quirement is not satisfied by an ineffectual attempt to put the claim in the custody of the board. The word "filed" in this connection imports that the claim is to be placed permanently on the files of the board, so that any person interested may refer to it. The paper on which the claim, with the details set forth in the statute, is written actually must be delivered physically into the possession of the board before it can be said to be filed with the board. Chapin v. Kingsbury, 135 Mass. 580; S. C. 138 Mass. 194. Powers Regulator Co. v. Taylor, 225 Mass. 292, 299. The record as it stands contains no evidence and no finding touching the conduct of the administrator after mailing the claim. An error of law of this sort well might turn out to be decisive. It cannot be regarded as immaterial.

It may be added that the finding that the widow was living with her husband at the time of his death, and therefore is conclusively presumed to have been wholly dependent upon his earnings for support, was not warranted by the evidence. The evidence was that the deceased left his wife on a farm in Poland and came to this country, and that she then hired a man to work on the farm, and that the deceased stated that he "intended to have her come over later on." The deceased left his wife seven months before his death.

The workmen's compensation act makes three different provisions respecting the award of compensation to a widow of a deceased employee dependent upon different states of facts. First: A wife is conclusively presumed to be wholly dependent upon a husband with whom she lives at the time of his death. Second: A like conclusive presumption of entire dependency upon the husband exists in the case of a wife found to be living apart from her husband for justifiable cause or because he had deserted her. Third: In all other cases than these two the question of dependency shall be determined in accordance with the fact as it is at the time of the husband's injury. Part II, § 7, as amended by St. 1914, c. 708, § 3. The evidence in the case at bar did not warrant a finding that there was a living together within the meaning of the act. Nelson's Case, 217 Mass. 467. The cases from other jurisdictions relied upon by the administrator arose under different statutes and need not be reviewed. There was no evidence of a living apart for justifiable cause. New

man's Case, 222 Mass. 563. The compensation to be awarded, therefore, must rest upon the facts as to dependency. See New Monckton Collieries, Ltd. v. Keeling, [1911] A. C. 648. This matter does not seem to have been the subject of much attention at the hearing either by the arbitration committee or by the board. It appears that on two different occasions after coming to this country the deceased sent home money received by him from his minor son. But the amounts are not shown. In this respect there was a mistrial.

Further, there was no evidence to warrant the finding that "the average weekly wages of the deceased employee were $12." The deceased had worked in this country about two months before his injury. His wages during that time were $12 per week. That was all that he earned. During the period of five months before he had been unemployed. Manifestly there was no basis on these facts for ascertaining "average weekly wages" under the definition in Part V, § 2, to the effect that these words "shall mean the earnings of the injured employee during the period of twelve calendar months immediately preceding the date of the injury, divided by fifty-two." Nor is this a case like Bartoni's Case, 225 Mass. 349, where the employment has been for a period of fifty-two weeks with interruptions due to bad weather. It appears to be a case where the remaining words of the definition are applicable, viz., "Where, by reason of the shortness of the time during which the employee has been in the employment of his employer, or the nature or terms of the employment, it is impracticable to compute the average weekly wages, as above defined, regard may be had to the average weekly amount which, during the twelve months previous to the injury, was being earned by a person in the same grade employed at the same work by the same employer; or, if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district." But there is no evidence to show which of these two clauses was applicable in the case at bar, nor to show whether the board in making a decision as to the amount of compensation followed correct rules of law. See Gillen's Case, 215 Mass. 96. See, also, Greenwood v. Joseph Nall & Co. Ltd. [1917] 1 A. C. 1.

The act provides that "No party shall as a matter of right be entitled to a second hearing upon any question of fact." Part III,

§ 10, as amended by St. 1912, c. 571, § 13. Ordinarily, where there has been a full hearing there should be no retrial, but a final decree should be entered. Doherty's Case, 222 Mass. 98. Lacione's Case, ante, 269. This case falls within that class. The decree should be reversed and a decree entered to the effect that there is no claim against the insurer.

So ordered.

ELLEN KELLEHER, administratrix, vs. CITY OF NEWBURYPORT. SAME vs. SAME.

Essex. March 9, 1917. - June 27, 1917.

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

Way, Public: defect. Evidence, Matters of common knowledge. Motor Vehicle. Proximate Cause.

Extraordinary and unnecessary slipperiness in the surface of a public street in a city, due to its being oiled the day before by the superintendent of streets, may be found to be a defect in the way within the provisions of R. L. c. 51, §§ 17, 18.

It is common knowledge that at present in this Commonwealth a vastly larger number of people travel upon the highways in motor vehicles than in horse drawn vehicles.

The care as to the repair of ways cast upon municipalities by the statutes has reference to all kinds of legitimate travel, including that rightly undertaken in motor vehicles.

If, owing to extraordinary and unnecessary slipperiness of a city street, due to its having been oiled the day before by the superintendent of streets, a motor car driven with due care is caused to skid and strikes a wagon rightfully standing in the way, inflicting upon the driver of the wagon bodily injuries which result in his death, it may be found that such injury and death occurred by reason of a defect in the way, so that actions may be maintained under R. L. c. 51, §§ 17, 18, because the collision with the motor car, happening without fault of the driver of either vehicle, did not break the connection between the defect as a cause and the bodily injuries to the driver of the wagon as a result.

The fact, that the oil above described was applied to the street by the city's superintendent of streets, does not relieve the city of responsibility for the defect on the ground that his negligence was the negligence of a public officer, the city's liability being statutory and founded upon the existence of a defect of which it had notice because it was created by its employees.

The fact, that rain which fell during the night after the application of the oil was

a factor in creating the danger, does not necessarily relieve the city from liability, because it might be found that rain should have been anticipated or that its effect should have been guarded against by warning, sanding or otherwise.

If one suffering from heart disease receives a bodily injury by reason of a defect in a highway, following which his physical condition steadily deteriorates until he dies, and if, at the trial of an action for the loss of his life under R. L. c. 51, § 17, his attending physician gives categorical testimony to the effect that the injury was a sufficient cause for the death, a finding that the loss of life occurred by reason of the defect in the way is warranted, since it may be found that the heart disease was a condition and not a cause of the death.

TWO ACTIONS OF TORT under R. L. c. 51, the first under § 18 for personal injury to, and the second under § 17 for the loss of the life of the plaintiff's intestate under the circumstances described in the opinion. Writs dated December 29, 1915.

In the Superior Court the cases were tried before Dana, J. The material evidence is described in the opinion. At the close of the evidence the defendant asked for the following rulings and instructions:

"1. That upon the facts, as alleged in the declaration, and upon all the evidence introduced, the defendant is not liable for the damage done to the plaintiff's intestate.

"2. If the jury find that the accident was caused by the negligence of the superintendent of streets, either in the way the oil was applied or in not sanding afterwards, then the city is not liable."

The judge declined so to rule and instruct. The jury found for the plaintiff in the first action in the sum of $700, and in the second action in the sum of $2,800; and the defendant alleged exceptions.

H. I. Bartlett, for the defendant.

R. E. Burke, for the plaintiff.

RUGG, C. J. These two actions are brought to recover for the conscious suffering and death of the plaintiff's intestate, hereafter termed the plaintiff, alleged to have been caused by a defective condition of a highway. There was evidence tending to show that the accident occurred in this way: The plaintiff, a milkman, was watering his horse at a fountain in the street between eight and nine o'clock of a misty morning, when an automobile carefully driven came upon the street and, by reason of the extremely slippery condition of its surface due to its being oiled on the preced

ing afternoon by those in charge of the defendant's streets, began to skid, could not be controlled, and came into collision with the plaintiff's milk wagon, whereby the plaintiff was injured and subsequently died.

1. There was evidence that the defendant failed in the performance of its statutory duty to maintain the way reasonably safe for travel, and permitted to exist a defect consisting of extraordinary slipperiness in the surface of the street. Mere smoothness and slipperiness of a sidewalk may be a defect. Cromarty v. Boston, 127 Mass. 329. Moynihan v. Holyoke, 193 Mass. 26. Oil spread upon the surface of the street, thus rendering it unreasonably slippery, is in no wise distinguishable, so far as concerns the legal principles involved, from the Hyatt lights in issue in these cases. Zegeer v. Barrett Manuf. Co. 226 Mass. 146.

2. Cities and towns are not required by the law to make special provisions in order to keep all their public ways at all times in condition for the safe passage of automobiles, bicycles and other mechanisms for travel newly devised and unthought of at the time when the statute imposing the general duty as to repairs of ways and liability for defects therein was enacted. But they are obliged to keep their ways reasonably safe and convenient for travel generally, having regard to all the circumstances. Automobiles are recognized by the law as a legal method of travel. Elaborate statutory provisions are made for their registration, for the licensing of those who operate them, and for their management upon public ways. It is common knowledge that at present in this Commonwealth a vastly larger number of people travel upon the highways in automobiles than in horse drawn vehicles. The care as to the repair of ways cast upon municipalities by the statutes has reference to all kinds of legitimate travel, including that rightly undertaken in automobiles. Although special provisions for their safety are not demanded, their presence cannot be ignored. The subject is considered fully in Doherty v. Ayer, 197 Mass. 241, and need not here be discussed again.

3. There was ample evidence of the due care of the person driving the automobile which struck the plaintiff's wagon. The mere fact that it skidded does not show negligence. Williams v. Holbrook, 216 Mass. 239. Loftus v. Pelletier, 223 Mass. 63.

4. If the conduct of the driver of the automobile was cautious,