all repairs, replacements and improvements of whatever nature" including the elevator, electric motor, and any other machinery or fixtures in the building; and to yield up the premises "in good repair, order and condition in all respects, reasonable use and wearing thereof and damage by fire or other unavoidable casualty excepted." They further had agreed that no use should be made of the premises "which shall be unlawful, improper, noisy, or offensive, or contrary to any law

of the Commonwealth, or ordinance . . . for the time being in force, of the city." The auditor found that the elevator was deficient in the particulars specified in the notice of the building commissioner, and that the prices paid by the plaintiff for the work and materials were fair and reasonable. It would seem that independently of the notice it was the legal duty of the defendants to do some of the work in question, because rendered necessary in the ordinary course of occupation, such as the replacing of the elevator covering, which had become broken and was partially removed during their tenancy.

But assuming that it would not have been necessary to do any of this work during the term except for the legal requirements of the building commissioner, yet these changes became necessary for the lawful use of the elevator. Under the statute relative to buildings in the city of Boston, St. 1907, c. 550, which was in force when the lease was executed, and since, it was provided (§ 38) that such elevator shaft openings should be furnished with metal-covered or incombustible doors; and that the commissioner might require additional safeguards which in his judgment were demanded. By § 132, any structure maintained in violation of the provisions of the statute is "deemed a common nuisance;" and whoever maintains any structure or any part thereof in violation of any provision of the statute is punishable by a fine. See also St. 1913, c. 586, § 2, and c. 806. By using the elevator without making the changes under consideration the defendants were making an unlawful use of the premises. By reason of their failure to abate the nuisance before the lease expired the landlord was compelled to do so; but the express terms of the lease imposed upon them the expense of making those reasonable repairs and improvements which were required for the lawful, tenantable use of the premises. Taylor v. Finnigan, 189 Mass. 568. Lumiansky v. Tessier, 213 Mass. 182. Barnett v. Clark, 225 Mass. 185.

The defendants have not argued the exceptions taken to the admission of evidence before the auditor, whose findings of fact were made final by the rule. See R. L. c. 165, § 55, as amended by St. 1914, c. 576, § 2. Assuming that these questions are open to the defendants under their requests for rulings, it may be said that the notice of the building commissioner, which was objected to, was called to the attention of the defendants by the plaintiff

before the expiration of the lease, and virtually was embodied in the conversation between the parties; and at the hearing on the motion to re-commit the auditor's report it was made a part of the report by consent of the parties. That the work in question was done because of the requirements of that notice is now relied upon by the defendants themselves. No question of the formal proof of the laws and ordinances involved was raised by the hearing.

The evidence offered relative to the assessment and payment of taxes in Boston was immaterial. Amory v. Melvin, 112 Mass. 83, 87.

It follows that there was no reversible error in refusing the requests for rulings and that the judgment for the plaintiff was ordered rightly.

Exceptions overruled.
Appeal dismissed.

JOHN W. BURNHAM vs. BOSTON AND MAINE RAILROAD.

Middlesex. March 29, 1917. - June 25, 1917.

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

Negligence, Railroad, In use of steam, Proximate cause.

At the trial of an action against a railroad corporation for personal injuries received in 1910, there was evidence tending to show that at nearly midnight the plaintiff was waiting upon a station platform for a train for which he had purchased a ticket, that, as the train approached and was two or three hundred feet away, he walked along the platform two or three feet from the edge and in the direction in which the train was going, the track being on his right hand side, and then turned around and faced the train as the engine was about to go by him, that the train was going "very slowly"-" perhaps a little faster" than “ "a man could walk," that, when the rear platform of a car that the plaintiff intended to board came opposite to him, a sudden gust of steam" came from between the car platforms and completely enveloped and blinded, dazed and startled him, that he instinctively fell back, fell down and somehow in some unknown way rolled underneath the train and his right foot was run over by the forward truck of the car next after the one that he had intended to board. Held, that the question, whether the plaintiff was in the exercise of due care, was for the jury. At the same trial there also was evidence, tending to show that the accident was at the station in Wakefield in November, that the only way that the steam could get out between the cars was between loose couplings in a hose that carried steam for heating purposes from car to car, that it was the duty of employees of the defendant in Boston to inspect the couplings before the train left the station there, and "that if the couplings had been properly inspected in Boston

there would be no leak, but that sometimes they are not hammered down as hard as they are at others and there is apt to be a leak; that whether or not there is a leak depends upon how thoroughly the inspectors have done their work." Held, that the questions, whether the escape of steam was caused by negligence of employees of the defendant and whether the defendant had exercised the degree of care required of it as a carrier of passengers for the safety and protection of the plaintiff as a passenger, was for the jury.

On the evidence above described it further was held, that the jury were warranted in finding that the fall and landing of the plaintiff's body upon the track were the result of a force carrying the body downward and toward the track when the plaintiff lost his equilibrium due to the escaping steam.

It is a matter of common knowledge that the material effect of a sudden and unexpected gust of steam striking a person would be, at least momentarily, to disturb and startle that person to a movement of avoidance of danger and to self protection.

Since the jury would have been warranted in finding that the employees of the defendant in the above described action, if they had exercised ordinary prudence, could have foreseen that steam probably would escape from leaks in couplings of the steam hose improperly connected between the cars, and that they would have anticipated that the probable consequences of such escape of steam would be an injury of some kind and degree to some person whom it should strike or envelop, a further finding by them, that negligence of the defendant's employees was the proximate cause of the plaintiff's injuries, was warranted.

TORT for personal injuries received on November 12, 1910, while the plaintiff was upon the platform of the defendant's station at Wakefield under the circumstances described in the opinion. Writ dated December 13, 1910.

In the Superior Court the action was tried before Pratt, J. The material evidence is described in the opinion. At the close of the evidence the defendant asked for the following rulings:

"1. There is not sufficient evidence to justify a verdict for the plaintiff.

"2. The jury are not justified in finding negligence on the part of the defendant or of its agents or servants if they find that the only steam near the train was the steam which came from the engine.

"3. The jury are not justified in finding that the plaintiff was in the exercise of due care.

“4. If the jury find that the plaintiff was confused by steam coming from between the cars while he was attempting to board a moving train, the plaintiff cannot recover."

The judge gave the second and the fourth rulings and refused to give the first and the third.

The defendant requested the judge to order a verdict for the

defendant, but the judge submitted the case to the jury upon the following stipulation, which was agreed to by the counsel for both parties: "If the jury find a verdict for the defendant, the verdict is to stand. If the jury find a verdict for the plaintiff, the verdict is to be set aside and the case reported to the Supreme Court with the stipulation that if the ruling of the court ordering a verdict for the defendant is correct, there shall be judgment for the defendant. If ruling or ordering a verdict by the court for the defendant was incorrect, then judgment is to be entered for the plaintiff in the sum found by the jury."

The jury found for the plaintiff in the sum of $3,000, which verdict the judge immediately set aside in accordance with the terms of the stipulation and by his order the jury returned a verdict for the defendant. After the death of Pratt, J., the case was reported according to the terms of the stipulation by Hardy, J. C. J. Muldoon, Jr., for the plaintiff.

L. T. Trull & J. M. O'Donoghue, for the defendant.

PIERCE, J. The evidence was conflicting but warranted the jury in finding that the plaintiff, who resided in Reading, had come to the Wakefield station to take a north bound train leaving Wakefield for Reading about 11:30 o'clock P. M.; that he arrived at the station about five minutes before the train time and purchased a ticket from the station agent; that when the train approached from the south and was two or three hundred feet away, the plaintiff walked some fifteen feet north along the platform and within two or three feet of its edge, the tracks being on his right hand side; that he then turned around and faced the train just as the engine was about to go by him; that the train was coming to a stop going "very slowly"-"perhaps a little faster" than "a man could walk;" that the plaintiff intended to board the rear platform of the smoking car; that that car was either the first or second car of the train; that when the step of the rear platform of the smoking car was about opposite where the plaintiff was standing "a sudden gust of steam" came out from between the car platforms and so completely enveloped the plaintiff that a witness who stood on the platform of the car could not see him; that the cloud and gust of steam blinded, dazed and startled the plaintiff; that he instinctively started back, fell down, and somehow in some unknown way rolled underneath the train and his